In November 2023, the Supreme Court of the UK dealt a critical blow to the government’s proposal to send certain asylum seekers to the Republic of Rwanda. In AAA and Others v the Home Secretary, the Court ruled that removal to Rwanda would be unlawful because that country was not, at the time, a ‘safe country’. 

The government moved swiftly to address the concerns raised by this judgment, concluding a new treaty with Rwanda which seeks to render Rwanda ‘safe’ by establishing additional safeguards and guarantees. On 22 January 2024, in line with the recommendations of its International Agreements Committee, the House of Lords approved a motion against ratification of the treaty (its first since the Constitutional Reform and Governance Act 2010 (CRAG Act) came into force) until the protections the treaty envisions have been implemented in Rwanda in practice. A motion of this kind does not, however, bind the government or prevent it from ratifying the treaty. What is more, the government has not provided parliamentary time for a debate and subsequent vote on the UK-Rwanda treaty in the House of Commons. 

The government has also presented complementary legislation, the Safety of Rwanda (Asylum and Immigration) Bill, which requires every decision-maker in the UK to treat Rwanda as a ‘safe country’, save for in very limited circumstances. The new legislation must be enacted by Parliament and is – at the time of writing this blog – being considered by the House of Lords, which proposed what Lord Anderson called ‘a series of powerful but measured amendments’ to ensure that it complies with both domestic and international law. Once peers in the House of Lords have finished scrutinising the Bill, it will be returned to the House of Commons for further consideration. Should there be additional amendments, the Bill may be sent back to the House of Lords until both Houses reach an agreement on its exact wording. Upon receiving approval from both Houses, the new Act will come into force on the day the UK-Rwanda treaty enters into force. 

A recurring issue throughout this discussion has been whether there is any international precedent for the UK’s proposed ‘Rwanda plan’. Specifically, if there is comparable experience, what lessons can the UK draw from the practice of other States to ensure it does not repeat mistakes made elsewhere? Australia’s two decades of experience with ‘offshore processing’ in the Pacific have featured prominently in political debate as a ‘model’ which the UK might adopt. A key point which has been overlooked in these debates, however, is that Australia only actively pursued offshore processing for a brief period – between 2012 and 2014 – before its shortcomings forced Australia to pivot to different policies. However, there also continues to be disagreement amongst UK politicians about the extent to which the Australian experience is comparable or relevant to the UK’s current efforts. The Supreme Court did not address this comparison in its judgment in AAA, and parliamentarians appear to be divided over the issue.

The purpose of this post is to settle the debate about whether Australia’s offshore processing policies are comparable to the UK’s proposed Rwanda plan by dispelling common misunderstandings about the former. We demonstrate that, in broad terms, Australia’s policies since 2012 are directly comparable to what the UK is proposing to establish in Rwanda. Having done so, we draw from the Australian experience to argue that a ‘deterrence’ policy of this kind is unlikely to achieve its stated policy objectives, risks creating a serious humanitarian crisis and violating international law, may expose the UK government to financial, legal and reputational liabilities, and carries domestic political risks.

Are the Australian and UK policies comparable? 

In April 2022, when first announcing the Rwanda policy, Home Secretary Priti Patel was quick to dispel any comparison with Australia, declaring the UK’s plans ‘not comparable’, either logistically or financially. At other times, however, direct comparisons have been drawn between the two policies, particularly when it appeared as though the Australian experience might justify or support the UK government’s agenda to ‘stop the boats and secure our borders’. Thus, on 12 December 2023, during the second reading of the Safety of Rwanda Bill in the House of Commons, Home Secretary James Cleverly described the Australian ‘model’ as evidence that ‘deterrence works’ (a claim which is rebutted below). Australia’s offshoring policy was also cited as a success story by, inter alia, Robert Jenrick MP, who remarked on 17 January 2024 during the Bill’s Committee stage in the House of Commons that ‘the only countries in the world that have fixed this problem, latterly Australia and Greece, have been willing to take the most robust action.’ Similarly, during the second reading of the Safety of Rwanda Bill in the House of Lords on 29 January 2024, Baroness Goldie remarked ‘that the examples of Australia and Albania indicate that that approach works’.

