In a significant asylum law judgment, the UK Supreme Court unanimously ruled that the government’s plan to relocate asylum seekers to Rwanda is unlawful.
The decision upholds the Court of Appeal’s June judgment, which highlighted deficiencies in Rwanda’s asylum system, posing a risk of refoulement for asylum seekers.
The Supreme Court stressed that Rwanda is not a safe third country for asylum seekers, and changes needed to eliminate the risk of refoulement have not been demonstrated to be in place.
The court considered legal aspects, not political factors, and expedited the judgment due to public interest. The Refugee Council hailed the ruling as a victory for the rights of those seeking safety, emphasizing the need for a fair and humane asylum system. Immigration minister Robert Jenrick expressed determination to make the policy succeed, while reports suggest the government may explore other options, including renegotiating with Rwanda or elevating the existing memorandum of understanding to a treaty for parliamentary approval.
The Supreme Court’s press summary with full details of today’s momentous decision follows below:
THE COURT ORDERED that no one shall publish or reveal the names or addresses of AAA, HTN, RM, AS, SAA or ASM (the “Claimants”) or publish or reveal any information which would be likely to lead to the identification of the Claimants or of any member of their respective families in connection with these proceedings.
Press Summary
15 November 2023
R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent)
R (on the application of HTN (Vietnam)) (Respondent/Cross Appellant) v Secretary of State for the Home Department (Appellant/Cross Respondent)
R (on the application of RM (Iran)) (Respondent) v Secretary of State for the Home Department (Appellant)
R (on the application of AS (Iran)) (Respondent/Cross Appellant) v Secretary of State for the Home Department (Appellant/Cross Respondent)
R (on the application of SAA (Sudan)) (Respondent) v Secretary of State for the Home Department (Appellant) and
R (on the application of ASM (Iraq)) (Appellant) v Secretary of State for the Home Department (Respondent)
[2023] UKSC 42
On appeal from [2023] EWCA Civ 745
Justices: Lord Reed (President), Lord Hodge (Deputy President), Lord Lloyd-Jones, Lord Briggs, Lord Sales
Context of the Appeal
The case involves a legal challenge to the Home Secretary’s policy of sending certain asylum seekers in the UK to Rwanda for their claims to be decided by Rwandan authorities. The Supreme Court is tasked with determining the lawfulness of this policy, focusing on legal questions and established principles rather than engaging in the broader political debate surrounding the policy.
The legal basis for the Rwanda policy lies in paragraphs 345A to 345D of the Immigration Rules, allowing the Home Secretary to treat an asylum claim as inadmissible if the claimant had the opportunity to seek asylum in a safe third country but did not do so. The claimant can then be removed to any safe third country that agrees to accept them, with the condition that the principle of “non-refoulement” is respected, ensuring asylum seekers are not returned to a country where their life or freedom would be threatened.
The UK and Rwandan governments entered into a Migration and Economic Development Partnership , MEDP, on April 13, 2022, with the Home Secretary deeming Rwanda a safe third country based on arrangements and assurances in the MEDP.
The challenge in court involves asylum seekers contesting the lawfulness of the Rwanda policy, asserting that there are substantial risks that asylum claims would not be properly determined by Rwandan authorities, leading to real risks of refoulement. The Court of Appeal, by a majority, held the Rwanda policy unlawful due to these concerns.
The case is complex, with the Supreme Court reviewing the legality of the policy and addressing specific legal grounds raised by the asylum seekers.
Judgment of the Court
The Supreme Court has unanimously dismissed the Home Secretary’s appeal, affirming the Court of Appeal’s decision that the Rwanda policy is unlawful. The ruling is based on the substantial grounds for believing that asylum seekers would face a real risk of ill-treatment through refoulement to their country of origin if they were removed to Rwanda. The joint judgment by Lord Reed and Lord Lloyd-Jones received agreement from all members of the Court.
Rationale for the Judgment
The Supreme Court’s judgment focusses primarily on the grounds of appeal concerning: (1) refoulement, and (2) retained EU law. Some of the asylum seekers were granted permission to cross-appeal on two other grounds, but given the Court’s conclusion on the refoulement ground, it is unnecessary for the Court to determine them [17], [106].
The case involves the first ground of appeal, focusing on the principle of non-refoulement, a fundamental concept in international law. Asylum seekers are safeguarded against refoulement, the forced return to a country where they face the risk of persecution or harm, by various international treaties, including the 1951 Refugee Convention and the European Convention on Human Rights (ECHR).
