Last week the Supreme Court (in R (AAA) v Home Secretary) found the UK government’s policy to send asylum applicants to Rwanda unlawful on the grounds that “removal … to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement” [149]. In response, the Prime Minister announced that the government intends to “take the extraordinary step of introducing emergency legislation” which “will enable Parliament to confirm that… Rwanda is safe”.
This post argues that the problems identified in the Supreme Court judgment cannot be rectified by bilateral treaty-making and UK legislation. Rwanda is not a safe destination for people currently claiming asylum in the United Kingdom, and measures like that cannot suffice to make it safe. Any legislation to that effect would be a legal fiction. And whilst Parliament undoubtedly has the authority to enact legal fictions, using that power in this way would be an abuse of Parliament’s legislative authority, which may even call into question the limits of parliamentary sovereignty itself.
The Safety of Rwanda
The factual situation the court sets out is multidimensional and difficult to summarise. But I will try.
First, the prevailing political background in Rwanda raises “profound human rights concerns” including extra-judicial killings, deaths in custody, enforced disappearances and torture, in particular of critics of the government [76].
Secondly, whilst the law on paper is technically compliant with international standards, the asylum system is in reality dysfunctional [78]. Applications appear to be (unlawfully) sifted within the National Intelligence and Security Service [79]. The body which determines applications is part-time and non-specialist, and its decisions are unreasoned [80]. The enacted two-stage appeals process barely exists: only 5 applications went through the first stage in 2021 [81] and the second stage, an appeal to the High Court, has apparently never been used [82]. The process fails to secure independence from the government either in the activities and composition of the relevant institutions, or in the advice available to applicants [83]. There is evidence of bias in determinations, including against groups which would be significantly represented in relocations from the UK (namely “nationals of Afghanistan, Syria and Yemen” or “persons from the Middle East and Afghanistan”) [85], and of politicisation of the system “in the interests of the Rwandan government’s foreign relations” [86]. And the government both threatens [86] and practices [87] refoulement and demonstrates apparently inadequate understanding of the “requirements of refugee law” in general and “the concept of refoulement” in particular [91].
Thirdly, there is the experience of a similar (but smaller in scope) agreement which Rwanda entered into in 2013, under which some applicants for asylum in Israel were transferred to Rwanda in order for their claims to be processed there [95]. Rwanda committed “serious breaches” of this agreement, including “routinely… clandestinely” moving applicants to Uganda [96]. The arrangement was criticised by the United Nations Committee Against Torture [98].
Whilst some of this is contested the general thrust is known by the UK government. A compelling – and (factually) authoritative – picture emerges from the court’s exposition of this evidence. Rwanda is not safe. Removing people to Rwanda for asylum processing creates a “real risk” of ill-treatment, in particular by refoulement.
Legislating Rwanda to Safety
The legal framework which grounds the unlawfulness has its roots in international law – particularly the United Nations 1951 Refugee Convention and its 1967 Protocol (The Refugee Convention) [5]. But the prohibition on refoulement has been systematically endorsed in domestic statutes. The court relies on the Asylum and Immigration Appeals Act 1993, the Nationality, Immigration and Asylum Act 2002 and the Human Rights Act 1998 as instruments, adopted by Parliament, which give effect in domestic law to this principle [27-29]. Furthermore, whilst the court is tentative on the question of whether the principle “also forms part of customary international law” (“it may be”) [25] it does bring attention to the fact that the United Kingdom has itself subscribed to that view. The United Kingdom’s commitment to the principle runs deep.
Significantly, the government has expressed (as far as I am aware) no intention to change this accumulation of domestic legal enactments which prohibit removals which create a risk of refoulement. In other words, the government apparently intends to respond to AAA whilst leaving intact the existing domestic framework.
The Prime Minister declared that the government will conclude a new treaty, and enact legislation enabling “Parliament to confirm that, that with our new Treaty, Rwanda is safe.” The Immigration Minister has said that the proposed legislation will “determine Rwanda as a safe country” and also declared a timetable for this project, saying that it is “absolutely critical that flights go off to Rwanda in the spring”.
As there are no special constitutional processes for emergency legislation, this legislation will have to be approved by Parliament in the normal fashion. If it meets resistance in the House of Lords, the non-legal rules which might otherwise facilitate its passage are not, in this instance, available. The Salisbury Convention (which protects legislation delivering manifesto promises) does not apply here. If anything, the policy in fact violates the promise in the 2019 Conservative manifesto to “continue to grant asylum and support to refugees fleeing persecution”. And there is no longer sufficient time to use the procedures in the Parliament Act(s) to force the legislation through against the objections of the Lords before the next general election.
