On 17 January, the Cabinet Secretary to the Home Office sent a letter outlining the future direction of the Safety of Rwanda (Asylum and Immigration) Bill (‘the Bill’). In it, he confirmed that the proposed Guidance (‘the Guidance’) to be issued to the civil service would compel civil servants to follow ministerial decisions, irrespective of whether those decisions are in breach of the UK’s international law obligations. The Bill, which was debated in the House of Lords on 29 January, confirms the Guidance issued by Darren Tierney, Director General, Propriety & Constitution Group of the Cabinet Office, that
As a matter of UK law, the decision as to whether to comply with a Rule 39 indication is a decision for a Minister of the Crown. Parliament has legislated to grant Ministers this discretion. The implications of such a decision in respect of the UK’s international obligations are a matter for Ministers. In the event that the Minister, having received policy, operational and legal advice on the specific facts of that case, decides not to comply with a Rule 39 indication, it is the responsibility of civil servants – operating under the Civil Service Code – to implement that decision. This applies to all civil servants.
The proposed Guidance raises complex legal issues, almost certainly putting the UK in breach of its international human rights obligations and potentially undermining fundamental constitutional principles such as the rule of law and the separation of powers doctrine. In its design, the Bill empowers ministers to disregard Rule 39 injunction measures, which are binding under the jurisdiction of the European Court of Human Rights (‘ECtHR’). These measures are only made in exceptional circumstances, to halt an expulsion or extradition where that expulsion will put the applicant at a real risk of irreparable harm. The ECtHR has only issued a comparatively small number of these measures to the UK, most recently, to stop the deportation of a flight of asylum seekers under the Government’s Rwanda asylum plan, which, under the Government’s plan would see asylum seekers be sent to Rwanda to have their claims processed there. The decision by the ECtHR was vindicated by the Supreme Court decision, AAA (Syria) v The Secretary of State for the Home Department [2023] EWCA Civ 745 (‘AAA (Syria)’) where the Court held the Government’s Rwanda policy was unlawful, finding that there were ‘substantial grounds for believing there is a real risk of refoulement’ were the asylum seekers to be transferred to Rwanda.
The Guidance appears to be a concerning attempt by the Government to circumvent its obligations under international law. Contextualised in Britain’s wider ‘hostile environment’ migration policy, the Bill and Guidance further entrenches a legislative framework that ‘exclude asylum seekers from access to basic human rights’.
The decision as to whether or not to abide by binding judicial decisions and international law cannot be subject to ministerial discretion. The UK has voluntarily entered into its human rights obligations under international law, and notwithstanding Brexit, remains committed to abiding both by the European Convention on Human Rights, (‘ECHR’) and the international protection framework. It has continued to profess its commitment to upholding its obligations under the 1951 UN Refugee Convention (‘Refugee Convention’) and its 1967 Optional Protocol, championing its welcome of asylum seekers from particular countries, such as Ukraine, Hong Kong and Afghanistan. However, this Guidance draws into question the substance behind this populist rhetoric.
In AAA(Syria), the Court considered whether expulsion to a third country would contravene the Refugee Convention. The Court held that there is no prohibition under the Refugee Convention on receiving States to entertain an asylum claim. However, if sending an asylum claimant to a country where they would be at risk, then doing so will contravene the prohibition of non-refoulement, guaranteed in Article 33. The Court cited the Asylum and Immigration Appeals Act 1993, noting that ‘Nothing in the immigration rules … shall lay down any practice which would be contrary to the Convention.’ It further cited with approval the obiter in R (European Roma Rights Centre) v Immigration Officer at Prague Airport, R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 2 AC 1, reasoning that
It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention. After all, it would be bizarre to provide that formal immigration rules must be consistent with the Convention but that informally adopted practices need not be consistent with the Convention.
While Parliament can legislate against international law via the Bill, the proper way of doing so would be to formally withdraw from its international legal obligations. Further, policy that potentially undermines the object and purpose of the Refugee Convention is likely to be in breach of the common law.
