European Court of Human Rights, case of N.S.K. v. the United Kingdom, 13 June 2022, App. no. 28774/22 – Interim measure

A. Facts and ruling

1. Relevant facts of the case

N.S.K. (hereinafter, the applicant) is an Iraqi national who applied for asylum on 17 May 2022, upon arrival in the United Kingdom and who, on 14 June 2022, was threatened with imminent deportation to Rwanda. Born in 1968, the applicant left Iraq in April 2022 and travelled to Turkey before crossing the English Channel by boat. Upon his arrival in the UK on 17 May 2022, he alleged that he was in danger in Iraq and asked for international protection.

On 24 May 2022, the applicant received a “Notice of intent” indicating that the UK authorities considered that his application for asylum in the United Kingdom was inadmissible and that he was to be relocated to Rwanda. On 27 May 2022, a doctor at the immigration detention center released a report indicating that the applicant may have been a victim of torture. Despite the filing of this medical document as evidence in support of his asylum claim, N.S.K. was officially notified on 6 June 2022 that his asylum application was inadmissible. The notification ordered the removal to Rwanda for 14 June 2022 and the removal was scheduled at 10:30 p.m. (British Summer Time - BST).

On the domestic procedural level in the United Kingdom, the UK High Court rejected the applicant’s request for interim relief asking to prevent both his relocation and the relocation of all asylum seekers to Rwanda under the asylum partnership agreement. The High Court assumed that Rwanda would comply with the memorandum of understanding (MoU), even if it were not legally binding. The High Court considered that the interim period was likely to be short and concluded that if the claimant’s judicial review challenge was successful, he could be returned to the UK.

However, the High Court accepted that the question of whether the decision to treat Rwanda as a safe third country was irrational or based on an insufficient investigation gives rise to "serious trialable issues" which should be considered by the court when considering the merits of the claimant's challenge. An appeal is heard and then dismissed on 13 June 2022.

Thus, the applicant decided to urgently seize the European Court of Human Rights (hereafter ECtHR). Facing removal to Rwanda on 14 June 2022, the applicant invoked the claiming of asylum. The European Court has decided to grant a provisional measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider (minimum) asylum guarantees from Rwanda. The ECtHR ruled that the deportation of NSK should be postponed until a British court has considered the legality of the agreement. This is in particular to ensure that migrants can have access to fair procedures in Rwanda and that Rwanda can be considered a safe country.

2. The UK-Rwanda partnership agreement on migration

The memorandum of understanding (MoU) between the British and Rwandan governments of 14 April 2022 aims at transferring to Rwanda any person who entered the United Kingdom irregularly since 1 January 2022. Indeed, the UK and Rwanda entered into a Migration and Economic Development Partnership that includes a five-year “Asylum Partnership Agreement” as detailed in the MoU signed by the Minister of Interior and the Rwandan Minister of Foreign Affairs.

As a matter of fact, the Migration and Economic Development Partnership with Rwanda means that people whose asylum claim is deemed inadmissible and who have made an illegal journey to the UK can be relocated to Rwanda where their claim will be processed in accordance with Rwanda asylum system. Those whose applications were successful would remain in Rwanda, while those who failed would leave voluntarily, obtain another type of residence status in Rwanda, or be sent back to their country of origin or another country where they would be legally admitted (MoU, pt 10.1-6). Based on the MoU, the applicant and other asylum seekers could be relocated to Rwanda as long as their applications are not examined by the United Kingdom (MoU, pt2.1).

In other words, the asylum agreement allows the UK to send people to Rwanda who would otherwise seek asylum in the UK. Rwanda will consider them for permission to stay or return them to their country of origin. They will not be eligible to return to the UK. In return, the UK is providing Rwanda with £120 million in funding. It will also cover the processing and integration costs of each relocated person. Ministers expect these costs to be similar to the costs of processing asylum claims in the UK. The UK has also pledged to resettle an unknown number of vulnerable refugees currently in Rwanda.

