Friday 30 June 2023

The Court of Appeal (R (on the application of AAA and others) v SSHD (UNHCR intervening) and other cases [2023] EWCA Civ 745) has ruled that Rwanda’s refugee determination system is not sufficiently safe for asylum seekers to the UK to be deported there. The Court of Appeal however did not find that the process itself of removing asylum seekers to a third country was unlawful.

Background

In September and October 2022 some individuals notified of their removal to Rwanda brought legal challenges to the High Court and though ultimately the challenges were refused by the High Court, the European Court of Human Rights granted an urgent interim injunction (on 14 June 2022) against the deportation to Rwanda in the case of NSK v UK and the UN High Commissioner for Refugees intervened in the case of AAA v SSHD.

Given the case of AAA v SSHD dealt with the law and Home Office policy prior to the publishing of the Safe Country Removal provisions (of the Nationality & Borders Act 2022) and the procedural fairness findings by the High Court, it was no surprise that the High Court’s decision was appealed.

The Court of Appeal’s recent decision

The Court of Appeal heard the case of R (on the application of AAA and others) which ostensibly put that the Rwandan asylum system was not capable of delivering reliable outcomes. The appellants believed that UK’s Rwanda deportation policy was unlawful because there was a real risk that any individual deported from the UK to Rwanda would then be removed to their home country when they had a good claim for asylum, thus breaching Article 3 ECHR rights and therefore making Rwanda not a ‘safe third country’.

By a majority the Court of Appeal (Sir Geoffery Vos and Lord Justice Underhill, with Lord Burnett CJ dissenting) ruled that there a ‘substantial grounds for believing that there is a real risk that persons sent to Rwanda will be returned to their home countries where they faced persecution or other inhumane treatment, when, in fact, they have a good claim for asylum’ and that the evidence put before the High Court was ‘inadequate’ therefore finding that Rwanda was not a ‘safe third country’.

Amidst a backdrop of widespread criticism of the Illegal Migration Bill, this ruling, alongside the House of Lords opposition at the latest report stage this week, highlights how immigration is at the heart of the political battleground in the UK.

The judgment summary is here for your review.