Thursday 16 November 2023

Yesterday morning, the UK Supreme Court handed down its unanimous judgment that the UK government’s Rwanda asylum policy is unlawful. The landmark judgment in this case marks a critical moment in UK asylum law and policy.

Background

Following the Memorandum of Understanding (MoU) for the provision of an “asylum partnership arrangement” between the UK and Rwanda, the UK government has attempted to remove asylum seekers to Rwanda without success. Described as the “biggest overhaul of our immigration system in decades” by former Secretary of State for the Home Department (SSHD) Priti Patel, the policy marked a stark change in the UK’s approach to the UK’s asylum system.

The Rwanda scheme formed a crucial part of the government’s plan to tackle the ongoing asylum backlog. It has the effect of enabling the UK to remove asylum seekers to a safe third country, where their claim is deemed inadmissible for consideration by the UK. Rwanda was considered a safe third country for this purpose.

It would mean that these asylum seekers would be removed to Rwanda to have their claims assessed and decided by the Rwandan government. If successful, asylum seekers would be granted refugee status in Rwanda, and the government could expel unsuccessful asylum seekers from their territory.

Priti Patel initiated the policy to remove the first flight of asylum seekers to Rwanda. Through legal and administrative proceedings, the government removed most individuals from the flight. In the final moments before departure on 14 June 2022, the European Court of Human Rights (ECtHR) issued an interim measure preventing the removal of these individuals under Rule 39 of the Rules of Court. Litigation commenced from this point, with concurrent cases from various respondents against the SSHD.

On 19 December 2022, the High Court ruled in favour of the Rwanda policy, finding it consistent with international and domestic legal requirements. However, the Court also found that the individual decisions issued by the SSHD were inadequate, and procedural mistakes were made.

The Court of Appeal considered the challenges to the lawfulness of the Rwanda policy. The Court of Appeal allowed the appeal and ruled on 30 June 2023 that Rwanda was not a safe country. In particular, it determined that the deficiencies in Rwanda’s refugee determination system meant concerns about a real risk of refoulement – the risk that an individual with a genuine claim for refugee status is returned to a country where their life is threatened. However, the Court did not find that the process itself of removing asylum seekers to a third country was unlawful. The case then proceeded to the Supreme Court.

Supreme Court case

In an appeal of the Court of Appeal judgment, the SSHD challenged the tests for determining the legality of the Rwanda policy. The case had five respondents, nationals of Syria, Iran and Iraq, who were flagged initially for removal on the June 2022 flight to Rwanda, challenging the lawfulness of the Rwanda policy and the SSHD’s decisions for their removal to Rwanda. The United Nations High Commissioner for Refugees (UNHCR) was granted permission to intervene in the appeal.

Oral arguments were heard from 9 to 11 October 2023 before Justices Lord Reed (President), Lord Hodge (Deputy President), Lord Lloyd-Jones, Lord Briggs and Lord Sales. The judgment was not expected for several months, but the Court expedited judgment on this case due to the time-sensitive and pressing nature of the legal questions at hand.

The judgment

Lord Reed, President of the Supreme Court, announced the judgment and explained that the approach taken was strictly legal rather than involved in the national political debate.

One of the primary questions at hand was the issue of non-refoulement, ie that asylum seekers must not be returned to their country of origin directly or indirectly if their life is threatened. This crucial legal principle is laid out in the Refugee Convention, European Convention on Human Rights and other international treaties to which the UK is a party. In addition to the Human Rights Act 1998, these international treaties are further incorporated into domestic law, including the Asylum and Immigration Appeals Act 1993, Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

The Court agreed that asylum seekers could potentially be removed to a safe country if the principle of non-refoulement is established in that country. The government argued that there were no substantial grounds that those sent to Rwanda would be at risk of refoulement, as the MoU included an agreement that asylum seekers would not be subject to such removal. However, the UNHCR produced evidence of a number of deficiencies with the Rwanda asylum system since the conclusion of the MoU, including a 100% refusal rate of asylum seekers from countries such as Syria and Rwanda’s failure to comply with a similar agreement with the Israeli government.

Lord Reed explained that the High Court failed to consider UNHCR evidence properly. As such, the Court of Appeal was correct to overturn the High Court decision and reconsider the evidence itself. Whilst Lord Reed expressed that the Court understood that the UK and Rwandan governments entered into the MoU in good faith, changes were needed to eliminate the risk of refoulement.

The Supreme Court unanimously dismissed the SSHD’s appeal.

Future implications

The Supreme Court judgment brings the Rwanda policy, in its current form, to an end. This is not, however, the end of the matter. Prime Minister Rishi Sunak has announced introducing “emergency legislation” which would confirm Rwanda as a safe country under UK law. This marks an unprecedented step which would undoubtedly face legal challenges, given the concerns raised and acknowledged by the Supreme Court.

The government may also seek to review the nature and terms of its partnership with Rwanda, particularly in addressing the concerns of non-refoulement. There have been suggestions by some politicians that such a review may now take place. The government could additionally work on forging partnerships with other countries with a view to negotiating ‘safe country’ removal deals.

Whilst many shall celebrate the outcome of today’s judgment as one which upholds longstanding principles of international law, any relief or comfort it has brought may be short-lived. Whilst we do not know how things will play out with the introduction of legislation and further legal challenges, we do know that this is not the final word on the Rwanda policy.

Get in touch

To learn more about forthcoming changes to UK immigration law, see our website, contact your assigned LDI lawyer or email enquiries@lauradevine.com.