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Judges cite failed Israel deal in ruling UK-Rwanda deportation policy unlawful

British appeal court told of serious rights violation of asylum seekers under Israeli agreement, which Britain did not probe when formulating own deal with Kigali
Protesters in the Israeli city of Herzliya on 7 February 2018, marching against the Israeli government's policy to forcibly deport asylum seekers to Rwanda and Uganda (AFP)
Protesters in the Israeli city of Herzliya on 7 February 2018, marching against the Israeli government's policy to forcibly deport asylum seekers to Rwanda and Uganda (AFP)
By Rayhan Uddin in London

British judges cited the failure of a deportation agreement between Israel and Rwanda as part of its decision on Thursday to rule the UK government's plans to deport asylum seekers to the African country as unlawful. 

In December, the high court in London ruled that the plan to send asylum seekers who arrive in the UK on small boats to Rwanda was lawful. But an appeal was lodged by asylum seekers and a rights group, supported by groups including the UN's refugee agency, UNHCR. 

By a majority, the court accepted the appeal on the question of whether Rwanda was a safe third country. Three senior judges, Lord Burnett, Sir Geoffrey Vos and Lord Justice Underhill, made the ruling on Thursday. 

Vos and Underhill found that deficiencies in Rwanda's asylum system meant that there were substantial grounds to believe that people sent to Rwanda would be returned to their home countries, where they faced persecution and inhumane treatment. Burnett came to the opposite conclusion.

In the 161-page ruling, several references were made to the failings of a similar scheme agreed by Israel and Rwanda in 2013.

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In a deal that was not made public at the time, Israel reportedly offered asylum seekers a choice between being detained in Israel or being given $3,500 and face removal to Rwanda, where they could theoretically attempt to seek asylum.

Of around 4,000 people deported by Israel to Rwanda, almost all of them are believed to have left the country immediately, many of them seeking to go to Europe with the help of people smugglers.

UNHCR, whose evidence was cited in the appeal case, carried out interviews with refugees who had been sent from Israel to Rwanda between 2015 and 2017, who said they were "routinely moved clandestinely to Uganda even if they were willing to stay in Rwanda".

Interviews with 80 Eritrean and Sudanese asylum seekers who had been relocated under the Israel agreement revealed that many felt they had no choice but to travel "hundreds of thousands of kilometres through conflict zones" and suffer "abuse, torture and extortion" in attempts to reach Europe. 

This was due to not being given the opportunity to lodge their asylum claims in Rwanda, fears of arrest, threats of deportation and random overnight visits by unknown agents.

UK did not probe Israel-Rwanda deal

UNHCR identified 50 cases of refoulement - the forcible return of asylum seekers to countries where they may be persecuted - under the Israel-Rwanda agreement. 

Lawrence Bottinick, the UNHCR's senior legal officer in the UK, used that basis to argue that the UK-Rwanda agreement would create a risk of increased people smuggling and a rise in asylum seekers being exposed to dangerous journeys. 

Underhill said that there was "no dispute" that those who accepted relocation under the Israel agreement "suffered serious breaches of their rights under the Refugee Convention". 

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The UK Home Secretary told the court that the evidence relating to the Israel-Rwanda agreement was "irrelevant". 

"I do not agree," said Vos in response, an assessment his colleague concurred with.

Underhill said that while there were clear differences between the British and the Israeli agreements, he did not "accept that these episodes are of no relevance". 

"They are evidence of a culture of, at best, insufficient appreciation by DGIE [Directorate General of Immigration and Emigration] officials of Rwanda's obligations under the Refugee Convention, and at worst a deliberate disregard for those obligations." 

Vos said that the UNHCR evidence showed that breaches took place within the Israel agreement, such as refoulement, despite Rwandan government assurances to the contrary.

Both judges alluded to the fact that the UK government did not investigate the failings of the Israel-Rwanda pact.

"Although the secretary of state was aware of the Israel-Rwanda agreement and of the problems about it, she did not as part of the process leading to the [UK-Rwanda partnership] seek to investigate why it had failed," Underhill noted. 

"She did not attempt to obtain information about the terms of the agreement or what assurances the [Rwandan government] had given about the treatment of asylum seekers relocated under it."

'Bias' against Middle East and Afghan claimants

Elsewhere in the ruling, Rwanda's treatment of asylum seekers - particularly those from the Middle East and North Africa - was cited extensively. 

UNHCR told the court that Rwanda had 149,000 refugees in the country, the overwhelming majority of whom were from neighbouring Burundi and the Democratic Republic of Congo. It had also assisted around 1,000 asylum seekers from Libya since 2019.

But the UN body told the court that there were occasions when Rwanda refused to accept asylum claims from Libyan, Syrian and Afghan claimants, all of whom were deported from Kigali Airport. 

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Bottinick also referred to a handful of cases from Yemen and Eritrea in which asylum claims were denied. 

He said that the situation in all those countries were such that the claims were likely to be "well-founded". 

Bottinick added that UNHCR staff had heard senior government officials make statements to the effect that "asylum seekers from the Middle East and Afghanistan should claim asylum in their own region". 

UNHCR went as far as to suggest that Rwanda likely held a bias against asylum seekers in the Middle East and Afghanistan.

"In my view the surprisingly high rejection rate of claimants from known conflict zones, where UNHCR recommends against returns, does indeed suggest a poor quality of decision-making," said Underhill. 

Braverman 'disappointed'

Lord Burnett, who reached the opposite conclusion as his peers, said that he did not "ignore the evidence" of refoulement. 

"Rwanda immediately returned a Syrian to Turkey and an Afghan to Dubai. The evidence suggests that from there they were sent to their countries of origin," he noted.

But he added that the risk of refoulement of an asylum seeker sent by the UK to Rwanda was "low" and that there was "no real risk that asylum seekers relocated under the Rwanda policy will be wrongly returned to countries where they face persecution or other inhumane treatment".

'While we are disappointed with their ruling... I will be seeking permission to appeal this' 

- Suella Bravermen, UK home secretary

The appeal was brought by 10 asylum seekers from Syria, Iraq, Iran, Sudan, Albania and Vietnam, as well as the charity Asylum Aid.

In a statement sent to Middle East Eye, Home Secretary Suella Braverman said that the government would not "take a backward step". 

"The Court of Appeal have been clear that the policy of relocating asylum seekers to a safe third country for the processing of their claims is in line with the Refugee Convention," she said.

"While we are disappointed with their ruling in relation to Rwanda's asylum system, I will be seeking permission to appeal this."

Braverman added that she and the Rwandan government "remain fully committed to this policy". 

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