Lord Etherton:

Moved by Lord Etherton

38: Clause 4, page 4, line 12, after “question” insert “or, where the person in question is a member of a particular social group within Article 1A(2) of the Refugee Convention 1951, for that group”Member’s explanatory statementThis Amendment and the related amendments to Clause 4(1)(b) and Clause 4(4) provide for the situation where the person in question is a member of a particular social group, the members of which have a well founded fear of persecution, and following the decision of the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31 the focus is on the group and not the individual circumstances of each member of the group.

My Lords, in speaking to this Amendment I will speak to Amendments 40, 43, 45 and 51, which I tabled, all of which are connected.

The current version of Clause 4(1) enables an applicant to oppose removal to Rwanda on the ground that it is not a safe country for the applicant only if the applicant provides

“compelling evidence relating specifically to the person’s particular individual circumstances”.

Clause 4(4) provides that the court or tribunal may grant an interim relief

“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.

The defect in these provisions, which the amendments I have tabled are intended to address, is that no provision is currently made for applicants who come within the definition of a refugee in Article 1A(2) of the 1951 refugee convention as persons who have a well-founded fear of persecution because of their

“membership of a particular social group”.

The proper approach of courts and tribunals to such a refugee was described in detail by the Supreme Court in HJ (Iran) v the Secretary of State for the Home Department, and HT (Cameroon) v the Secretary of State for the Home Department, especially in the judgment of Lord Rodger of Earlsferry in the first of those cases. That decision concerned gay applicants who faced persecution in their country of nationality if they lived an openly gay life. It is now clear that such persons are members of a particular social group within Article 1A(2) of the 1951 convention.

In such a case, the court or tribunal must ask whether it is satisfied, on the available evidence, that gay people who live openly would be liable to persecution in the applicant’s country of nationality. If so, the applicant is a refugee within the convention. If the applicant could and would leave discreetly not because of persecution but for reasons of concern about social relations with friends, family and colleagues, they would not fall within the definition of a refugee in Article 1A(2).

The focus, then, in these cases is to identify the social group which has a well-founded fear of persecution and ask whether the applicant is a member of it. Although HJ (Iran) concerned gay men, the analysis in that case, relating to the proper approach to persons who have a well-founded fear of persecution because of their membership of a particular social group within Article 1A(2) of the convention, applies across the board—for example, to a group comprising women, or people of a particular race or ethnicity, or people who hold particular religious or political beliefs. Therefore, these amendments relating to groups are important to reflect our own jurisprudence.

What I have said so far looks at the general issue of members of a social group. I will turn from that to the particularity of the position of a special group, comprising LGBTQIA+ people. In view of comments made by the Minister on Second Reading and by the noble Lord, Lord Sharpe, in his letter to all Peers of 12 February 2024, it is necessary to set the record straight regarding the position of members of the LGBTQI+ community in Rwanda in the context of interim relief under Clause 4(4). As I have said, such interim relief can be granted by a court or tribunal only if it is satisfied that the applicant would face

“a real, imminent and foreseeable risk of serious and irreversible harm” if removed to Rwanda. This reflects the condition for a serious harm suspensive claim under the Illegal Migration Act. On Second Reading, I reminded the Minister, the noble and learned Lord, Lord Stewart of Dirleton, of the assurance given at the Dispatch Box by him and by the noble Lord, Lord Murray of Blidworth, to myself and others—particularly the noble Lord, Lord Cashman—during the passage of the Illegal Migration Act: that the principle to be found in HJ (Iran) would continue to apply.

On Report of the Illegal Migration Bill, addressing an amendment tabled by me, the noble and learned Lord, Lord Stewart, said:

“If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at … risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld”.—[Official Report, 28/6/23; col.768.]

Subsequently, in response to another amendment tabled by me, the Minister, the noble Lord, Lord Murray, said:

“I reiterate two points made by my noble and learned friend Lord Stewart on Report. First, Clause 38 makes it clear that persecution and onward refoulement are examples of harm which constitute serious and irreversible harm for the purposes of a suspensive claim. Secondly, if the open expression of a person’s sexual orientation would prevent them living in a specified third country for the relevant period without being at … risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim, in line with the principles set out by the Supreme Court in the case of HJ (Iran)” .—[Official Report, 12/7/23; col.1812.].

