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Supreme Court Rwanda Judgment: Government's Rwanda Policy Is Unlawful

In a unanimous decision by Lord Reed and Lord Lloyd-Jones, with whom Lord Hodge, Lord Briggs and Lord Sales agreed, the Supreme Court has declared the government’s Rwanda policy unlawful. In this post, I review the Supreme Court’s Rwanda Judgment, offering insights into the legal intricacies surrounding the government’s now-unlawful policy of removing asylum seekers to Rwanda.

Supreme Court Rwanda Judgment

It its judgment in AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023), the Supreme Court held that the Court of Appeal was correct to reverse the decision of the Divisional Court and was entitled to find that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement. For that reason, the Rwanda policy was held to be unlawful and the Secretary of State’s appeal was dismissed.

The cross-appeal by one of the appellants, regarding whether provisions of EU law that prevent the removal of asylum seekers to a safe third country with which they have no connection have been retained in domestic law, was also dismissed.

Analysis of the Appeal to the Supreme Court in the Rwanda Case

Was the Court of Appeal correct to interfere with the decision of the Divisional Court? Yes

The first question that the Supreme Court was required to consider was whether the Court of Appeal had lawfully interfered with the Divisional Court’s decision as part of the former’s appellate jurisdiction. This question, in turn, required consideration of two issues:

  • Whether the Divisional Court had applied the correct test; and
  • If so, whether the Court of Appeal was otherwise entitled to interfere with its conclusion.

Did the Divisional Court apply the correct test? Unclear, but immaterial

The Supreme Court in the Rwanda Case confirmed that the correct approach, set out in Soering, was for the Divisional Court to assess for itself whether there were substantial grounds for believing that asylum seekers sent to Rwanda would be at a real risk of refoulement. Had the Divisional Court instead merely reviewed the reasonableness of the Secretary of State’s assessment, it would have applied the wrong test.

The Supreme Court recognised that the wording of several passages in the Divisional Court’s judgment suggest that it had misunderstood its function, by asking itself whether the Secretary of State’s conclusion on the risk of refoulement was tenable. In a different passage, the Supreme Court noted that the Divisional Court had recognised that it had to carry out the necessary assessment itself. As such, the Supreme Court held it was not easy to determine which test the Divisional Court had applied.

Nonetheless, it was not necessary to reach a view on this matter. The Supreme Court held that the Court of Appeal was entitled in any event to to interfere with the Divisional Court’s conclusion and to consider the question for itself. The reason was that the Divisional Court had erred in its treatment of the evidence that was relevant to the risk of refoulement, by failing to engage with the UNHCR’s evidence before it.

Was the Court of Appeal entitled to interfere with the Divisional Court’s decision? Yes, because the latter had erred in its approach to the evidence

Strasbourg jurisprudence confirms that deficiencies identified by bodies such as UNHCR are relevant to the assessment of how the asylum system in the receiving state operates in practice. In turn, this is relevant to the question whether there are adequate procedures in place in that state to avert the risk of refoulement to asylum seekers removed there for their asylum claims to be determined. State assurances are also relevant, but not in themselves sufficient to ensure adequate protection; a fact-sensitive assessment of how assurances will operate in practice, in the circumstances prevailing at the material time, remains necessary.

In its Rwanda Judgment, the Supreme Court held that the Divisional Court did not follow this approach in considering the evidence. Instead, the Divisional Court wrongly:

  • Stated it could only go behind the government’s opinion if there were compelling evidence to the contrary; and
  • Considered that the evidence of the UNHCR carried no special weight.

There was no requirement for there to be compelling evidence in order for the Court to reach a different conclusion to that of the government regarding whether Rwanda’s assurances provided an adequate safeguard to the risk of refoulement. The Court ought to have considered for itself how the assurances would operate in practice and, in that context, the UNHCR’s evidence of the past and present circumstances in Rwanda was of particular importance. The Divisional Court therefore erred in its approach to the evidence and the Court of Appeal was entitled to interfere with its decision.

Was the Court of Appeal entitled to conclude that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement following removal to Rwanda? Yes

In its Rwanda Judgment, the Supreme Court’s conclusion on this issue was affirmative, in view of the evidence on:

  • The general human rights situation in Rwanda;
  • The adequacy of Rwanda’s asylum system; and
  • The Israel/Rwanda previous arrangements.

The Secretary of State argued that the current inadequacies in Rwanda’s asylum system and its past history of refoulement and failure to comply with its assurances were not determinative and that the current assurances provided an adequate safeguard.