In fact, the exercise of ministerial discretion overriding a Rule 39 injunction, will likely only be made in cases where the ECtHR has assessed that the expulsion will put the claimant at risk of facing harm in the receiving country. Rule 39 injunctions are reserved for exceptional cases and remain in effect only on an interim basis while the applicant’s case undergoes further examination. For example, in 2021, in the face of an alleged near-fatal poisoning of Aleksey Navalny by the Russian Government, a Rule 39 injunction was granted because the Russian Government had not provided adequate assurance that Navalny’s life and health would be protected while his incarceration remained ongoing. Since 2017, only around 2% of all applications against the UK have been granted, with only one being granted in 2023. The evidential threshold to establish that expulsion will expose a claimant to an imminent risk of irreparable harm is relatively high. It is difficult to see how a minster could reject the significant evidence presented to the ECtHR, and instead substitute that ruling with a policy decision that an asylum claimant faced no risk of harm upon expulsion to a third country.
Even adopting the position that international law is not domestically binding, perhaps more alarming is the potential for ministerial discretion to be exercised in a way that erodes the separation of powers. By vesting ministers with discretion to override human rights obligations that are otherwise enforceable in domestic law, the Guidance potentially shifts legislative and judicial power into the realm of administrative decision-making. Further, the Bill dispenses the requirements of compliance with both the Human Rights Act 1998, and by extension, the ECHR. Effectively, this undermines the principle of the rule of law whereby the law must apply equally to all. The Bill erodes rights protections to certain asylum claimants, who would otherwise be guaranteed the protections granted in the Equality Act 2010, ECHR and the Refugee Convention, and are due to all other members of society.
These concerns are compounded by a second issue raised in the AAA(Syria) case, that of maintaining procedural fairness in administrative decision making. As affirmed in AAA(Syria), ‘procedural fairness requires that an asylum claimant should have the opportunity to make representations on matters…. within the Immigration Rules’. In a practical sense, where ministers use their discretion to override a Rule 39 injunction, the opportunity by asylum claimants to make representations or to launch an appeal may be extremely limited. Recalling the Article 39 injunction that halted the plane from taking off at Heathrow, if a minister was to use their discretion to override an Article 39 injunction, the asylum claimant would be left with little recourse. The right to legal advice would be denied, and there would be no opportunity of judicial scrutiny of a ministerial decision. The Bill divests domestic courts of the ability to take account of rulings by Strasbourg, and the application of the Guidance erodes claimants’ rights to procedural fairness.
This Guidance is part of a broader asylum framework that has come increasingly under heavy criticism by the UN, NGOs and in the media. UNHCR has described the Illegal Migration Act 2023 as being in ‘clear breach’ of the UK’s obligations under international law, effectively causing a ‘de facto “asylum ban”’. The Bill, and the application of the Guidance, risks the UK undermining the object and purpose of its obligations under the Refugee Convention. It is fundamental to the Refugee Convention that “no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.” However, by vesting ministerial discretion so widely as to empower decision makers to disregard Britain’s international legal obligations, the Guidance potentially renders these obligations meaningless. As described by Lord German in its second reading, “the Bill represents an overreach of Parliament, and it is critical that we retain the balance in our democracy achieved by the separation of powers.”
In upholding its human rights obligations in both international and domestic law, the Government cannot be seen to be cherry-picking those rights and protections which suit its political agenda. This goes to the heart of upholding universal principles of democracy and democratic good governance. There are expressive implications which jeopardise the UK’s reputation as comparatively robust in its protection of human rights and democratic freedoms. Further, there is an argument that by subverting its human rights obligations in this way, the UK weakens the international protection framework. Recent examples of the rapid erosion of democratic institutions globally, in places like Hong Kong, Hungary and Poland, demonstrate the fragility of the global human rights regime. This Bill further chips away at the fundamental tenements of global good governance, in a way that ultimately threaten Britain’s constitutional principles that shape its institutions through values of the rule of law and democracy.
Jane Richards.
Jane Richards is a lecturer in international human rights and criminal law at the University of York. She is a fellow at the Centre for Criminology at the University of Hong Kong.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.