Those statements from the Dispatch Box make it clear that the Government did not intend to deviate from the principles of HJ (Iran). They also make it clear that, where gay people have a well-founded fear of persecution in the applicant’s country of nationality and the applicant is a gay person, that is sufficient for their removal to give rise to a risk of serious and irreversible harm. This is obvious. If it were not so, it would be necessary to distinguish between degrees of harm. Would being beaten up on one occasion for being openly gay not be enough, or would there have to be violence of such a degree as to result in hospitalisation or death? I ask the Minister to address in his reply the approach that is required to be taken under the Bill.

In his reply at Second Reading, the Minister, the noble and learned Lord, Lord Stewart, simply asserted that LGBT people were not at risk of persecution in Rwanda, giving the same explanation as can be found in the Government’s policy statement, published on 12 December 2023, which contains evidence of the safety of Rwanda on which the Government rely. At paragraph 43c, the policy says the following:

“LGBTI persons may face some discrimination in practice in Rwanda. However, Rwandan legal protection for LGBTI rights is generally considered more progressive than that of neighbouring countries. The constitution of Rwanda includes a broad prohibition of discrimination and does not criminalise or discriminate … in law or policy”.

This statement is far too weak to rebut the generally accepted evidence of institutional homophobia in Rwanda. In the first place, the travel advice on Rwanda given by the FCDO remains the same as at the time of the Illegal Migration Bill:

“Homosexuality is not illegal in Rwanda but remains frowned on by many. LGBT individuals can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination Laws that protect LGBT individuals”.

The 2022 US State Department country report on Rwanda, which was published in March 2023—that is, less than a year ago—stated that there was significant discrimination against LGBTQI+ persons, and that LGBTQI+ individuals reported harassment from authorities and abuse by officials of LGBTQ+ persons in transit centres, with trans persons targeted with particularly severe hate speech and physical and sexual abuse. It must also be remembered that there is no equivalent law or legal policy in Rwanda that mirrors the case of HJ (Iran).

Secondly, the fact that the position of LGBT+ people in Rwanda is not so utterly ghastly as in neighbouring countries is neither here nor there, bearing in mind that, in Uganda, same-sex conduct is punishable with life imprisonment and the new anti-homosexuality Act of 2023 introduces the death penalty for several acts considered as what is called “aggravated homosexuality” and increases the prison sentence for attempted same-sex conduct to 10 years, Burundi’s penal code criminalises same-sex sexual relations for both men and women and imposes a sentence of up to two years imprisonment, and Tanzania’s penal code criminalises same-sex sexual activity for men and women, with a maximum penalty of life imprisonment.

Thirdly, the fact that the constitution of Rwanda includes a broad prohibition of discrimination is neither here nor there if the state fails to take adequate steps to prevent persecution against individuals or groups who carry it out. This is again well-established, and was a point made by Lord Rodger, in HJ (Iran). The 2022 US State Department country report on Rwanda, to which I have referred, stated that there were reports that the Government did not adequately respond to reports of abuses and violence against LGBTQI+ persons. The report noted that the law in Rwanda does not explicitly recognise or protect individuals on the basis of sexual orientation, gender identity or expression, or sex characteristics, and does not explicitly prohibit discrimination against LGBTQI+ persons in housing, employment, nationality laws or access to government services, such as healthcare.

The letter of the Minister, the noble Lord, Lord Sharpe, to all Peers on 12 February this year referred to and relied upon the latest country information on Rwanda published by the Government in this country. This was published in January 2024, presumably for the purposes of bolstering the Government’s Rwanda policy and the legislation we are currently considering. We do not know whether the Government of Rwanda played any part in its content. Strikingly, the updated note makes no reference at all to the US 2022 country report on Rwanda.

Finally, I draw attention to the rather curious comment in the letter of the noble Lord, Lord Sharpe, that the assessment of risk faced by LGBTQ+ individuals, in line with the principles in HJ (Iran), is an “exceptionally high bar”. I do not understand that comment. Proof of risk is, in this case, like any other factual matter in civil cases, decided on a balance of probabilities.

In order to be consistent in their policy, and to avoid a head-on clash with domestic and international law, the Government need to reconsider their approach, both generally in relation to refugees who have a well-founded fear of persecution by virtue of being members of a particular social group and, more particularly, in relation to LGBTQI+ people who wish to live openly as such. I beg to move.