The question about whether the Rwanda policy is analogous to Australia’s offshore processing policies received further attention during the Committee Stage in the House of Lords and was debated extensively on 12 February 2024. Lord Horam expressed his strong support for the Australian offshoring policy, claiming that ‘the situation here is exactly analogous to that in Australia, which has been working successfully for 10 years’ and that ‘we should therefore follow the Australian example, which is now operating successfully and is supported by both parties.’ On the other hand, Lord Kerr and Lord Purvis expressed their strong disagreement, while Lord Blunkett described the policy as a ‘one-way ticket to Rwanda’, a policy focused more on political determination than on addressing the real issue of preventing migration by unsafe and illegal routes. 

In light of these statements, it is timely to reflect on whether and how the Australian and UK approaches are, in fact, comparable. Two issues are key to this comparison: i) the processing of asylum claims, and ii) the durable solutions available to those who are found to be refugees or otherwise entitled to international protection.  

i) Processing of asylum claims

During its inquiry into the UK-Rwanda treaty, the House of Lords International Agreements Committee engaged with the issue of ‘precedents for requiring that asylum claims be processed in a third country’, both during the oral evidence session (Q3) on 18 December 2023 and in its final report published on 17 January 2024. The Committee contended that Australian offshore processing policies are distinguishable from the Rwanda plan because, it claimed, asylum applications were processed by Australian immigration officials in Nauru and Papua New Guinea (PNG), and those found to be entitled to protection were then returned to Australia for permanent settlement. By contrast, under the UK-Rwanda policy, certain people seeking asylum in the UK would be relocated to Rwanda, where the Rwandan government would then decide their asylum claims and provide settlement to those entitled to it.

In its report, the Committee stated:

The offshore processing of asylum claims is not new. We received evidence of previous schemes run by a few other countries including Australia. Some other European countries are exploring similar schemes. But we were told that what distinguishes the UK’s current proposals is that they involve the transfer of responsibility for asylum claims to a third country rather than mere processing overseas by officials of the transferring state. 

The above position was also echoed by Lord Kerr (and confirmed by Lord Razzall) during discussions about the UK-Rwanda treaty in the House of Lords on 22 January 2024:

The Government keep referring to what the Australians did in 2012, but that was different: the asylum seekers they diverted to Papua New Guinea were not handed over to the Papua New Guinea authorities. Australian officials went and heard in Papua New Guinea their claims for admission to Australia. Like the arrangement the Italians have been considering with Albania, this was offshoring; what we are talking about is offloading. Those we offload to Rwanda are never to get a hearing for their claim to asylum in this country. We intend to wash our hands of them and declare them inadmissible: Rwanda’s responsibility, not ours. This is unprecedented and unconscionable.

However, the above understanding of the Australian policy is based on an earlier iteration of offshore processing which Australia conducted between 2001 and 2008. At that time, a combination of UN High Commissioner for Refugees (UNHCR) and Australian officials processed asylum claims and many of those found to be refugees were then brought back to Australia. By contrast, under the most recent iteration of offshore processing, which has been in place since 2012, formal responsibility for processing asylum claims lies with the officials of Nauru and PNG. Initially, these officials required very significant support from their Australian counterparts, and in practice processing was – at times – a joint exercise between both States. Nevertheless, since 2012, all claims have been processed under the laws of Nauru and PNG and the relevant officials of those States have gradually come to develop greater independence and capacity in their roles. In this sense, then, the Australian example is comparable to what the UK is proposing to establish in Rwanda.

ii) Settlement of refugees and others entitled to international protection

With respect to settlement, Australian policy since 19 July 2013 has been that no person found to be a refugee offshore will ever be permitted to return and settle in Australia. 

