Joelle Grogan analyses the decision of the Court of Appeal that the UK government’s policy to send certain asylum seekers to Rwanda to have their claims considered is unlawful. She unpacks the Court’s reasoning and highlights the implications for the Illegal Migration Bill.
By a majority of two to one, the Court of Appeal has ruled that the government’s Rwanda policy is unlawful.
The case concerned ten asylum-seekers from Syria, Iraq, Iran, Vietnam, Sudan and Albania. They challenged the decision of the UK government to remove them to Rwanda where their asylum claims would be considered (under Rwandan law), instead of having their claim considered in the UK.
The asylum-seekers argued that their claims would not be properly and fairly determined in Rwanda, and there was a real risk of refoulement (or that they would be forcibly returned to their home country to face persecution even when they had good claim to asylum).
They also argued that sending them to Rwanda would breach human rights protections, and in particular the prohibition against torture and inhuman or degrading treatment (Article 3 European Convention on Human Rights [ECHR]). Simply put, they argued that Rwanda was, and is not, a ‘safe third country’.
Reflecting international concern about UK refugee policy, the United Nations High Commissioner for Refugees intervened; their evidence supported the asylum-seekers’ case.
In December 2022, the High Court had dismissed the challenge to the UK government’s Rwanda policy. However, the High Court had also overturned the decisions in each individual case, finding that the Home Office had (among other failings) not allowed the asylum seekers to argue about the safety of Rwanda, nor given sufficient access to legal advice; and had given them only seven days to argue their case, and then only five days to apply to the court.
The appeal to the Court of Appeal, however, turned on whether Rwanda was a ‘safe third country’. The majority found that it is not. While the Court accepted that assurances given by the Rwandan government were ‘in good faith’ and intended to address defects in its asylum processes, it nevertheless found that Rwanda’s system for deciding asylum claims was ‘inadequate’, one source of concern being the 100% rejection rate of Afghans, Yemenis and Syrians by the Rwandan authorities.
The majority criticised the Home Secretary’s ‘uncritical acceptance’ of assurances even where the country is a ‘one-party state which reacts unfavourably to dissent’. Despite assurances, necessary changes had not (yet) been made. Because of this, sending asylum-seekers to Rwanda would breach human rights protections under UK law.
One judge, Lord Chief Justice Burnett, came to the opposite conclusion: the assurances given by the Rwandan government were sufficient to ensure there was ‘no real risk’ that asylum seekers would be wrongly returned to countries where they would face persecution. The judge relied on the fact that Rwanda has no agreements in place with any of the countries in question (i.e. Syria, Iraq etc), so couldn’t return them if the country was unwilling to accept them. It should be noted, however, that they could, however, be returned if the country agreed to accept them.
However, the majority of the Court ruled that there were substantial grounds for thinking that Rwanda was not a safe third country, there were real risks of refoulement or Article 3 breaches, and that asylum claims would not be properly determined. Unless and until the deficiencies in asylum processes in Rwanda are corrected, removal of asylum-seekers to Rwanda is unlawful.
The Court reiterated that the judgment was not a view on the political merits of the case – that was a matter for government – but its only concern was whether the policy complied with the law as laid down by Parliament.
The Court did not find that removing asylum seekers to a safe third country was unlawful in principle, or that doing so would be incompatible with the Refugee Convention. The Court also dismissed the argument under retained EU law that asylum-seekers could only be removed to a safe third country where they have a connection, ruling that this protection ceased to be part of UK law as a result of legal reform following withdrawal.
But, what does this mean for Illegal Migration Bill if, or more likely when, it becomes law? A cornerstone of the Bill is the legal duty on the Home Secretary to detain and remove any person who has arrived through irregular routes either to their home country (where it is deemed safe) or a safe third country.
While the Bill identifies 57 countries as ‘safe third countries’, the UK has no arrangements in place that would enable the transfer of asylum-seekers to them in practice. Rwanda was the only country where an agreement has been reached, and that policy is now held to be unlawful.
However, the Court highlighted that the current law allows government – so long as it has Parliamentary approval – to designate particular countries as ‘safe’. The government had not done so for Rwanda in this case. If the Illegal Migration Bill is passed, including the schedule listing Rwanda as ‘safe’ – there is an argument that Parliament will then have approved Rwanda as a ‘safe third country’.
Beyond this, there is little doubt that this judgment will fuel arguments among some Conservative MPs for leaving the ECHR entirely. Responding to the judgment, Suella Braverman reiterated her commitment to the Rwanda policy, while Rishi Sunak said the government will now seek permission to appeal the decision to the Supreme Court, which is likely to be granted since the Court of Appeal was not unanimous.
Until a final legal determination – no flights to Rwanda will take place. Where Rwanda is not a safe third country under the law, any removal is unlawful.
By Dr Joelle Grogan, Senior Researcher, UK in a Changing Europe.