My Lords, I am in favour of the amendments in this group, including that in the name of my noble friend Lord Dubs, who cannot be in his place. I have added my name to those in the name of the noble and learned Lord, Lord Etherton, and I thank him for so powerfully putting the case for the amendments. I too received the letter from the Minister, the noble Lord, Lord Sharpe, and will refer to it in my submission.

At the same time, I asked LGBT activists in Africa—in neighbouring countries and within Rwanda—for their reflections. The background information is that, in Rwanda, individuals who identify as LGBT+ face marginalisation and stigma. In order to protect themselves from potential physical and verbal harm, they frequently find it necessary to conceal their sexual orientation and gender identity. By that submission, HJ (Iran) immediately comes into play. Despite homosexuality and same-sex acts not being illegal, as referred to in the Minister’s letter, discussing sexual orientation remains a taboo subject in Rwandan society, with little to no open dialogue on the matter. By way of example, months before a planned June 2021 Commonwealth Heads of Government Meeting, authorities rounded up and detained people regarded as “socially undesirable”, including over a dozen gay and transgender people, sex workers and street children.

The situation now is that the Government have declared their plan to relocate individuals seeking asylum in the UK to Rwanda for the processing of their claims. This policy, in view of those activists in Africa and within Rwanda, will impact LGBTI+ individuals who have escaped life-threatening circumstances in their countries of origin, and in my opinion such treatment would be cruel in the extreme.

There is further evidence from LGBTI activists. Overall, they highlight the complex challenges and dynamics faced by LGBT+ individuals in Rwanda, and emphasise the need for greater awareness and protection. There is evidence of ill treatment and abuse. On the international front, one must rightly recognise that Rwanda is trying to do the right things, but on the ground there is still much more to do around the protection of what is called the queer community.

Despite no formal criminalisation of LGBT+ individuals, there are significant challenges, such as stigma, discrimination and a lack of protection mechanisms in daily life. Discrimination comes mostly from social attitudes, rather than from the authorities in an organised way. Queer LGBT refugees often face societal pressure and discrimination, with instances of anti-LGBT+ groups fuelling violence. While the police generally maintain decent communications with the LGBT+ communities, there are instances of untrained officers exhibiting homophobic, brutal behaviour.

Social discrimination affects various aspects of daily life for LGBT+ individuals, including things that many take for granted, such as housing, employment and social integration, particularly in rural areas and especially for those who come from lower-income communities. Rwandan officials claim that queer refugees should not fear persecution as they do not criminalise them, but societal discrimination does the very job. The activists would like to see provisions in the UK’s Rwanda Bill specifically protecting the vulnerable communities in the country, with a special focus on the LGBT+ community.

I have some direct quotes. One activist said:

“A case that I know is about a person” who, thankfully, has now been now moved to Europe. They said that

“one day, he faced one of the anti-queer groups. He was beaten one night, and they broke his arm”.

Another said:

“The police as an institution has been open to dialogue and discussions about the challenges faced … However, regarding their actual role in protecting LGBTI+ individuals, there have been mixed experiences. While some have found support and understanding from the police, others” have faced “arbitrary arrests or discrimination”.

Sadly, there are more quotes I could continue with. My contention, as a member of this social group, is that you cannot live openly as an LGBT person because to do so would mean facing persecution. Therefore, I contend that these amendments should be adopted.

I will now speak briefly to Amendment 41 in the name of my noble friend Lord Dubs. He has concerns, which are shared by members of the All-Party Parliamentary Humanist Group. Here, I refer to my interest as a patron of Humanists UK. Concerns were raised at Second Reading that Rwanda retains its blasphemy law, in violation of the right to freedom of religion or belief. The punishment for blasphemy can result in imprisonment and/or fines, as evidenced by the US Commission on International Religious Freedom’s Blasphemy Law Compendium. This law may be intended to protect the right to worship, but it is open to misuse, as non-religious beliefs can easily be framed as an insult to religion, as we see in other countries.

Therefore, it is our contention that Rwanda cannot be considered a safe place for those who are non-religious or those belonging to minority religions. They may fall foul of this law simply by expressing their beliefs. This is why my noble friend Lord Dubs has put forward this amendment, to make it clear that those who would be at risk due to their lack of religion, or their minority religion, would fall into the scope of Clause 4. Therefore, on behalf of my noble friend, I put forward this amendment.

