Blog post by Dr James C. Simeon, Associate Professor, York University
On 15 November 2023, the Supreme Court of the United Kingdom (UK) rendered its judgement on R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants) v. Secretary of State for the Home Department (Appellant/Cross Respondent), [2023] UKSC 42, regarding the UK Government’s Rwanda Policy, that would send asylum seekers arriving on boats in the UK to Rwanda to have their claims decided by Rwandan authorities. The UK Supreme Court ruled that the Rwanda Policy was unlawful. Specifically, the UK Supreme Court made two clear findings in this regard:
- “… the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.”
- “… the Secretary of State had failed to consider the risk of refoulement with the degree of care required either under the common law or under Article 3 of the ECHR [European Convention on Human Rights].”
The overall conclusion thus rendered by the UK Supreme Court was that the “Secretary of State’s policy is unlawful.”
The Supreme Court of Canada rendered its judgement on Canadian Council for Refugees v. Canada (Citizenship and Immigration) on 16 June 2023, on three questions respecting the Canada – United States Safe Third Country Agreement:
- Is s. 159.3 of the IRPR (Immigration and Refugee Protection Regulations) ultra vires .[i.e., beyond its legal power or authority]? [Section 159.3 of IRPR states, “The United States is designated under paragraph 102(1)(a) of the Act as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(e) of the Act.”]
- Does s. 159.3 unjustifiably breach s. 7 of the Canadian Charter of Rights and Freedoms (hereafter referred to as the Charter)? [Section 7 (Legal Rights) of the Charter states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”]
- Should the s. 15 Charter claim be remitted [returned] to the Federal Court or decided based on the record on appeal? [Section 15, Equality Rights, of the Charter states, “15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.]
The Supreme Court of Canada answered these questions as follows: (1) s. 159.3 of the IRPR is not ultra vires; (2) s. 159.3 of the IRPR does not unjustifiably breach s. 7 of the Charter; and (3) the s. 15 Charter claim is remitted to the Federal Court. Thus, the appeal was allowed in part.
It is important to note at the outset that these two “Safe Third Country Agreements,” the Canada-US agreement and the UK-Rwanda agreement, are very different in many fundamental respects. Obviously, the Safe Third Country Agreement between Canada and the United States is between two countries that are bordering each other, while the United Kingdom and Rwanda are on separate continents and about 7,000 kilometers apart. Further, the United States is not like Rwanda in so many respects such as geography, climate, demographics, economy, quality of life, health care systems, military, and so on. Further, the United Kingdom’s arrangements with Rwanda are based on a Migration and Economic Development Partnership (MEDP) that is a MOU (Memorandum of Understanding) and two Diplomatic Notes Verbales that were entered into on 13 April 2022. Moreover, the UK government, through the MEDP, has paid the Rwandan government some 140 million Pounds to date and with further payments in the future conditional on Rwanda’s compliance to the terms in the MEDP. Under these arrangements, those who arrive in the UK by boat to claim asylum could then be flown to Rwanda to have their claims for asylum heard there. The UK, of course, would have to pay for these flights to Rwanda. The two “Safe Third Country Agreements” could not be more different in these elementary respects.
AAA (Syria) and others UK Supreme Court Judgement
The UK Supreme Court noted that it would be “unlawful under section 6 of the Human Rights Act, [Acts of public authorities, (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right] for the Secretary of State to remove asylum seekers to countries where there are substantial grounds to believe that they would be at a real risk of ill-treatment by reason of refoulement.” Here the Supreme Court of the UK relied on the European Court of Human Rights judgement in Ilias v. Hungary (2019) that State Parties cannot remove asylum seekers to a third country without determining their asylum status unless the third country can determine their asylum claims properly. And, further, it is noted that this will require an assessment of how the asylum system in the receiving State operates in practice.
What is particularly important is that the UK Supreme Court ruled that what needs to be determined is not whether asylum seekers removed to Rwanda would, in fact, be subjected to refoulement but whether there were “substantial grounds for believing that they would be at risk of refoulement.”
The UK Supreme Court also found that UNHCR has “unique and unrivalled expertise… in the field of asylum and refugee law” and relied on its submissions with respect to Rwanda’s asylum system. Among these were the 100 percent rejection rate for asylum seekers from Afghanistan, Syria, and Yemen, which is particularly significant as these are likely to be common countries of origin for asylum seekers who will be sent to Rwanda to have their asylum claims decided. UNHCR found that the Rwandan asylum decision-makers have an inadequate understanding of the requirements of refugee law. While the right to appeal an asylum decision is essential, from the evidence presented it appears that it has never been employed in practice in Rwanda. For all these reasons, including the fact that Rwanda has a poor human rights record, UNHCR has been led to express concerns regarding Rwanda’s asylum system.
It is also worth noting that Rwanda had a similar agreement with Israel, but the Supreme Court of Israel found the agreement to be unlawful.
Canadian Council of Refugees v. Canada (Citizenship and Immigration) Supreme Court of Canada Judgement
The Supreme Court of Canada noted that those challenging the Safe Third Country Agreement on the grounds of a breach of section 7 of the Canadian Charter of Rights and Freedoms “must show that the impugned legislation deprives them of life, liberty or security of the person…a risk of such a deprivation suffices.” And, in addition, the “challengers must show the deprivation is not in accordance with the principles of fundamental justice.”