The first evacuation flight to Rwanda was scheduled to depart on 14 June 2022. In the days leading up to 14 June 2022, the number of people due to fly was reduced to single digits. Many people have had their removal instructions either overturned by the Home Office or after their individual cases have been considered by the courts. However, various organizations for the defense of refugees, including Care4Calais and some individuals have sought injunctions to prevent deportations to Rwanda before the outcome of their challenges. The British courts rejected the injunction requests at first instance and on appeal. After being initially delayed due to several legal challenges, this first flight was finally cancelled at the last moment following a provisional emergency measure by the European Court of Human Rights (ECtHR) under its "Rule 39" procedures against the removal of N.S.K.

The UK-Rwanda partnership agreement on migration is part of a broader package of asylum reforms. The UK Government wants to discourage people who make irregular journeys to the UK and who do not claim asylum beforehand in other safe countries. It also cites objectives to improve the fairness and efficiency of the UK asylum system and prevent loss of life on journeys to the UK. In accordance with the asylum partnership agreement, only a subset of inadmissible cases will be relocated to Rwanda or other safe third countries.

3. The ECtHR’s urgent interim measure

On 13 June 2022, the ECtHR received a request for an indication of an emergency interim measure to the UK government, under Rule 39 of the Rules of Court. By decision of 14 June 2022, the ECtHR issued a decision indicating an urgent interim measure in the case of N.K v. United Kingdom (app. n° 28774/22). Taking into account the concerns of the United Nations High Commissioner for Refugees (UNHCR) that asylum seekers transferred from the United Kingdom to Rwanda would not have access to fair and efficient procedures for determining their refugee status – the ECtHR ruled that the transfers could not take place before the British Courts had examined the legality of the agreement concluded between the two countries.

B. Discussion

The main question in the ECtHR’s decision is the consideration for the legal value of the UK-Rwanda partnership (a government agreement) in the light of the international legal framework. Furthermore, the Court also noted the relevance of the minimum guarantees of human rights, applicable in particular to asylum seekers.

1. The UK-Rwanda agreement in the light of the international legal framework

- UK-Rwanda agreement: nature and legal value.

Article 38(1) of the Statute of the International Court of Justice (ICJ) lists four sources of international law: treaties and conventions, custom, general principles of law, and judicial decisions and teachings. At first glance, it may appear that the UK-Rwanda agreement is a Treaty within the meaning of Article 2, a) of the Vienna Convention on the Law of Treaties. However, treaty-making involves a process that mainly goes from negotiation to ratification, passing through adoption, authentication and signature.

Thus, the creation of an international treaty includes, among other procedures, ratification. “Ratification” means the international act by which a State indicates its consent to be bound by a treaty, if it is the way in which the parties to the treaty have decided to express their consent (Vienna convention on the Law of Treaties, art. 2 par. 1 para b), Art. 14, para.1 and art. 16). Therefore, the Parliament or the legislative authority authorizes the executive to proceed to ratification.

The constitutional position on whether the government should table non-binding MoUs in Parliament for consideration is less certain than treaty requirements as it sets out practices that both states (UK and Rwanda) may wish to follow.[1] The government does not consider there is a constitutional convention requiring it to inform the House of Commons of all unconventional arrangements. It is a type of non-binding arrangement that is not a treaty. It does not create any legal obligation between the parties and therefore falls outside the parliamentary oversight requirements of the Constitutional Reform and Governance Act 2010.

As a matter of fact, the challenge of the legality of the UK-Rwanda partnership agreement can then be highlighted. The UK-Rwanda Memorandum of Understanding is publicly available, but the government has not submitted it to parliament for a vote or formal review.

In all respects, we should not lose sight of the fact that MoUs are soft law agreements, including the non-binding UK-Rwanda agreement.[2]

- UK-Rwanda agreement versus asylum and immigration legal framework

First, it is important to note that the United Kingdom's withdrawal from the European Union (Brexit) has affected its asylum and migration systems, especially since 1 January 2021 (the end of the transition period), the Dublin III Regulation and other EU legal instruments no longer apply to the United Kingdom.

