This legal analysis of the Rwanda Treaty and Bill and the UK’s legal obligations towards victims of modern slavery and human trafficking (MSHT) has been conducted by Dr Marija Jovanovic from the University of Essex. She is the author of State Responsibility for ‘Modern Slavery’ in Human Rights Law (Oxford University Press, 2023).
The analysis has been commissioned by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC), which in turn is funded and supported by the UK Arts and Humanities Research Council (AHRC).
The Modern Slavery PEC has actively supported the production of this legal analysis. However, the views expressed in this document are those of the author. The author is grateful to James Robottom, Barrister at Matrix, for detailed comments on a draft of this analysis.
This report analyses the provisions of the UK - Rwanda Treaty 2023 and the Safety of Rwanda (Asylum and Immigration) Bill in light of the UK’s international obligations towards victims of modern slavery and human trafficking (MSHT) contained in Article 4 of the European Convention on Human Rights 1950 (ECHR) (prohibition of slavery and forced labour) and the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 (ECAT).
It is important to specify that this analysis focuses solely on the requirements under the ECAT and Article 4 ECHR and does not consider the conditions under which International Refugee Law would permit removing people seeking asylum to a third country when the issue of modern slavery and human trafficking was not at stake. Unlike international treaties designed to protect victims of modern slavery and human trafficking, International Refugee Law does not impose an express obligation on States not to remove individuals before their refugee status is determined, nor the obligation to investigate, prosecute, and punish individual perpetrators. Drafted half a century later, the anti-trafficking instruments are much more explicit, concrete, and demanding when it comes to protection requirements.
Accordingly, this analysis emphasises the need to distinguish between obligations arising from international anti-trafficking instruments (the majority of which have been integrated in the ECHR) and those established under International Refugee Law, and emphasises the need for decoupling the issue of modern slavery and human trafficking from migration control.
Section 1 of the analysis focuses on the international law obligation to identify and protect every victim of modern slavery and human trafficking. Article 13 of the Rwanda Treaty expressly envisages the UK not completing the victim identification process in relation to individuals who are deemed to have arrived in the UK illegally. This is a breach of an explicit international obligation to identify and assist every victim of modern slavery and human trafficking, including those who entered or are present illegally, contained in both Article 4 ECHR and Article 10 ECAT.
Section 2 of the analysis explains international law obligations pertaining to the removal of victims of modern slavery and human trafficking. It finds that by providing for removal to Rwanda of suspected victims of modern slavery or human trafficking (individuals who there are reasonable grounds to believe are victims of modern slavery or human trafficking), Article 13 of the Rwanda Treaty and the Safety of Rwanda Bill contravene the express international obligation in Article 10(2) ECAT not to remove such individuals (including to third countries) until the identification process is complete. Removing confirmed victims of modern slavery or human trafficking to Rwanda without an assessment of the risk of re-trafficking they may face, also gives rise to the risk of breaches of Article 4 ECHR by analogy with Article 16 of ECAT. The latter sets out conditions under which an identified victim of modern slavery and human trafficking can be returned to the country of their nationality/permanent residence, which is permitted only after conducting an assessment of the impact of such return on ‘the rights, safety and dignity of that person’, including the risk of re-trafficking. While the ECAT does not expressly govern the removal of identified victims to third countries, by analogy the same conditions ought to apply in such cases.
Section 3 of the analysis discusses the operational duty to protect victims of modern slavery or human trafficking contained in Article 4 ECHR, which includes the protection of those at risk of being subject to modern slavery or human trafficking and prevent re-trafficking. This obligation requires states to consider the risk of re-trafficking when making decisions to remove a suspected or confirmed victim of modern slavery and human trafficking from their territory to a third country. The Rwanda Treaty and the Human Rights Memorandum accompanying the Safety of Rwanda Bill fail to acknowledge the risk of violating this obligation and the need to instruct decision-makers to assess the risk of re-trafficking of presumed or confirmed victims of modern slavery or human trafficking.
Section 4 of the analysis considers the international law obligation to prosecute and punish the perpetrators of modern slavery and human trafficking. It finds that in addition to the obligation to identify every victim of modern slavery and human trafficking, the removal of individuals with a reasonable grounds decision envisaged by Article 13 of the Rwanda Treaty risks breaching a duty to investigate and punish the perpetrators of this crime contained in Article 4 ECHR and Article 27 ECAT. Victims of modern slavery and human trafficking are often the only witnesses of this crime and without their assistance the perpetrators are likely to remain at large.
Overall, removing to Rwanda individuals with a positive reasonable grounds decision (suspected victims), as envisaged by Article 13 of the Rwanda Treaty, will automatically and in all cases put the UK in breach of Article 4 ECHR as well as Article 10 ECAT. In addition, removing identified victims of modern slavery and human trafficking without conducting an individualised assessment of the risk of re-trafficking would breach the operational duty under Article 4 ECHR. Lastly, removing suspected or confirmed victims of modern slavery and human trafficking risks interfering with an obligation to investigate and prosecute the perpetrators of modern slavery and human trafficking contained in Article 4 ECHR and Article 27 ECAT.
Importantly, the conclusions in relation to the incompatibility of the Rwanda Treaty and Bill with the UK’s obligations under Article 4 ECHR and ECAT are not restricted to Rwanda alone, but would apply to removing individuals to third countries without specific safeguards prescribed by these international instruments.
Finally, the conclusion notes that while the present analysis found the provisions of both the Treaty and the Bill incompatible with protective obligations enshrined in Article 4 ECHR and ECAT, the Rwanda Bill prevents victims of modern slavery and human trafficking from raising those incompatibilities before UK courts. Clause 3 of the Rwanda Bill provides for disapplication of sections 2 and 3 of the Human Rights Act 1998 (HRA), which would enable domestic courts to interpret this legislation in line with the ECHR in relation to Rwanda claims. Furthermore, clauses 1 (4) and (6) of the Rwanda Bill specify that its validity is unaffected by international law, including the ECHR and ECAT and clause 2(5) provides that the conclusive deeming of Rwanda as a ‘safe country’ applies notwithstanding any interpretation of international law.