The UK has incorporated these protections into domestic law through the Human Rights Act 1998, which makes it unlawful for the Home Secretary to remove asylum seekers to countries where there are substantial grounds to believe they would face real risks of refoulement contrary to Article 3 of the ECHR. Additional safeguards are provided by the Asylum and Immigration Appeals Act 1993, the Nationality, Immigration and Asylum Act 2002, and the Asylum and Immigration ,Treatment of Claimants etc, Act 2004.
The Home Secretary’s appeal challenges the Court of Appeal’s decision on refoulement, raising three specific issues that will be examined in detail.
The first issue: It revolves around whether the Divisional Court applied the correct legal test when evaluating the risk of refoulement. The Supreme Court emphasizes that the correct legal test involves assessing whether there are substantial grounds to believe that the removal of asylum seekers to Rwanda would expose them to a real risk of ill treatment as a result of refoulement to another country.
The court must independently answer this question based on its evaluation of the evidence.
The Court acknowledges uncertainty in the Divisional Court’s judgment regarding the application of the correct legal test. However, it asserts that the Court of Appeal was entitled to consider the refoulement issue independently, even if the Divisional Court applied the correct legal test.
The second issue: addresses whether the Court of Appeal was justified in interfering with the Divisional Court’s conclusion on the risk of refoulement. The Supreme Court affirms that the Court of Appeal had the authority to intervene due to identified errors in the Divisional Court’s treatment of the evidence.
The court emphasizes that in cases like this, an examination of how the asylum system operates in the receiving state is crucial, taking into account deficiencies highlighted by expert bodies such as UNHCR. The court should evaluate assurances given by the receiving state’s government, considering factors such as human rights conditions, laws and practices, compliance history, and monitoring mechanisms.
The Divisional Court, according to the Supreme Court, failed to adopt this approach. It relied on assurances from the Rwandan government in the MEDP and neglected to engage with UNHCR’s evidence, despite UNHCR’s extensive experience in the Rwandan asylum system. The Court stresses that UNHCR’s evidence should have been given significant weight, considering its remit and practical experience.
The third issue examines whether the Court of Appeal was justified in concluding that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment due to refoulement if removed to Rwanda. The Supreme Court affirms that the Court of Appeal was entitled to reach this conclusion based on the following evidence:
1. Rwanda’s poor human rights record, with the UK government criticizing the country for extrajudicial killings, deaths in custody, enforced disappearances, and torture in 2021. Concerns about constraints on media and political freedom were also raised.
2. UNHCR’s evidence pointing to serious and systematic defects in Rwanda’s asylum procedures and institutions, including concerns about the asylum process itself, lack of legal representation, the risk of non-independent judicial decisions in politically sensitive cases, a relatively untested right of appeal, a high rejection rate of asylum claims from certain conflict zones, Rwanda’s ongoing practice of refoulement, and the Rwandan government’s apparent inadequate understanding of the Refugee Convention.
3. Rwanda’s failure to comply with an explicit undertaking to adhere to the non-refoulement principle in an agreement with Israel for the removal of asylum seekers from Israel to Rwanda between 2013 and 2018.
The Supreme Court acknowledges that Rwanda entered into the MEDP in good faith and has incentives to adhere to it, with monitoring arrangements providing additional safeguards. However, the evidence indicates substantial grounds for believing that there is a real risk asylum claims will not be properly determined, exposing asylum seekers to the risk of return to their country of origin.
The necessary changes and capacity-building to eliminate this risk may occur in the future, but their implementation was not demonstrated at the time the Rwanda policy’s lawfulness was considered in these proceedings.
In this ground, the Supreme Court addresses the cross-appeal brought by ASM (Iraq) arguing that the Rwanda policy is incompatible with retained EU law. The court dismisses the cross-appeal on the grounds that Articles 25 and 27 of the Procedures Directive, which require a connection to a third country for asylum seekers to be removed there, no longer have effect in UK domestic law as retained EU law.
The court explains that these articles fell within the scope of paragraph 6(1) of Schedule 1 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, causing them to cease effect in domestic law at the end of the transition period on December 31, 2020.
The court rejects arguments about reading references in the Act to “immigration” differently and notes that the principle of legality does not apply, as the relevant protection in articles 25 and 27(2)(a) of the Procedures Directive does not pertain to a fundamental or constitutional right.
Square bracket references refer to specific paragraphs within the ruling.
Observation:
The purpose of this summary is to help you comprehend the Court’s ruling. It is not included in the justifications for the choice. The only legally binding document is the Court’s entire ruling. Public judgments are accessible at the following location: Cases decided by the Supreme Court.
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