The Supreme Court of Canada went on to state that since its judgement in Canada (Attorney General) v. Bedford, 2013, curative provisions [which can permit an appeal to be dismissed despite a legal error, provided the error is harmless and does not cause a miscarriage of justice] have taken on increased significance. Bedford recognizes that a regime can be rational and non-arbitrary in nearly all circumstances but, nonetheless, violates section 7 of the Charter if it is arbitrary, overbroad, or grossly disproportionate for one individual. Furthermore, the challengers must not only show that the effects fall within the scope of section 7, but that these effects are caused by Canadian State action.
Upon reviewing the evidence, the Supreme Court of Canada pronounced that “the record does not support the conclusion that the American detention regime is fundamentally unfair.” Indeed, the Supreme Court of Canada summarized its key findings and concludes as follows:
In sum, even assuming that claimants face real and not speculative risks of refoulement from the United States, the Canadian legislative scheme provides safety valves that guard against such risks. For that reason, the legislative scheme implementing the Safe Third Country Agreement is not overbroad or grossly disproportionate and therefore accords with the principles of fundamental justice. In light of this conclusion, as well as my conclusions on deprivations related to detention, no breach of s. 7 of the Charter has been established. [Canadian Council of Refugees v. Canada, para 163]
And, with respect to section 15 of the Charter, [Equality Rights – Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination…] the Supreme Court of Canada found that the “Court of Appeal erred in deciding that the challenge to section 159.3 of IRPR [The United States is a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture.] based on section 15 of the Charter should be dismissed rather than be remitted to the Federal Court.” Accordingly, it directed that the Federal Court should assess the Safe Third Country Agreement in light of section 15 of the Charter [the equality provisions] on the grounds of gender-based persecution; that is, whether those who fear gender-based persecution and are claiming asylum in the United States will receive a proper asylum hearing. This case is still pending with the Federal Court of Canada.
A Comparison of the Two Supreme Court Judgements
From the unanimous judgements of the two Supreme Courts in the UK and Canada, it is evident that they were addressing very different “Safe Third Country Agreements.” But, in both instances, they were being challenged primarily on human rights grounds: for the UK on section 6 of its Human Rights Act, that incorporated the ECHR in UK law; and, for Canada sections 7 and 15 of the Canadian Charter of Rights and Freedoms. In Canada, detention, and the deprivation of liberty under section 7, played a much more important role than in the UK, where the focus was very much whether there were substantial grounds to believe that asylum claimants would face a real risk of refoulement and whether they would even receive a proper asylum hearing. At the core of this is that the Canada – US Safe Third Country Agreement was premised on making an asylum claim in the country of first entry, while the UK – Rwanda Agreement was very much premised on sending certain asylum seekers to Rwanda to have their claims determined there and compensating the Rwandan government for doing so.
The slogan used by the UK Government is “Stop the Boats,” a political cry intended to galvanize national support for limiting access to asylum for those crossing the English Channel in small boats, which is a clear breach of the UK’s Treaty obligations under international law. While the two “Safe Third Country Agreements” differ in degree, with the UK in the extreme, they are both premised and intent on limiting access to asylum. In the case of Canada and the US, the agreement tends to limit far more of those who are coming from the US to Canada than those travelling in the opposite direction. In the UK, the agreement is a blatant attempt to block and to deter those seeking to enter the UK by boat. While the Supreme Court of Canada found that the Safe Third Country Agreement with the US did not breach s. 7 of the Charter, it left open the possibility of a breach under s. 15 of the Charter. On the other hand, the UK Supreme Court found the “Safe Third Country Agreement” wanting in numerous respects and thus declared the Rwanda Policy unlawful.
Despite the UK Supreme Court’s rebuke of the Rwanda Policy on a legal basis, the UK Government of Rishi Sunak is persisting and has vowed to find ways around the UK Supreme Court’s judgement.
In March 2023, US President Joe Biden and Canadian Prime Minister Justin Trudeau extended the Canada-United States Safe Third Country Agreement by seeking to limit the number of asylum seekers entering from unofficial entry points and the overall numbers of asylum seekers entering Canada from the United States. While the number of asylum seekers entering unofficial entry points has lowered, the overall number of asylum seekers entering Canada, especially at airports, has increased and there has not been a reduction in the total number of asylum seekers claiming refugee protection.
Undoubtedly, there will be more legal challenges to the UK Government’s efforts at revising its Rwanda Policy so that it can proceed. In this sense, then, both Canada and the UK still have outstanding legal challenges to come to their respective so-called “Safe Third Country Agreements.”
It is clear that “Safe Third Country Agreements” are fraught with legal and political peril for governments who seek to limit asylum seekers from entering their country. Such mechanisms undermine our humanitarian traditions and the very nature and foundations of our liberal democratic societies, while at the same time weakening the international refugee protection regime as a whole. It would be far more effective for governments to seek to address the root causes of forced migration rather than to breach their international and national human rights standards and obligations.
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