In practice, while Australia (like the UK) originally intended that people found to be in need of international protection would settle in the place where they were processed, over time this intention proved unworkable. Australia was forced to go to exceptional lengths to secure alternative third-country settlement options, including a A$55 million agreement with Cambodia to resettle just seven refugees. Many refugees were resettled in the US pursuant to a unique agreement with the Obama administration which is unlikely to be replicated. Smaller numbers have been resettled in Canada, pursuant to a community-led private sponsorship program, and in New Zealand. By 2023, more than a third of the people who had been sent offshore after July 2013 were yet to be resettled or repatriated, and were instead brought back to Australia. Totalling more than 1,000, they remain in Australia today with the status of ‘transitory persons’ and continue to wait indefinitely for a durable solution elsewhere. 

The UK’s position on this issue appears to be broadly similar to that of Australia. It is possible that more avenues to re-enter the UK may be available to those in need of international protection, however the relevant law is difficult to navigate and allows a wide margin of discretion to the decision-maker. 

Under section 2 of the Illegal Migration Act 2023, the Secretary of State has a positive duty to remove a person who has entered or arrived in the UK ‘illegally’ back to their home country or a safe country. Additionally, the Illegal Migration Act 2023 amends the Immigration Act 1971 to prohibit the Secretary of State from granting leave to enter or remain in the UK to anyone who falls under section 2, except for a minority of persons. For instance, the Secretary of State may waive temporarily the bar on re-entry and grant a leave to enter and remain to a refugee or a stateless person. Specifically, under section 30, a person who has been removed from the UK to their home country or a safe third country will be prevented from returning to the UK unless it is necessary for the UK to comply with its international legal obligations under the ECHR or there are other exceptional personal circumstances to grant leave to re-enter and remain. The Home Office’s Explanatory Notes on the Illegal Migration Bill (prior to becoming an Act) provide additionally that a person will be allowed to return to the UK and be granted leave to enter and to remain ‘where a person having been removed to a safe third country successfully challenges their removal by way of judicial review on ECHR grounds.’ 

Concerning returns from Rwanda, the UK-Rwanda treaty adds an additional layer of complexity. It allows a person relocated to Rwanda to return to the UK in a limited set of circumstances where the UK makes such request (Article 11); the relocated individual is under the age of 18 (Articles 3.4 and 11.3); or their claim to be granted refugee status or other humanitarian protection under Rwandan law is unsuccessful (although Articles 10.2 and 10.3 are not explicit about this). These provisions appear to create routes back to the UK from Rwanda which are additional to those anticipated in the Illegal Migration Act 2023. Some commentators suggest that they might create an incentive for certain asylum seekers to fail the refugee test in Rwanda in order to return to the UK. However, such return may only be temporary pending permanent removal back to Rwanda or another safe third country with which, like Australia, the UK may have to conclude further agreements. 

Lessons to be learned from the Australian experience

i) Offshore processing is unlikely to be a ‘deterrent’

The UK government’s resolve is to deter people from making ‘illegal’, dangerous and unnecessary journeys to the UK, the supposed deterrent being that they will be removed to a less appealing country. During previous parliamentary debates, MPs have claimed that the number of people trying to reach Australia by boat ‘fell off a cliff straightaway’ after the introduction of offshore processing and that offshore processing is ‘the best way to control illegal immigration’ or ‘the single most important step any sovereign nation can take in protecting its own borders against illegal immigration.’

However, one of the most important lessons to draw from the Australian experience of offshore processing is that it was not successful at reducing the number of asylum seekers trying to reach that country by sea. Thousands of people continued to travel on small boats from various parts of Asia and seek safety in Australia during the first year of the policy. In fact, more asylum seekers arrived by boat during that first year than at any other time since the 1970s, when asylum seekers first began to travel to Australia by boat during the Indochinese refugee crisis. The number of arrivals quickly outstripped capacity offshore, forcing the government to admit just a few months into the policy that most future arrivals would in fact remain in Australia. 

Successive Australian governments tried various measures to make offshore processing work, but within two years it was clear that the policy was neither a deterrent, nor sustainable. By late 2014, Australia stopped transferring new arrivals offshore and pivoted to a policy of absolute maritime interception, under which asylum seekers are returned directly to their place of departure, usually without any claims processing – either in Australia or offshore. This practice is unlawful under international law, but has proven to be an effective ‘deterrent’. 

