Why did the UK Parliament not close all legal routes for appeal when passing the Safety of Rwanda act?

Question

The Safety of Rwanda is quite broad but as per the opinion of legal experts it still leaves some routes for appeal:

Section 4(4) goes on to provide for very limited circumstances in which a court can grant an interim remedy to prevent or delay someone’s removal to Rwanda. Such an interim remedy can be granted “only if the court or tribunal is satisfied that the person would, before the review or appeal is determined, face a real, imminent and foreseeable risk of serious and irreversible harm” if removed to Rwanda. (Incidentally this is similar to the test for interim measures applied by the ECtHR.)

These grounds of challenge are obviously designed to be as narrow as possible. However there is no doubt that such challenges will be brought, possibly in large numbers. Whether any claim succeeds will obviously depend on the strength of the evidence about a person’s individual circumstances and the risk they might face if removed.

The other possible route of challenge is to the ECtHR in Strasbourg. Again the argument would be that the Act, or a particular decision under it, breaches a claimant’s ECHR rights. A claimant would be expected to bring such a claim only once any claims in the domestic courts have failed. The ECtHR will not be bound by the UK legislation or by the presumption that Rwanda is “safe”. It will conduct its own assessment on the basis of the evidence before it.

When passing the Act, why didn't Parliament close all routes for appeal and make it completely impossible for any court to intervene in any manner whatsoever into the deportations? There has been a lot of debate in Parliament over this Act so I expect the answer to exist in one of the public debate transcripts.

I’d expect them to pass a law saying something like “no domestic or international court may delay or stop a deportation to Rwanda” but the actual version is quite a bit weaker.

Answer 1

The Government's position is that:

The bill will allow Parliament to confirm that it considers it has sufficient material before it to judge that Rwanda is in general safe and that this finding should not be disturbed by the courts.

It is not, however, possible for Parliament reasonably to conclude that Rwanda will always be safe for every potential individual liable to removal at any point in the future, irrespective of their specific personal circumstances. For that reason, the bill does allow for an exceptionally narrow route to individual challenge to ensure that the courts will interpret the relevant provisions in accordance with the will of Parliament. Not to do so would mean ministers accepting that those unfit to fly, for example those in the late stages of pregnancy, or sufferers of very rare medical conditions that could not be cared for in Rwanda, could be removed with no right to judicial scrutiny.

In any case, completely blocking any court challenges would be a breach of international law and alien to the UK’s constitutional tradition of liberty and justice, where even in wartime the UK has maintained access to the courts in order that individuals can uphold their rights and freedoms. Furthermore, such a wider ouster clause would have to confront unorthodox obiter dictum made in cases such as Jackson v Attorney-General [2005] UKHL 56 and Privacy International [2019] UKSC 22.

The bill limits unnecessary challenges whilst maintaining the principle of access to the courts where an individual may be at a real risk of serious and irreversible harm. Taken as a whole, the limited availability of domestic remedies maintains the constitutional balance between Parliament being able to legislate as it sees necessary, and the powers of our Courts to hold the government to account.

I'm not aware of any debate or amendment seeking to "close all routes for appeal and make it completely impossible for any court to intervene in any manner whatsoever into the deportations".

Answer 2

Thank you for your report following the Committee’s scrutiny of the provisions of the Safety of Rwanda (Asylum and Immigration Bill). The Government has carefully considered the Committee’s findings and our response is set out below. Asylum and human rights The Committee’s findings

The principle that individuals cannot be removed from a country to face a real risk of persecution, torture, inhuman or degrading treatment or death is a core principle of international law, to which the UK has committed itself on numerous occasions over the past 70 years. The Committee welcomes the Government’s continued recognition of the binding nature of its international obligations and its commitment to respecting them. It is nevertheless disappointing to see, for the second time in the past year, the introduction of a Bill that the Government cannot say is more likely than not to comply with its international obligations under the ECHR. (Paragraph 36)

We consider that our concerns about the compatibility of this Bill with rights and international law relate to the Bill as a whole. We have not provided amendments designed to render the Bill compatible because any such amendment would inevitably be inconsistent with the Bill’s central purpose. (Paragraph 121) Government Response

The use of a section 19(1)(b) statement does not mean that the Bill is incompatible with the European Convention on Human Rights. There is nothing improper or unprecedented about pursuing bills with a section 19(1)(b) statement. It does not mean the Bill is unlawful or that the Government will necessarily lose any legal challenges on human rights grounds. Parliament clearly intended section 19(1)(b) to be used as it is included in the Human Rights Act 1998. All such a statement means is that the Home Secretary is not able to state now that the Bill’s provisions are more likely than not compatible with Convention rights. A range of bills have also had section 19(1)(b) statements in the past, including the 2003 Communications Bill under the last Labour Government.

It is an important measure to safeguard Parliamentary sovereignty. The use in this case recognises the novel and ambitious approach taken by this Bill, and the fact there is room for argument both ways. Legislation and policy nearly always engage human rights and there are very often arguments on both sides of the equation on compatibility.

The approach adopted is new and ambitious, but that does not mean that the Bill is not compatible with the Convention rights. Our focus is introducing legislation that will deter people from entering the country dangerously and illegally. Parliament has the opportunity to thoroughly scrutinise the Bill and once approved the measures in the Bill will have been expressly endorsed by Parliament.

https://publications.parliament.uk/pa/jt5804/jtselect/jtrights/647/report.html#heading-1

The government decided to meet its international obligations as to respect the human rights and dignity of the people of Rwanda. Not doing so would hurt international relation with countries in the Global South, and also hurt the image of the country. Also, according to the government, it passed this legislation to deter people to enter the country dangerously and illegally. Not giving exemptions would make it difficult for the general public to believe that they care for the safety of the people entering the country illegally.