Notwithstanding the Brexit, the UK is still subject to international law. As regards human rights law in particular, the UK as domestically incorporated the provisions of the ECHR through the Human Rights Act. Furthermore, the UK's obligation to offer protection to refugees as member of the 1951 Geneva Convention relating to the Status of Refugees remains unaffected by the Brexit.

Even though it has received widespread criticism, the 1951 Refugee Convention remains the most important binding instrument for refugee protection. The principle of non-refoulement it contains plays a crucial role[3]. However, the British and Rwandan governments are promoting the arrangement to UN agencies and other countries as an innovative solution for a “broken” international refugee protection regime.

Besides, as stated by HCR in its Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers (Hereinafter HCR Guidance-transfer) paragraph 1:

“Asylum-seekers and refugees should ordinarily be processed in the territory of the State where they arrive, or which otherwise has jurisdiction over them. This is also in line with general State practice. The primary responsibility to provide protection rests with the State where asylum is sought.”

Hence, a State has obligation to protect refugees when an asylum seeker enters its territory.

Still, there are a growing number of initiatives in various regions involving the transfer of asylum-seekers from one country to another under special State arrangements or agreements. In order for such an agreement to be appropriate, some substantial requirements must be fulfilled. As part of these requirements, the HCR Guidance-transfer paragraph 3(v) mentions that:

“An arrangement between States for the transfer of asylum-seekers is best governed by a legally binding instrument, challengeable and enforceable in a court of law by the affected asylum-seekers. The arrangement would need to clearly stipulate the rights and obligations of each State and the rights and duties of asylum-seekers”.

In this case, as mentioned above, the UK-Rwanda agreement is a soft law agreement that is therefore non-binding. Thus, this requirement is not satisfied. “Where these guarantees cannot be agreed to or met, then transfer would not be appropriate” (UNHCR, Guidance Note paragraph 3(vii)).

In accordance with Article 32 Geneva Convention relating to the Status of Refugees :

‘’The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order and in pursuance of a decision reached in accordance with the process of law. Each refugee shall be entitled, in accordance with the established law and procedure of the country, to submit evidence to clear himself and to be represented before the competent authority. The Contracting States shall allow such refugees a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.’’

The UK government "seeks to shift its responsibilities for asylum entirely to another country", contrary to the 1951 Geneva Convention on the non-refoulement of refugees. In any agreement, the UK would be responsible for ensuring compliance with the non-refoulement principle. The UK High Court has been scrutinizing the legality of Plan Rwanda in detail since July 2022. The British government seems determined to circumvent European justice to implement its outsourcing policy.

2. The primacy of (minimum) asylum guarantees

The ECtHR decided that:

“Asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status as well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to “serious triable issues”. In light of the resulting risk of treatment contrary to the applicant’s Convention rights as well as the fact that Rwanda is outside the Convention legal space (and is therefore not bound by the European Convention on Human Rights) and the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts, the Court has decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues”.[4]

The Court highlights that minimum guarantees implicate fair and efficient procedures for the determination of refugee status. Moreover, the fact that Rwanda is outside the Convention legal space leads to the absence of any legally enforceable mechanisms for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts. Moreover, minimum guarantees take into account the question of whether Rwanda is a safe third country or not, that “serious triable issues” that should be dealt with by the court when assessing the merits of the applicant's challenge. 

In fact, UN member countries have issued strong criticisms and numerous recommendations regarding Rwanda's human rights records during the country’s Universal Periodic Review (UPR) at the Human Rights Council in Geneva on 25 January 2021. That being so, the Central Africa director at Human Rights Watch, Lewis Mudge, argued “the strong criticism of Rwanda from countries across the world shows the international community’s concern about the human rights crisis in Rwanda.”

