Tuesday’s cancelled Rwanda flight and the eleventh hour decision by the European Court of Human Rights (ECtHR) highlight the significance of using a Memorandum of Understanding (MoU) to agree a deal with Rwanda.

The UK-Rwanda MoU has attracted criticism from across the political spectrum on ethical, political and financial as well as legal grounds. Two of these criticisms concern its status as a non-binding MoU: can the promises in the MoU be upheld? And should the policy have been subject to prior parliamentary scrutiny? As an access to justice charity with strategic priorities that include a fair and humane immigration system and a constitution that promotes accountability, these issues are of direct concern to Public Law Project. 

Arabella Lang, Head of Research at Public Law Project, said:

“Yesterday’s planned flight did not go ahead partly because the ECtHR found that the UK Government would have no effective mechanism to force the Rwandan Government to return people to the UK if the UK courts find that the policy is unlawful when they hear the case in full in July.

“In making its decision, the ECtHR deferred to the UK court finding that there were ‘serious triable issues’ around removals to Rwanda. Where the ECtHR differed was in ruling that there was an ‘absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts’.

“This showed why the enforceability of the MoU matters and is just one of two crucial outcomes of the decision to write it as a non-binding MoU instead of a treaty.

“Firstly, it meant there was no parliamentary scrutiny of the merits, practicality, lawfulness, implications or costs of the deal. It is unusual and problematic that a policy with such significant obligations and effects on people was not subject to any scrutiny let alone approval by Parliament, and therefore that the primary scrutiny is that provided by the courts.

“Secondly, the nature of the MoU means that the UK cannot enforce the agreement. If people are mistreated in Rwanda or do not have access to a fair immigration process, legally there is nothing the UK can do to put things right. There is no dispute resolution process and no recourse to international courts.

“This is because non-binding MoUs by their very nature are not enforceable under international law. They are simply political assurances. If the Government had chosen a treaty instead, it would have been published in advance, been scrutinised by Parliament, and could have included binding rules on what happens if the arrangements were breached.

“An important feature of the relationship between the MoU and the ECHR is that the MoU does not override the UK’s existing obligations under binding international treaties. Where there is no effective access to justice or where the principle of non-refoulement or individual rights are violated, a policy is unlawful regardless of whether an MoU or a treaty was chosen: the question for the courts is how much weight to give any assurances.”

Further reading: Arabella Lang, ‘Rwanda MoU: scrutiny is the oxygen of democracy’, Law Society Gazette 16 June 2022.