My Lords, I support the two amendments just mentioned by my noble friend Lord Cashman. I remind the Committee, in relation to the LGBT community, that when the law was changed in the mid-1960s in this country it did not end the persecution of homosexuals. For years afterwards, there was a constant terrorising of the gay community. “Queer rolling” is a term that noble Lords will remember—men being attacked simply because it was suspected that they might be homosexual, or they were in a particular place at a particular time of night. The situation was really grave.

When I was a young lawyer in the 1970s and 1980s, one found oneself in court representing people who were being framed for the offence of importuning, which is still a criminal offence in Rwanda. The police harassed and monitored particular venues known to be habituated by gay men. It took many years before we ended that cultural underplay, which exists in societies even when the law is changed. We know that this is the situation in Rwanda, which has a high level of persecution of gay people still.

I also support the Amendment in the name of my noble friend Lord Dubs, which relates to freedom of religion and belief. Many of those fleeing Afghanistan are Hazara. It is a religious minority of the Shia tradition, and they are sorely persecuted in Afghanistan and Pakistan. I conducted an inquiry, which concluded at the beginning of last year, into the persecution of the Hazara. It is one of the main reasons that our security services put them on a high level of risk of being persecuted by the Taliban and other extremist groups. Unfortunately, they are likely to continue to be persecuted by others in Rwanda because of their particular religious beliefs.

I, too, feel that there is a misunderstanding about what “safety” means. In this Bill, when we talk about safety, it does not mean that, in declaring that Rwanda is safe, a person cannot say, “It’s not safe for me”. That is the point. When someone comes to a court and says, “this place is not safe for me because I am gay, or because of my religious beliefs or my non-religious beliefs”, those are bases on which any court protecting people’s human rights would declare that the place was not safe. I want that to be in the minds of noble Lords as they ruminate on this Bill and the amendments to this Bill—that questions of safety cannot be rubbed out of existence simply by a declaration of Parliament that a place is safe.

My Lords, I have added my name to these amendments. The noble and learned Lord, Lord Etherton, spoke very powerfully in moving them, and I shall not seek to repeat anything that he said. It is a pleasure to follow the experience and knowledge of noble Lords who have spoken before me in this group.

I just wish to refer to two elements of why I have supported the amendments. I know that my noble friend Lord Scriven will speak to this group after me. The first is a general point with regard to the assessment of safety in a country where the Government have made a political decision that it can be nothing other than safe. This is what we debated on a previous group. That is illustrated in this group to an alarming degree. We can refer to the equality impact assessment with regard to the legislation; that assessment was carried out after the Bill had been agreed by Ministers, as I understand it. Ministers stated that Rwanda was to be a safe country.

The assessment says, in paragraph 3a, in consideration of the duty of eliminating

“unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act”,

that:

“We consider that removal to Rwanda would not risk discrimination or less favourable treatment as it is a safe country”— and that is it. Ministers had already decided that it was a safe country, so equality impact assessments are now rendered almost completely pointless when it comes to Ministers deciding this.

That is notwithstanding the noble and learned Lord, Lord Stewart of Dirleton, stating in this House that he could not say that Rwanda was safe yet, because safeguards were not in place. So we are in a situation where the contradictory nature of the decisions about safety, especially for those who may be more vulnerable than others if they are relocated, has now become political and not evidence based. That should be alarming for all legislators.

The second point that I wish to make is the inconsistency of what the Government are saying, because it is led from the political decision that was made for this Bill. The noble and learned Lord, Lord Etherton, quoted the current FCDO travel advice for someone travelling to Rwanda voluntarily. If they are travelling to Rwanda voluntarily and are LGBT+, they are warned by the Foreign Office that they

“can experience discrimination and abuse, including from local authorities”— that is the Government of Rwanda. So the Foreign Office advises voluntary travellers that they can experience discrimination and abuse from the Government. The Home Office is saying that, for someone being located there involuntarily, there is no possible experience of discrimination and abuse from local authorities. So which one trumps? Is it the Foreign Office or the Home Office that has the best advice to receive on this situation?

On the FCDO traveller advice, with regards to discrimination and abuse from local authorities, the Minister has an opportunity in responding to the Amendment from the noble and learned Lord, Lord Etherton, to outline in clear terms at the Dispatch Box some examples of discrimination and abuse from local authorities. The reason why this is important is that it is the Government’s policy that those who are relocated to Rwanda, once they have been processed, will then become residents of Rwanda in local authority areas. The Government state in their travel advice that there is a recognition of a general concern about discrimination and abuse but that, with regard to this legislation, only specific and personal high-bar thresholds for potential discrimination and abuse can be considered.

