19 Nov 2023 5:12 AM GMT
In a significant legal development, the United Kingdom Supreme Court recently issued a ruling, declaring the UK government's policy of relocating asylum seekers to Rwanda unlawful. Led by the UK Home Secretary, this policy drew intense scrutiny for its potential breach of the principle of non-refoulement, a bedrock of international refugee and human rights law, as per which, a country...
In a significant legal development, the United Kingdom Supreme Court recently issued a ruling, declaring the UK government's policy of relocating asylum seekers to Rwanda unlawful. Led by the UK Home Secretary, this policy drew intense scrutiny for its potential breach of the principle of non-refoulement, a bedrock of international refugee and human rights law, as per which, a country is forbidden from returning asylum seekers to a country in which they would be in probable danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion". While the UK Supreme Court's unanimous decision underscored the importance of upholding the lives and freedom of asylum seekers, it prompts a reflection on the stance taken by the Indian Supreme Court in 2021 regarding the plight of Rohingya refugees, who were allowed to be deported back to Myanmar despite facing a genocidal threat by Myanmar’s military rule.
The UK Supreme Court’s Ruling
The matter before the UK Supreme Court pertained to a policy involving the transfer of certain seeking asylum in the UK to Rwanda, where their asylum claims would be evaluated by Rwandan authorities. Under the policy, asylum claims were considered inadmissible if the claimant had the opportunity to apply for asylum in a safe third country but failed to do so. The claimant could then be removed to any “safe third country” that agreed to accept them. The safety of a third country hinged on the respect for the principle of non-refoulement. This principle is codified under Article 33 of the Refugee Convention, which states that no refugee should be expelled or returned to a territory where the life or freedom of the refugee would be threatened based on race, religion, political opinion, nationality, or membership in a particular group. It may be noted that the UK is a signatory to both the Refugee Convention and its protocol.
The UK and Rwandan governments, on April 13, 2022, entered into a Migration and Economic Development Partnership (MEDP), in accordance with which, the UK Home Secretary deemed Rwanda a safe third country for asylum seekers. However, a group of asylum seekers contested both the lawfulness of the Rwanda policy and the specific decisions to remove each claimant to Rwanda. The matter eventually reached the Supreme Court which unanimously held that the Rwanda policy was unlawful.
The UK Supreme Court's ruling against the government's asylum policy to relocate individuals to Rwanda was based on some key factors. Firstly, Rwanda's poor human rights record, criticized by the UK government in 2021 for issues such as extrajudicial killings and torture, raised concerns about the safety of asylum seekers in Rwanda. Secondly, evidence from the UNHCR highlighted serious flaws in Rwanda's asylum procedures, including concerns about the lack of legal representation, potential lack of judicial independence, a high rejection rate for asylum claims from conflict zones, ongoing refoulement practices, and an apparent misunderstanding of Refugee Convention requirements. Lastly, the court considered Rwanda's recent failure to comply with a non-refoulement undertaking in an agreement with Israel, casting doubt on Rwanda's commitment to international refugee protection principles. These factors collectively led the Supreme Court to deem the Rwanda policy unlawful.
Indian Supreme Court’s Ruling For Rohingya Refugees
In 2021, the Indian Supreme Court, in the case of Mohammad Salimullah and Another v. Union of India and others, refused to grant relief in a petition challenging the detention of Rohingya refugees in Jammu and allowed them to be deported back to their parent country Myanmar by following the due procedure. The applicants in the matter had referred to a 2020 order passed by the International Court of Justice to highlight that Rohingyas faced genocidal threat in Myanmar. It was pointed out that Myanmar was at the time governed by a Military government. Therefore, sending Rohingyas - who had faced atrocities from the army even during the civilian rule- back to Myanmar when it is under a Military rule would endanger them. The primary argument used by the Indian Government at the time was that India was not a party to the Refugee Convention of 1951 and thus, was not bound by the principle of non-refoulement as provided under Article 33 of the Refugee Convention.
Was India Bound By “Non Refoulement”?
It is true that India is not a party to the 1951 Refugee Convention or its 1967 Protocol and does not have any legislation that recognizes the rule of non-refoulement. However, contrary to the Government’s assertion that it is not bound by the principle of non-refoulement, international law suggests otherwise. The principle of non-refoulement is considered a customary international law that binds all nations, irrespective of their Refugee Convention status. The same was also stated by the UNHCR, in its Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. In fact, the Executive Committee Conclusion No. 25 on International Protection, UNHCR (1982) even suggested that non-refoulement was “progressively acquiring the character of a peremptory rule of international law.” A peremptory rule or a jus cogens norm refers to a rule so fundamental to the practice of international law that no derogation from it can ever be permitted. Thus, regardless of India being a signatory to the Refugee Convention or not, it remains bound to the principle of non-refoulement.
Moreover, India's obligation under other international instruments, such as the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture, implicitly prohibits refoulement. The prohibition of torture, a jus cogens norm, reinforces India's obligation not to send individuals to places where they may face such treatment.
The UK Supreme Court's ruling against the Rwanda asylum policy serves as a critical reminder of the importance of upholding non-refoulement principles in international law. India's approach to the Rohingya issue, despite not being a party to the Refugee Convention, must be critically examined in light of its broader international obligations. As the world navigates complex refugee challenges, adherence to non-refoulement becomes increasingly crucial for safeguarding the rights and dignity of individuals seeking asylum.