The Supreme Court acknowledged that a consideration of risk involves prediction, but such predictive assessment is based on past and present circumstances, as well as future promises. It held that there was no doubt that Rwanda had entered the relevant agreements in good faith. Nonetheless, the evidence demonstrated its practical inability to fulfil its assurances. 

It was concluded that, as matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.


Other issues arising in relation to article 3 ECHR

The Supreme Court in the Rwanda Case held that, in view of its conclusion on the issue of refoulement, it was not necessary to consider whether there was a risk of ill-treatment to asylum seekers in Rwanda in view of the reception conditions there, or whether the Secretary of State had failed to consider the risk of refoulement with the required degree of care.

Retained EU law

The Supreme Court was also required to consider whether the Procedures Directive remained in force in UK domestic law, as “retained EU law”. If so, then the Rwanda policy would be unlawful in principle, as it would entail the removal of asylum seekers to a country to which they have no connection, which is not permitted by articles 25 and 27 of the Procedures Directive. The incompatibility of the Rwanda policy with those provisions of the Procedures Directive was common ground. The only matter in dispute was whether the Procedures Directive had been repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.

The Supreme Court held that the 2020 Act had repealed the Procedures Directive. In concluding this, it rejected the argument that references to “immigration” in the Act do not include matters relating to asylum. The extraneous aids to interpretation do not cast doubt on the meaning of the statute. The principle of legality, requiring a statute which interferes with a fundamental or constitutional right to have clear and unambiguous wording, is not applicable. The relevant provisions of the Procedures Directive involve an important protection, but not a fundamental or constitutional right and therefore the normal canons of statutory construction apply. In any event, the Supreme Court held that Parliament’s intention had been unambiguously expressed in the 2020 Act.

A previous Supreme Court judgment, in which the Procedures Directive was considered retained EU law, was held to have proceeded on the basis of a concession and without full argument on whether in fact the Directive was extant in domestic law. Having heard full argument, the Supreme Court in this case concluded that the effect of the 2020 Act is that articles 25 and 27 of the Procedures Directive do not have effect in the domestic law of the United Kingdom as retained EU law. 

Commentary on the Supreme Court Rwanda Judgment

As set out in my previous article following the Court of Appeal’s judgment, the Supreme Court’s Rwanda Judgment does not rule out the possibility that the Rwanda scheme could become lawful in the future, through structural changes and capacity-building needed to eliminate the risk of refoulement. The possibility of the lawfulness of a different scheme, where asylum seekers are sent to a different third country to have their asylum claims determined, is also not ruled out in principle. The provisions of EU law that prevented this are no longer directly effective in domestic law and have been repealed.

Nonetheless, it is highly unlikely that the required changes can be delivered anytime soon, let alone prior to the next elections. It would also require additional, significant costs for training, monitoring and infrastructure. This demonstrates that the Rwanda scheme was a misguided, problematic, and ultimately fruitless endeavour by the government, which involved an inordinate amount of resources and funds. 

Of course, this will inevitably be spun as a consequence of judicial interference and of the UK’s international obligations. This was already pre-empted by the former Home Secretary’s letter to the Prime Minister, on Tuesday 14 November, in which she referred to blocking off the ECHR, if not leaving it altogether, along with other obligations which “inhibit our ability to remove those with no right to be in the UK” and to the lack of a “Plan B” in the event of the government’s defeat in the Supreme Court. 

The issues with this rhetoric are obvious: the ECHR has never inhibited the UK or any contracting state’s ability to remove those with no right to be in their territory. There is no obligation with such an effect. The ECHR prohibits the removal of persons from the UK only insofar as that would entail placing them at risk of serious harm. This includes asylum seekers removed to a third country for determining their asylum claims, where that country’s asylum procedures are flawed to the extent that genuine refugees will be at risk of being returned to their country of nationality, where they would face persecution. This is a fundamental, human right that, by definition, all people should enjoy and which was recognised and agreed between contracting states following the terrors of the Second World War. The courts can only interfere with policies when they are incompatible with such a right.

Reference to a Plan B is equally flawed. The plan should have always been the allocation of appropriate resources to ensure that asylum claims in the UK are processed in a timely manner and establishing safe routes for those seeking protection. Broadly, the UK’s asylum processing system does not suffer from systemic deficiencies and there are adequate safeguards, as opposed to that of Rwanda. However, backlogs have caused significant delays in determining asylum claims in the UK, often for several years. Had the government allocated the same time and resources to alleviating those backlogs and to ensuring a fair and prompt determination of asylum claims in the UK as it did for the Rwanda scheme, it would have reached an effective outcome whilst being compliant with the UK’s international obligations. Its complete failure to do so is attributable only to itself.

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