The final thing I consider to be relevant is the country note for Rwanda, which is the basis on which the decision-makers will make their decisions, either for remedies or in seeking some form of injunction or relocation. It was cited by the noble and learned Lord, Lord Etherton. The country advice that was withdrawn had an interesting comment on potential crimes against LGBTIQ+ persons:

“Lack of reporting of crimes against LGBTIQ+ persons, due to stigma and fear of harassment, results in limited information”.

The Government, with limited information, can make categorical decisions—but of course, they will be made on a political basis. So perhaps any amendment we move to make this objective is futile, because it is not going to change the fundamental position: that Ministers have politically decided that Rwanda is safe and will always be so.

My Lords, we heard this debate opened with great clarity and legal exactitude by my noble and learned friend Lord Etherton, followed by a very good speech from the noble Lord, Lord Cashman. I am not going to go over all that again, but am I right in this simple analysis of the situation in which the Government seek to place individuals who might be affected by this law?

If I can produce compelling evidence that Rwanda is not safe for me—not my brother, but me—I am entitled to a decision from the Secretary of State, no less, or an immigration officer, that I should not have to go to Rwanda. If that decision is not made in my favour, I have all the advantage of the English legal system, through which I can judicially review the decision of the Secretary of State or the immigration officer. But if I can show that there is compelling evidence not that Rwanda is unsafe for me, but only that it is unsafe for a person like me, I am excluded from all the protection of the law, just because I cannot provide evidence that relates to me as a particular individual—who may, as it happens, not be as well-known as someone like me in Rwanda.

If that is the situation, how can His Majesty’s Government possibly justify that difference? It seems to me to be fundamentally unjust. If that is the case, I hope the Minister, who is very open with your Lordships’ House, will say so, so that the House can decide on Report how to deal with my noble and learned friend’s proposal.

My Lords, it is a pleasure, as always, to follow the noble Lord, Lord Carlile. On this occasion, it is fortuitous to follow him because—without repeating the brilliant points made by the noble and learned Lord, Lord Etherton, and my noble friend Lord Cashman, about the safety of Rwanda for particular groups, which are echoed in my noble friend Lord Dubs’ amendments on religious freedom—he pre-empts a point I want to emphasise about the false binary the Government appear to be creating in Clause 4, for example.

As someone who has worked with the refugee convention for about 30 years, I feel that something is missing—well, there are many things missing, but there is something particularly dangerous about tying the hands of decision-makers in the way proposed, be they the Secretary of State, Border Force, or judicial decision-makers in particular. There is a false binary, which the noble Lord, Lord Carlile, began to outline. At one end of the spectrum, the country is particularly dangerous for Josef K, not other people in Josef K’s family or political party, or in another social group. The language of the Bill uses the following adjectives:

“compelling evidence relating specifically to the person’s particular individual circumstances”,

At the other end of the spectrum—the false binary the Bill proposes—is the general safety of Rwanda, the Bill’s definition of which includes safety from refoulement in particular. Of course, any refugee lawyer or anyone with experience of dealing with asylum anywhere in the world will tell you that, for a great many refugees, the crucial issue—forget the false binary—is membership of a persecuted social group. Those are the social groups highlighted by these amendments, but they could be other political or ethnic social groups, and so on.

On an ordinary reading of this extraordinary draft statute, I have no doubt that even this odd formulation of the specificity of the person’s “particular individual circumstances” would be construed by a court as including membership of a social group. That would be a normal reading of even this draft provision. However, because of all of that odd stuff in Clause 1 about the purposive construction the Government propose—disapplying the common law, disapplying the Human Rights Act and so on—there is now a real question mark about whether social groups are included for the purposes of Clause 4, for example.

To be fair to the Minister, in his letter, which I read, the clear indication is that social groups would be covered, because HJ (Iran) and gay people who are persecuted are alluded to. But, with respect, if that is the case, in the light of the very odd formulation of this draft statute, the noble and learned Lord, Lord Etherton, and others have done the Government an enormous favour. At the very least, they ought to agree to the amendments proposed by the noble and learned Lord. Otherwise, I fear that, because of all these straitjackets in the Bill upon decision-makers, including the Secretary of State, let alone the judiciary—we will come to it later—the Government may find that they are sending people to Rwanda in circumstances where they do not want to, and contrary to the Minister’s letter. For those reasons, I support the amendments in this group.