The UK-Rwanda deal is controversial and has been criticized by a wide range of national and international stakeholders. Asylum advocates have practical concerns about the arrangement and suitability of Rwanda as a host country. They also oppose the use of 'outsourcing' policies in principle and see the agreement as undermining the post-war international protection regime.[5] The UNCHR other refugee law experts have questioned whether the deal is compatible with the UK's obligations under refugee and human rights law.

Conclusion

The UK-Rwanda agreement is neither binding under international law nor does create nor confer enforceable personal rights. This agreement involves defiance of the duly established international refugee protection system. In addition to not enhancing international cooperation or improving refugees' protection space in participating countries, this agreement does not contribute to burden and responsibility sharing. Besides deserting its international obligations, the United Kingdom is also exposing itself to complacency and arbitrariness when handling asylum claims.

Through the prism of minimum asylum guarantees, it is clear that the removal of asylum seekers to Rwanda undermines their right to seek international protection.

While not breaking new ground, the UK-Rwanda deal has already sparked legal and political battles. The results will influence migration policies in Europe and beyond. However, every step of the asylum process must be conducted in a manner that respects and promotes human rights that are paramount.

C. Suggested reading

To read the case (interim measure):

ECtHR, 13 June 2022, case of N.S.K. v. the United Kingdom, app. n^o 28774/22 (interim measure).

Legislation:

Geneva Convention relating to the Status of Refugees, 28 July 1951.

Vienna Convention on the Law of Treaties, 1969

Statute of the International Court of Justice.

Case law

ECtHR, 20 January 2009, F.H. v. Sweden, app. n^o  32621/06.

ECtHR, 1 September 2010, Y.P. and L.P. v. France, app. n^o 32476/06.

ECtHR, 11 July 2002, Amrollahi v. Denmark, app. n^o 56811/00.

ECtHR, 3 November 2009, Abdollahi v. Turkey, app. n° 23980/08.

ECtHR, 18 November 2014, M.A. v. Switzerland, app. n^o 52589/13.

ECtHR, 27 May 2008, N. v. the United Kingdom, app. n^o 26565/05.

Doctrine:

ANCELIN J., Le principe de non-refoulement et l’Union européenne à l’épreuve de la crise syrienne. Études internationales, 49(2), 2018. P.355–389.

BEAULAC, S. Précis de droit international public, 2e édition, Montréal, LexisNexis Canada, 2015.

CARLIER J.-Y. et SAROLEA S., Droit des étrangers, Bruxelles, Larcier, 2016.

CARLIER J.-Y., Droit des réfugiés, Bruxelles, Story-Scentia,1989.

HACHEZ I., Le soft law: qui trop embrasse mal étreint?.

LINOS K., CHACHKO E., Refugee Responsibility Sharing or Responsibility Dumping?, California Law Review.

LUNGUNGU K.M, POIRIER J., Cooperation Agreements between Federal Partners: Between 'Sources of Law' and 'Soft law, .

MAHESHE T., « Principe de non-refoulement et demandeur d’asile en situation irrégulière », Cahiers de l’EDEM, avril 2019.

MINK J., «EU Asylum Law and Human Rights Protection: Revisiting the Principle of Non-Refoulement and the Prohibition of Torture and Other Forms of Ill-Treatment», European Journal of Migration and Law, 14(2), 2012, p. 130-131.

PARTIPILO F.R., The UK – Rwanda Migration Partnership under the scrutiny of the Strasbourg Court: Externalising asylum while bypassing refugee law?, ADiM Blog, Case law Commentary, August 2022.

RAIMONDO F., «Removal of Sikh families to Afghanistan: Religious Minority and Ill-Treatment Risk Assessment», Cahiers de l’EDEM, April 2020.

Notes UNHCR

UNHCR, Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers, Geneva, May 2013.

Other materials

UK-Rwanda agreement, 2022.

To cite this contribution: I.B. Muhambya, “UK-Rwanda agreement versus legal framework on the protection of refugees: primacy of minimum guarantees of human rights”, Cahiers de l’EDEM, September 2022.