It was only after Australia stopped transferring people offshore and started turning back boats (distinct policies which should not be conflated), that the number of asylum seekers arriving by sea started to decline. In light of this fact, it is concerning that the myth of offshore processing as an effective ‘deterrent’ against boat arrivals prevails in the UK.

ii) Offshore processing risks creating a serious humanitarian crisis 

In 2020, the House of Commons Home Affairs Committee was presented with evidence of the extreme humanitarian crisis unfolding amongst those transferred offshore by Australia. Offshore processing had exposed men, women and children to intense physical and mental suffering from its outset. By the time this issue came before the Home Affairs Committee, the UNHCR had issued repeated warnings about ‘alarming levels of mental illness’ amongst the offshore populations, and Médecins Sans Frontières reported that mental health suffering on Nauru was among the worst the organisation had ever seen, including in projects providing care for victims of torture. Doctors issued dire warnings about the emergence amongst children in Nauru of ‘resignation syndrome’, a rare psychiatric condition which can result in children withdrawing into a comatose state. Eventually, spiralling health crises offshore forced the Australian government to medically evacuate almost the entire population of transferred asylum seekers and refugees back to Australia – either through a special ‘medevac’ scheme or of its own accord.   

iii) Offshore processing risks violating international law and exposing the UK to significant legal, financial and reputational liabilities

The extraordinary costs of offshore processing in Australia have been well documented, and continue even now that the arrangement with PNG has come to an end and the facility on Nauru is almost empty. Additionally, the humanitarian issues resulting from offshore processing caused significant and ongoing legal repercussions for Australia. Australia does not have a statute equivalent to the Human Rights Act 1998, nor any bill or charter of rights, and most of its obligations under international human rights and refugee law are not enshrined in federal legislation. Nevertheless, it has faced a rolling series of legal challenges to its offshore processing policies, including constitutional challenges and negligence claims. In 2017, a class action against Australia on behalf of almost 2,000 asylum seekers who had been transferred to and detained in PNG resulted in a settlement of A$70 million plus costs. Australia has also been sued for wrongful death and mental harm resulting from the murder of an asylum seeker in PNG in 2014, and continues to face civil suits from former staff who were contracted in various roles offshore and allege that they suffered trauma and other serious harm as a result of unsafe working environments. 

At the international level, the ramifications of Australia’s policies have been extensive. Despite Australia going to great lengths to establish offshore processing as ‘wholly a matter’ for Nauru and PNG, and outside its jurisdiction, the UN Human Rights Committee explicitly affirmed in 2017 that ‘the significant levels of control and influence exercised by [Australia] over the operation of the offshore regional processing centres, including over their establishment, funding and service provided therein’ amounted to effective control such as to establish Australia’s jurisdiction and engage its obligations. Other UN bodies and mechanisms have likewise affirmed Australia’s responsibility in connection with violations occurring offshore, either on its own or together with Nauru and PNG.  These authoritative statements should concern countries seeking to emulate the Australian ‘model’, especially those which are also bound by the European Convention of Human Rights. 

There have also been at least six separate communiqués to the International Criminal Court (ICC) since 2014 calling on the ICC to launch investigations regarding crimes against humanity which may have been committed against asylum seekers and refugees in the context of offshore processing. The authors of these communiqués include pre-eminent international jurists, scholars and legal practitioners. This news should be of particular concern to individual members of the UK government and public officials who would be tasked with implementing the Rwanda policy, and who might open themselves to the risk of individual criminal responsibility for their role in any arrangements that meet the threshold for an international crime. 

iv) Offshore processing may generate public outcry and domestic political risks as it unfolds

Domestic concerns about offshore processing in Australia did not abate over time. To the contrary, as stories about the mistreatment of refugees in Nauru and PNG emerged, a series of nation-wide public campaigns to allow people to return to and stay in Australia garnered unprecedented public support. Church leaders united in calls for a more humane approach to asylum and, in an extraordinary move, invoked the ancient tradition of ‘sanctuary’ to offer refugees in Australia shelter and physical protection against removal to Nauru and PNG. National medical associations called for the immediate evacuation of people back to Australia and, in one case, an Australian hospital refused to discharge a baby who had been flown to Australia for emergency medical treatment and was facing return to Nauru. Leaders of Australian states and territories from both sides of politics called for refugees to be permitted to remain in Australia. These developments generated widespread media coverage and international attention. 