My Lords, I strongly support the Amendment of the noble and learned Lord, Lord Etherton, which he moved almost unanswerably. I agree with the support given to it by my noble friend Lord Cashman, and I support his proposal of the amendment of my noble friend Lord Dubs.

The specific point my noble friend Lady Chakrabarti made is key. I can understand the idea that Rwanda is not a safe country in general because it has no adequate system of addressing asylum seekers and is willing to refoul people irrespective of the merits. I strongly agree with my noble friend when she says that, if a person—for example, a member of the LGBTI+ community—says, “I would not be safe if I were sent back to Rwanda”, that relates specifically to their “particular individual circumstances”, which is the language of the Bill.

The purpose of the noble and learned Lord’s amendment, and of that of my noble friend Lord Dubs, as proposed by my noble friend Lord Cashman, is not to determine in this House whether Rwanda is safe for LGBTI+ people; it is to ensure that, if there is a question mark over that issue—if somebody asserts that, because they are a member of the LGBTI+ community, the Minister is not tied by determining that Rwanda is a safe country—the courts would then consider the question.

Key to the House’s determination of these amendments is the Government’s view of what the Bill, particularly Clause 4(1), means. In responding to the noble and learned Lord’s amendment, can the noble Lord, Lord Sharpe of Epsom, tell us whether, if a member of the LGBTI+ community asserts that Rwanda is not safe for gay people, a Minister can take that into account under Clause 4 in relation to that person? Can he indicate whether, if that applicant disagreed with a Minister’s conclusion, they could go to the courts? We need to know that to determine whether we need to put the noble and learned Lord’s amendment on the statute book.

My Lords, I support the amendments in this group and seek to tease out a couple of answers from the Minister on these issues. Under the 1951 refugee convention, membership of a particular social group is one of the reasons forming a guard for people to be able to claim refugee status. One would therefore assume that Rwanda, which has signed up to the treaty, would grant asylum to people who are LGBT based on their being a member of that social group. The Government aim to send people who have arrived here via illegal routes, who may be LGBT, to be processed for asylum in Rwanda. I do not know whether noble Lords or the Minister have read the latest Human Rights Watch country report on Rwanda, but it points out that there is a systematic refusal by the Rwandan authorities to grant asylum to those who have fled their home countries because of persecution on the grounds of their sexual orientation or gender identity.

What due diligence have the Government done in claiming that Rwanda is a safe country, and in ensuring that the way it deals with asylum claims from LGBT refugees is equal to the way it does so for others? What is the refusal rate compared to those seeking asylum in Rwanda who are not LGBT individuals? If the Minister cannot answer those questions, there is no way that the Government can claim as a matter of fact that Rwanda is a safe country for those seeking asylum there, given that asylum claims seem to be turned down, according to Human Rights Watch, on the basis of sexuality or gender identity.

The Government have not referred to their own impact assessment on the first treaty, the memorandum of understanding with Rwanda, from May 2022. It said that the Home Office was concerned about the treatment of LGBT people in Rwanda and that cases of “ill treatment” towards this group were “more than one off”. What has changed between May 2022 and the impact assessment for this Bill, which says that ill treatment of LGBT+ people in Rwanda no longer takes place and that these “more than one off” issues of discrimination and ill treatment have stopped?

Finally, I turn to the Amendment of the noble Lord, Lord Dubs. The latest US Report on International Religious Freedom on Rwanda shows clear evidence of discrimination against certain religious practices, even though the Laws of Rwanda protect religious freedom. Examples are cited, including that pressure has been put on religious leaders and organisations on multiple occasions when that religious leader or organisation criticises the Rwandan Government’s policy. Recently, the Muslim community has been targeted about its call to prayer practices and has had a number of repressive actions taken against it by the Rwandan police. Noble Lords should remember that many of the people arriving on our shores via irregular routes are of Muslim faith, coming from Muslim countries. I ask the Minister what assessment has been done on religious freedom. Have the Government come across the issues that the US Report on International Religious Freedom has identified? What commitments have they got from the Rwandan Government that these kinds of practices will stop?

