A wise court – Rwanda, Safe Third Countries and a Channel breakthrough in 2023

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On 29 June 2023, the UK Court of Appeal issued a historic decision with implications for the future of the global refugee system on the future of asylum and of the safe third countries principle. It addressed two questions: Is the basic principle of the 2022 UK-Rwanda agreement, to transfer asylum-seekers to Rwanda and thereby reduce irregular migration, in accordance with international law? And: Is Rwanda a safe third country today? With its answers – “Yes” to the first question, “Not Yet” to the second – the court shows a way for the UK and other European governments to combine migration control with respect for the Refugee Convention and the European Convention on Human Rights.

In April 2022, the UK-Rwandan “Migration and Economic Development Partnership” was presented in the capital Kigali. Rwandan politicians welcomed it, agreeing to receive asylum seekers from the UK. They committed to provide “adequate” reception conditions; guarantee asylum seekers freedom of movement “at all times”; ensuring their health, security, and access to an asylum procedure. The UK committed to pay all associated costs and support Rwanda’s development.

On 27 April 2022, Filippo Grandi, the High Commissioner for Refugees, stated his opposition to the UK’s “intention to externalize its obligations to protect refugees and asylum seekers to other countries … such efforts to shift responsibility run counter to the letter and spirit of the Refugee Convention, to which the UK is a party.” In its public communication UNHCR presents “externalisation” as unlawful. But is this true? The answer, given by five judges in two successive recent UK Court decisions, one by the High Court in December 2022 and the other by the High Court of Appeal this week, is clear: No.

Transfers to a safe third country are not per se a violation of international law or of human rights. In December 2022, two UK High Court judges found that transfers to Rwanda under the UK-Rwanda Memorandum were lawful and did not violate the Refugee Convention, the European Convention on Human Rights, or UK law. In June 2023, three UK Appeals Court judges agreed on this principle: “if the asylum-seeker will not face persecution or refoulement in the country to which they are returned they will have received the protection which the Convention is intended to afford them.”

At the same time, the UK Appeals Court found that today Rwanda was not yet a safe third country: on balance, two of three judges concluded Rwanda’s nascent asylum system was not robust enough: “Both history and the current situation demonstrate that those mechanisms have not yet been delivered. They may in the future be delivered but they are not, on the evidence, there now.” It is a wise judgement that should be welcomed by anyone serious about the Safe Third Country principle being a tool to raise, not lower, standards of protection in the world.

Where does this leave the UK? There is an alternative strategy to stop irregular Channel crossings humanely and lawfully, without transfers to Rwanda. It is to return everyone crossing the Channel, after an agreed cut-off date, to countries which are, without any doubt, safe: to France, Germany, the Benelux countries. And for the UK to offer real solidarity in receiving refugees from these countries, given that it has a lot fewer asylum applications, and grants a lot less protection, than either France or Germany.

46,000 crossed the Channel last year. We propose that France, Germany, and others now offer that they, not Rwanda, will take everyone back who crosses the Channel as soon as the UK has processed them. This will quickly stop all crossings. In return, the UK should agree to resettle 40,000 refugees or asylum seekers a year, over the next three years, who are now in these European partner countries. This will stop both irregular migration and deaths, in line with all European human right conventions.

The judgement by the UK Court of Appeals also has a message to Rwanda and other African states. It is possible to become a safe third country and help reduce migrant deaths. Rwanda can still be an African pioneer, as it has been in its cooperation with UNHCR to help asylum seekers stranded in Libya. For this it also deserves support. But being truly safe will take more than political declarations. It takes access to a functioning asylum system. Then it will also be possible to persuade European judges.

Just not yet.