Today, offshore processing attracts far less public attention in Australia – not because it ‘worked’ or was accepted over time, but rather because it has all but been abandoned. Approximately 4,180 asylum seekers were transferred offshore over a two-year period from 2012 to 2014, after which Australia stopped all transfers and pivoted to a new policy of maritime interception instead. The arrangement with PNG was formally terminated in 2021, although PNG periodically threatens to send back to Australia the few refugees who settled there unless Australia continues to fund all their costs. The last few refugees from the original cohort were finally removed from Nauru in 2023, almost a decade after they first arrived, but Australia continued to pay more than A$486m (£255m) to keep the empty detention centre open. A small number of new arrivals were sent to Nauru in late 2023 and early 2024, but it is unclear whether they will undergo refugee status determination there or be summarily returned to their countries of origin. Meanwhile, despite the Australian government’s consistent messaging for more than a decade that no person transferred offshore would ever be permitted to return and settle in Australia, the vast majority of those who arrived during the brief active phase of the policy (2012–2014) and have not already been resettled or repatriated have been evacuated back to Australia where they remain today – living in the Australian community, waiting indefinitely for a durable solution to bring their ordeal to a close.

Conclusion

The purpose of this blog was to contribute to the discussion about whether Australia’s offshore processing policies are comparable to the UK’s proposed Rwanda policy. We have argued that, in broad terms, Australia’s offshoring policies since 2012 are more comparable to the UK’s proposed Rwanda policy than is often understood. But contrary to some views expressed in Parliament, offshore processing does not work in practice as a ‘deterrent’, and carries more substantial legal, financial and other risks than the UK government may appreciate. Moreover, the view that the Australian policy was tough but necessary at first, and that it was gradually accepted over time, is a misrepresentation of the reality. 

The Australian experience offers a direct comparator from which the UK can draw important lessons. Sweeping statements about the Australian policy which rely on misinformation about its risks and effectiveness, and casual references to other countries like Denmark which may – but are yet to – embark on similar policies, are not conducive to sound public policy. Given the extraordinary human toll of Australia’s offshore processing policies, they should not be replicated without a full and accurate consideration of their risks and consequences. This brings back to the fore perennial questions regarding the Executive’s due diligence in the conduct of foreign affairs and the role of Parliament in making and approving international treaties, as recently highlighted by the House of Commons Public Administration and Constitutional Affairs Committee and the Home Affairs Committee.

The UK’s engagement with Rwanda has already been costly, but there is still time to ensure that, in its effort to ‘stop the boats’, the government does not embark on a policy with even greater human, legal and financial costs. With the Safety of Rwanda Bill still under scrutiny, now is the time for Parliament to recommit itself to the rule of law, interrogate rigorously the model it proposes to follow, invest more time into exploring good practices which have worked elsewhere, and make informed decisions about both the safety of Rwanda for refugees and UK asylum policy more broadly. 

Many thanks to Michael Gordon, Arabella Lang and Paul Scott. This blog draws from findings published by Madeline Gleeson and Natasha Yacoub in ‘Cruel, costly and ineffective: The failure of offshore processing in Australia‘, a 2021 policy brief from the Kaldor Centre for International Refugee Law at UNSW Sydney.

Madeline Gleeson, Senior Research Fellow at the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney.

Theodore Konstadinides, Professor of Law, Essex Law School, University of Essex.

(Suggested citation: M. Gleeson and T. Konstadinides, ‘The UK’s Rwanda policy and Lessons from Australia’, U.K. Const. L. Blog (14th March 2024) (available at https://ukconstitutionallaw.org/))