My Lords, this group is concerned with members of specific social groups. I welcome the points made by the noble and learned Lord, Lord Etherton: the Government have repeatedly put forward plans in legislation which appear to ignore the very real danger posed to members of certain social groups, including LGBT+ people, in many countries around the world including Rwanda. It again raises the issue of refoulement and the danger it poses; my noble friend Lord Coaker has already spoken about refoulement and has tabled amendments that would address this concern.

I also welcome the Amendment tabled by my noble friend Lord Dubs and spoken to by my noble friend Lord Cashman who, alongside Humanists UK, has pointed out the dangers posed to the religious minorities or those who have no religion in Rwanda.

This group has been interesting. It has been a relatively short debate but has focused on the core issues raised by the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and my noble and learned friend Lord Falconer and my noble friend Lady Chakrabarti about the false dichotomy between individuals and groups in general. I think it was my noble and learned friend who said that the effect of the amendment in the name of the noble and learned Lord would be that the Minister is not tied to the Government’s stated view that Rwanda is a safe country; rather, it would be for the courts to decide that in individual cases where, for example, someone may be gay.

Surely involving our courts in the decision-making process goes to the very heart of the absurdity of the Government making a blanket decision that Rwanda is a safe country. It is doing no more than dipping our toe into the court system by asking it to review individuals who are particularly vulnerable. The amendment is not in any way driving a coach and horses through the legislation; it is trying to reflect concerns for vulnerable individuals through well-established practices within our courts. We support it.

My Lords, as we have previously set out, the purpose of the Bill is to stop the boats and end the perilous journeys being made across the channel as it is the busiest shipping lane in the world. These journeys are overwhelmingly made by young, fit men in search of better job opportunities, who are travelling from a safe country. Males represented 88% of small boat arrivals in the year ending September 2023. This is a similar proportion as each year from 2018 to 2021.

Since January 2018, 75% of small boat arrivals have been adult males aged 18 and over. We need a strong deterrent to stop illegal migration and measures to prevent removals being frustrated; we have therefore taken bold steps. However, to ensure that we are meeting our international obligations, Clause 4 provides that a Home Office decision-maker or a court or tribunal can consider a claim that Rwanda is unsafe based on compelling evidence relating specifically to a person’s individual circumstances.

As the Government have set out, since the partnership was announced, UK officials have worked closely with the Government of Rwanda to ensure that individuals relocated under the agreement will be safe and that their rights will be protected. The Government’s legal position, published on 11 December 2023, further sets out that the treaty, and the evidence pack, provide for compliance with the Government’s substantive obligations under international law. Therefore, no one will be removed to Rwanda if they face a real risk of serious and irreversible harm.

I turn to Amendments 38, 40, 43, 45 and 51 in the name of the noble and learned Lord, Lord Etherton, and Amendment 41 in the name of the noble Lord, Lord Dubs, as spoken to by the noble Lord, Lord Cashman. These proposed amendments to Clause 4 would undermine one of the principles that the Bill is seeking to address; namely, to limit the challenges that can be brought against the general safety of Rwanda, even with the signed treaty and updated evidence presented by the Government.

The legislation is clear and affords the appropriate safeguards to ensure that decision makers make a decision about the particular circumstances of each case. The Bill already allows decision-makers and the courts to consider certain claims that Rwanda is unsafe for an individual person due to their particular circumstances, despite the safeguards in the treaty, if there is compelling evidence to that effect.

I of course entirely understand the desire of the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Cashman, to get clarity and certainty on this issue. For people who identify as LGBT+, that consideration would include any assessment of any compelling evidence reviewed in line with the principles outlined in HJ (Iran)—as referenced by the noble Baroness, Lady Chakrabarti—that being LGBT+ would mean that Rwanda was not safe for them in their particular circumstances.

As in all cases under the provisions of the Bill, individuals will be given the opportunity to provide that compelling evidence that they would be at risk in their particular circumstances if they were relocated to Rwanda. That would include any alleged harm as a result of an individual’s gender or sexuality. As I say, any such claims would be assessed on a case-by-case basis, and in the case of LGBT+ claims, that would include any assessment in line with the principles outlined in HJ (Iran).