Even so, can Parliament successfully legislate to address the risk of refoulement which currently afflicts removals to Rwanda? Conor Casey has argued that it should succeed, assuming it is based on “more rigorous assurances from Rwanda”. In the Commons, the Home Secretary similarly cast the problem as one of uncertainty and rigour – characterising the aims of the renewed agreement as being clearer and firmer that people removed to Rwanda under this policy must not subsequently be moved on to yet another country. Other connected arguments concern the level of UK monitoring of compliance, the depth of Rwanda’s new assurances, and the clarity with which Rwanda is prohibited from subsequently mistreating those sent there under the new agreement.
All of this misses the point. These arguments are disconnected from the nature of the risk they are supposed to address. That risk is not an issue of the United Kingdom’s domestic regulatory framework, or something that the conclusion of an international agreement can (by itself) change. The risk, which is very clearly identified in the UKSC decision, is this: Rwanda currently lacks the institutional and political-cultural capacities and commitment necessary to operate an asylum system which does not involve a risk of refoulement. Addressing that risk is a significant institutional and political-cultural undertaking. But the court also demonstrates that Rwanda’s government does not fully understand what doing so successfully requires. And that Treaty-based obligations have a track record of failing to prompt progress. In other words, Rwanda is not a safe destination for an asylum outsourcing policy independent of the content of any treaty it has made or will make with the UK, and independent of the content of UK domestic law. It is simply not plausible to argue either that in the current situation the issue is grounded in paper commitments or that modified paper commitments will be the solution.
Can Rwanda be made safe? I hope so. Rwanda already receives, via what the UKSC characterises as an “open door policy” [77], significant flows of migrants, especially refugees from conflicts in neighbouring countries. According to the UNCHR’s latest figures, there are currently “132,305 refugees, asylum seekers, and other displaced populations” in Rwanda, mainly from the Democratic Republic of Congo and Burundi. Furthermore, 94% of this displaced population live in camps, where they are dependent on the World Food Program for basic necessities. 87% are categorised as “highly vulnerable”. These people (and not the UK government) are the real victims of the human rights situation which also (but really, only incidentally) renders the UK policy unlawful. Any improvement would be good not just for the UK, but for humanity as a whole. But that will require a long and involved process. As the Court said explicitly [105], in terms cited verbatim by the Home Secretary in the House of Commons – it means “structural changes and capacity-building” [105]. This is a project that requires substantially more than a Treaty, and whose success would be measured in years, not months. The UNHCR aims for the existing displaced population in Rwanda to “live in a safe environment where their protection needs are met” by the end of 2025 – but even this is nested within longer term strategies including the United Nations 2030 Agenda for Sustainable Development and the African Union’s Agenda 2063.
In the meantime, it is not possible for the UK to simply legislate Rwanda to safety, or to make it safe by negotiating and concluding a Treaty, or both. Any legislation which Parliament enacts in the foreseeable future which provides that Rwanda is safe, or is to be considered or regarded as safe for certain purposes (and so on) would not be a truthful statement of the situation on the ground in Rwanda. It would be enacting a falsehood into law. It would be a legal fiction.
Legal Fiction(s)
Legal fictions are not that unusual. Lon Fuller wrote that “there is scarcely a field of the law in which one does not encounter one after another of these conceits of the legal imagination”. He counted as legal fictions:
either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognised as having utility.
(p 9)
The proposed legislation would qualify under both limbs of this definition. Everyone involved would be conscious of its falsity. And the enactment of the falsity would be precisely because of its supposed utility – namely that it would have the effect of requiring the courts to treat Rwanda as a safe country for the purposes of asylum law (at least), and thereby it would empower the government to circumvent the legal prohibition on removals to unsafe destinations, and pursue its Rwanda policy without amending that prohibition or being at risk of the policy being found unlawful on that basis.
Parliament (and indeed other law-makers) can enact fictions – hence their ubiquity. In his Introduction to a leading contemporary collection on the issue, Maksymilian Del Mar assembled a preliminary catalogue of these uses: being used to “combat evasions of responsibility” (or, conversely, to “enable evasions of responsibility”), to address “difficulties of proof”, for “mitigating the harshness of a rule”, to “retain and keep intact, or not undermine, a pre-existing rule (or body of rules)”, “enabling disputes to be decided or creating a more convenient, more cost-effective route”, to permit disputes “to be decided without creating a new rule” and as engines of “enabling change and the development of law”.
Still, the proposed Rwanda fiction is distinctive even assessed against this background of ubiquity and variety. It would involve the deliberate enactment as fact of a dangerous falsehood, designed to empower the executive to evade legal requirements. Its “utility” (to borrow Fuller’s term) would be to exempt the executive from the rule of law, in ways likely to cause serious harm, and indeed deaths. It cuts across the grain of the majority of uses for legal fictions in Del Mar’s catalogue, which is almost entirely a catalogue of potentially virtuous aims. Indeed, significant criticism of legal fictions tends to argue not against fiction per se, but against the technique of pursuing honourable ends by dishonest means. The only entry on Del Mar’s list where legal fictions are used for straightforwardly malign or deceptive purposes is their sometime use as a way to “enable evasions of responsibility”. Here, he is referring to the work of Lind – who introduces that possibility precisely to attack it as a misuse of the technique of fiction. “Used nefariously” Lind points out, legal fictions “work injustice”.
