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Supreme Court rules that government’s Rwanda policy is unlawful

By Bianca Castro >>

(15 November 2023)

The Supreme Court today unanimously found the government’s plan for sending asylum seekers to Rwanda to be unlawful.

Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Briggs and Lord Sales upheld the Court of Appeal’s conclusion that there were ‘substantial grounds’ for believing deportees would face a ‘real risk’ of ill-treatment contrary to their human rights.

The case centred on claims brought by individuals who travelled to the UK in small boats and, in one case, a lorry, and applied for asylum. The former home secretary Suella Braverman said the claims were inadmissible and the individuals should be removed from the UK for processing by Rwandan authorities in accordance with the migration and economic development partnership between the two countries.

Rwanda is the only country with which the UK has a transfer agreement.

The asylum seekers challenged the lawfulness of the Rwanda policy and the decision to remove them. The divisional court said the Rwanda policy was lawful in principle, but the way the home secretary implemented the policy in the individual cases before the court was procedurally flawed.

The court quashed her decision in those cases and remitted them to her for reconsideration. The claimants filed claims to the Court of Appeal challenging the lower court’s decision on the policy’s lawfulness.

Appeal judges allowed the appeal by a majority. The court found the Rwandan asylum system created a ‘real risk of refoulement’, meaning those sent to Rwanda were at risk of being returned to their home countries where they faced treatment contrary to article 3 of the European Convention on Human Rights.

The Supreme Court’s decision focused primarily on refoulment and retained EU law. Though the asylum seekers, who cannot be identified, were granted permission to cross-appeal, the court did not make a determination on those grounds following its conclusions on the refoulment ground. One of the claimant’s cross-appeals was dismissed.

Today’s 56-page judgment in AAA and Ors v Secretary of State for the Home Department found the CoA was entitled to interfere with the divisional court’s conclusion which ‘erred in its treatment of the evidence bearing on the risk of refoulement, essentially by failing to engage with the evidence of UNHCR concerning problems affecting the processing of asylum claims in Rwanda’.

It added: ‘In fairness to the Divisional Court, we should point out that it had to deal with a greater number and range of issues than either the Court of Appeal or this court, and that it produced its judgment at commendable speed, reflecting the public importance of the questions raised. Inevitably, this appeal has focused on the issue on which the Divisional Court is alleged to have erred, rather than on the many more issues on which its decision is unchallenged.’

Considering Rwanda’s ‘strong reputational incentive to ensure the [development partnership] is adhered to’ and its history with asylum cases, Lord Reed and Lord Lloyd-Jones, with whom Lord Hodge, Lord Briggs and Lord Sales agreed, said there was ‘evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention’.

The judgment said Rwanda had ‘little or no experience’ of considering asylum applications from most of the countries from which asylum claimants in the UK commonly come, such as Albania, Iran, Iraq, Pakistan, Syria and Vietnam.

It added: ‘The evidence also goes some way to support the suggestion of a dismissive attitude towards asylum seekers from the Middle East and Afghanistan. It is also apparent…that significant changes need to be made to Rwanda’s asylum procedures, as they operate in practice, before there can be confidence that it will deal with asylum seekers sent to it by the United Kingdom in accordance with the principle of non-refoulement.

‘The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring. Genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all.’

The judgment noted that the right of appeal to the High Court in Rwanda ’is completely untested, and there are grounds for concern as to its likely effectiveness’. 

While accepting the government’s submission that the capacity of the Rwandan system ’can and will be built up’, the judges said they needed to consider whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time.  ‘The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.’

(Courtesy: The Law Society Gazette)