I make it clear that the Rwandan penal code does not punish homosexuality or relations between people of the same sex. The constitution of Rwanda includes a broad prohibition of discrimination and does not criminalise or discriminate against sexual orientation in law or policy. As regards the FCDO advice, which I was asked about, paragraphs 173 and 174 of the policy statement deal with this, stating:

“As experts on the bilateral relationship between the UK and Rwanda and its development over the past thirty years, FCDO officials based in the relevant geographic and thematic departments working closely with colleagues in the British High Commission in Kigali have liaised with the Home Office throughout the production of this Policy Statement … Information drawn from their institutional expertise as to the in-country situation in Rwanda, and Rwanda’s history of compliance with its international obligations is reflected as appropriate throughout”.

The noble Baroness, Lady Bennett of Manor Castle, raised concerns about the unequal treatment of women in Rwanda during Monday’s debate. The Rwanda country report refers to the National Commission for Human Rights, or NCHR, which is a constitutional commission provided for by the Rwandan constitution. The NCHR is made up of seven commissioners. Each of them has a specific area of focus, including the rights of women. There is a commissioner who is a focal person for or who is in charge of those rights.

The country report concludes that the general treatment of women is good. Women and children’s rights, among those the NCHR monitors, have seen an improvement since the creation of the NCHR. That is reflected in the Laws and the constitution, which provides for specific groups’ rights; for example, women, children, and the disabled. The situation is the same for women as for those who are disabled. They are allowed to be elected, and at each administrative level at least 30% of representatives have to be women. In Parliament, more than 60% of representatives are women; the current Rwandan Cabinet is 50% women, and five out of the seven commissioners in the NCHR are women.

Women’s rights are respected in every area. Although the NCHR receives some complaints about rights to property, Rwandan family law was amended to allow women to inherit from parents in 1999. The country information note also refers to the police response to victims of gender-based violence and the Gender Monitoring Office, which considers specific issues relating to gender-based violence. The National Women’s Council is represented from village level and at every level above and is a channel for sharing information on anything regarding gender-based violence. It is the responsibility of local leaders to ensure that there are no gender-based violence issues in their area of control. Police monitor what is going on; they can investigate and come up with a report or action.

Furthermore, the rule of law index, which ranks countries on indicators including equal treatment and the absence of discrimination, ranks Rwanda 26th out of 142 countries worldwide and first out of 34 countries in the region. That is a measure of whether individuals are free from discrimination—based on socioeconomic status, gender, ethnicity, religion, national origin, sexual orientation or gender identity—with respect to public services, employment, court proceedings and the justice system. I add that the 2022 US State Department human rights practices report on Rwanda noted:

“Women have the same legal status and are entitled to the same rights as men, including under family, labor, nationality, and inheritance laws. … The law requires equal pay for equal work and prohibits discrimination in hiring decisions”.

As I indicated at the start, this clause provides the foundations for the Bill as a whole; it is fundamental to the effective operation of the scheme, and the amendments put forward would serve only to weaken its effectiveness. I therefore invite the noble and learned Lord to withdraw his amendment.

I am very grateful to the Minister for his reply and to those who have spoken. What the debate has shown, short as it was, is that the issue of social groups and how they fit into the legislation is very important. Many points were made on various issues that were all extremely valuable, including the wonderful examples given by the noble Lord, Lord Cashman. The noble Baroness, Lady Kennedy of The Shaws, referred to the ongoing discrimination even after decriminalisation took place here; the noble Lord, Lord Purvis of Tweed, made criticism of the equality impact assessment; and the noble Lord, Lord Scriven, referred to Human Rights Watch’s latest report.

In addition to those points, what this debate has teased out—and this fits in with the Amendment spoken to by the noble Lord, Lord Cashman, on behalf of the noble Lord, Lord Dubs—is what the noble Baroness, Lady Chakrabarti, referred to as the “false binary”. It is a critical issue. For this, I am extremely grateful to my noble friend Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Falconer. Even after the Minister’s reply, it remains unclear how one treats someone who has not personally experienced persecution, because, for example, they have hidden their sexuality, their religious views or their political views, but who is a member of a group that has a well-founded fear of persecution were there to be an honest expression of their sexuality or their political and social views or a display of their ethnicity or race. How would one treat those people? The false binary does not allow one to take into account the effect of being a member of a group, as opposed to—as my noble friend Lord Carlile referred to it—being “about me”.

I ask the Government to consider carefully whether, without any undermining of the Bill and its purposes, the introduction of the amendments that I have tabled would not add an important element of clarity, both for those assessing claims—the Ministers, the Government and immigration officers—and for the courts. Subject to that, and on that basis, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.