This is plainly the intent behind the Rwanda fiction, which is a peripheral instance of that phenomenon: an attempt to abuse the possibility of legislating fiction in order to dishonestly attain unjust ends. Jeremy Bentham was rather less relaxed than Fuller, or Del Mar and the various contributors to their collection, about legal fictions. In fact, in his inimitable style, he once wrote that:
fiction is a syphilis, which runs in every vein, and carries into every part of the system, the principle of rottenness
Now, in general terms this goes too far. But it perfectly captures the proposal at hand. It would be distinctive and dangerous, and just because Parliament can legislate in a certain way doesn’t mean it should. In fact, procuring the passage of legislation which falsely enacted that Rwanda is a safe destination for asylum applicants would be a grave abuse of legislative authority.
Parliament’s Legislative Authority
If Parliament did enact the Rwanda fiction, at the very least it ought to be met with interpretive hostility in court. The courts have no reason to cooperate enthusiastically with a dangerous legal falsehood designed to undermine the rule of law. And the common law, in the principle of legality, certainly possesses the necessary interpretive resources. But this may even be a situation where the courts go further: either by straightforwardly refusing to honour the legislation, or by adopting an interpretation so hostile that it is effectively disingenuous and best understood as a disapplication.
The idea that some fictions might be beyond the pale, outside Parliament’s capacity to legislate, does not feature in the literature on legal fictions. And the idea that such a beyond-the-pale fiction might count as a possible limit on parliamentary sovereignty is not part of the literature on parliamentary sovereignty. In fact – on the contrary – Parliament’s capacity to legislate falsehood (e.g. that “black is white” and similar) is often seen as something which counts in favour of the conclusion that there are no limits on Parliament’s power.
Nevertheless, parliamentary sovereignty is a doctrine which has – at the very least – somewhat frayed edges in the contemporary constitution as it comes under various pressures. The Rwanda fiction – even if it is not, in the event, actually legislated – might provide a new source of such pressure. It pushes the boundaries of responsible use of Parliament’s power, it cuts against the grain of existing and accepted uses of legal fictions, and its consequences would likely include humanitarian disaster. I think it’s certainly possible that, at the very least, damaging fictions like this now count as a novel entry in our canon of possible limits of parliamentary sovereignty. And, setting its novel content aside, its purpose already ties it into existing traditions of scepticism about parliamentary sovereignty. It is an attempt, in a novel form, to undermine the rule of law. And this brings it directly into contact with some other species of challenge to parliamentary sovereignty in the contemporary constitution.
First, Patrick O’Brien has (already) presciently characterised the Rwanda fiction as “ouster-adjacent”. And in a similar vein, Tom de la Mare has given it the label of “topical ouster”. Its effects – if not its form – are essentially the same as an ouster clause. It simply achieves those effects in a different way. But the common law hostility to ouster clauses is not grounded in their form. It is grounded in their effects and the way they undermine the rule of law by purporting to exclude the executive from compliance with the law. Therefore the full force of the tradition of interpretive hostility to ouster clauses might also be amenable to deployment against the Rwanda fiction. That tradition comes into conflict with parliamentary sovereignty in the sense that it can result in legislation being given implausible constructions which override the clear intention of Parliament.
Secondly, the famous minority dicta in Jackson are a subtle but pervasive background feature to the contemporary constitution. Those dicta reflected a willingness to contemplate refusing to apply legislation which removes executive action from judicial supervision. Whilst the court has not since exercised that power to strike down or disapply legislation which offends the rule of law, those dicta remind us that in the right circumstances, senior judges may still feel the temptation to do just that. And the enactment of the Rwanda fiction may yet provide those circumstances.
Conclusion
In their responses to the judgment in AAA, the Prime Minister and the Home Secretary both underlined their commitment to the rule of law, and to respecting the court. But the centrepiece of their proposed response to the judgment is to legislate a dangerous fiction into domestic law, in order to permit the government to circumvent the restrictions which currently render its Rwanda policy unlawful, but without truly addressing the factors which led the Supreme Court to make its finding of unlawfulness. This straightforwardly undermines the rule of law. And deliberately so – it is designed to permit the government to evade its legal responsibilities. And that evasion is likely to have devastating effects.
In the meantime, to summarise: Rwanda is not safe. We cannot simply make it so. Legislation to that effect would be a legal fiction. This particular legal fiction would be a particularly dangerous falsehood – and its enactment would be an abuse of the broad authority that our constitution accords to the Westminster Parliament. It may even be sufficiently abusive to take it outside that legislative authority.
Adam Tucker, University of Liverpool
(Suggested citation: A. Tucker, ‘The Rwanda Policy, Legal Fiction(s), and Parliament’s Legislative Authority’, U.K. Const. L. Blog (22nd November 2023) (available at https://ukconstitutionallaw.org/))
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