Supreme Court of United Kingdom: The instant appeals were concerned with UK Home Secretary’s policy that certain people claiming asylum in the United Kingdom should not have their claims considered in the UK but should instead be sent to Rwanda in order to claim asylum there. Their claims will then be decided by the Rwandan authorities, with the result that if their claims are successful, they will be granted asylum in Rwanda. The Bench of Lord Reed (President)*, Lord Hodge (Deputy President), Lord Lloyd-Jones*, Lord Briggs and Lord Sales were required to decide whether the Rwanda Policy is lawful.
Not getting concerned with the political debate surrounding the policy, the Court unanimously dismissed the Home Secretary’s appeal, and upheld the Court of Appeal’s conclusion that the Rwanda policy is unlawful as there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda.
Background: The matter originated from the claims brought by individual asylum seekers (“the claimants”) who travelled to the UK. The Home Secretary declared the claimants’ claims for asylum to be inadmissible, intending that they should be removed to Rwanda where their asylum claims would be decided by the Rwandan authorities in accordance with the Migration and Economic Development Partnership (“MEDP”) between the UK and Rwanda (Rwanda Policy).
Paragraphs 345A to 345D of the Immigration Rules, made in accordance with Section 3 of the Immigration Act, 1971 permit the Home Secretary to treat an asylum claim as inadmissible if the claimant had the opportunity to apply for asylum in a safe third country but did not do so. The claimant can then be removed from the UK to any safe third country which agrees to accept them. Under paragraph 345B, a country will only qualify as a safe third country if the principle of “non-refoulement” is respected there. This principle requires that asylum seekers are not returned, directly or indirectly, to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion, or they would be at real risk of torture or inhuman or degrading treatment.
Legal Trajectory: The claimants challenged both the lawfulness of the Rwanda Policy and the Home Secretary’s decisions to remove each particular claimant to Rwanda. The United Nations High Commissioner for Refugees (“UNHCR”) intervened in the proceedings. The Divisional Court held that the Rwanda policy was, in principle, lawful; however, the way in which the Home Secretary had implemented the policy in the claimants’ individual cases was procedurally flawed. The decisions in those cases were consequently quashed and remitted to the Home Secretary for reconsideration.
The question of lawfulness of the Rwanda Policy reached the Court of Appeal. By a majority, the Court of Appeal held that the Rwanda policy was unlawful. Accordingly, unless and until the deficiencies in the Rwandan asylum system were corrected, any removal of asylum seekers to Rwanda under the MEDP would breach Section 6 of the Human Rights Act, 1998.
The Home Secretary thus appealed to the Supreme Court against the Court of Appeal’s decision on the refoulement ground.
Court’s Assessment: While considering the appeal, the Supreme Court primarily focussed on the grounds concerning refoulement and retained European Union law.
The Court noted that non-refoulement is a core principle of international law. Asylum seekers are protected against refoulement by several international treaties ratified by the UK. These protections are set out in Article 33(1) of the United Nations 1951 Convention relating to the Status of Refugees and its 1967 Protocol and Article 3 of the European Convention on Human Rights. It was further noted that asylum seekers are protected against refoulement by the S. 6 of Human Rights Act 1998, which makes it unlawful for the Home Secretary to remove asylum seekers to countries where there are substantial grounds to believe that they would be at real risk of refoulement contrary to Article 3 ECHR. Further protection is provided by provisions in the Asylum and Immigration Appeals Act 1993, the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants etc) Act 2004, under which Parliament has given effect to the Refugee Convention as well as the ECHR.
The Court stated that the European and UK case laws are clear that, in cases like this one, the Court is required to consider how the asylum system in the receiving state, operates in practice. In doing so, the court should have regard to deficiencies identified by expert bodies such as UNHCR. The court is required to carry out a fact-sensitive evaluation of how the assurances will operate. Relevant factors include the general human rights situation in the receiving state, the receiving state’s laws and practices, its record in complying with similar assurances given in the past and the existence of monitoring mechanisms.
The Supreme Court pointed out that the Divisional Court did not follow the afore-stated approach and it held that the Home Secretary was entitled to rely on the assurances given by the Rwandan government in the MEDP and failed to engage with UNHCR’s evidence. UNHCR’s evidence should have been given particular weight given its remit and unrivalled practical experience of working in the Rwandan asylum system.
The Court pointed out that Court of Appeal’s conclusion as to Rwanda Policy’s unlawfulness was based on relevant evidences such as —
In 2021, the UK government criticised Rwanda for “extrajudicial killings, deaths in custody, enforced disappearances and torture”. UK government officials have also raised concerns about constraints on media and political freedom.
UNHCR’s evidence regarding serious and systematic defects in Rwanda’s procedures and institutions for processing asylum claims.
Rwanda had recently failed to comply with an explicit undertaking to comply with the non-refoulement principle given to Israel in an agreement for the removal of asylum seekers from Israel to Rwanda which operated between 2013 and 2018.
The Court stated that, “There is no dispute that the government of Rwanda entered into the MEDP in good faith. We accept that Rwanda has a strong reputational incentive to ensure that the MEDP is adhered to (…) Nevertheless, intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice”. The Court further stated that the central issue in the present case is therefore not the good faith of the government of Rwanda at the political level, but its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement and the scale of the changes in procedure, understanding and culture which are required.
Vis-à-vis retained EU law, the Court dismissed the cross-appeal brought by ASM (Iraq) on the ground that the Rwanda policy is unlawful because it is incompatible with retained EU law. It was pointed out that Articles 25 and 27 of the Procedures Directive which contain a requirement that asylum seekers may only be removed to a third country, if they have a connection to it, have no longer any effect in UK domestic law as retained EU law because they fall within the scope of Paragraph 6(1) of Schedule 1 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. Accordingly, these Articles ceased to have effect in the domestic law of the United Kingdom when the transition period came to an end on 31-12-2020.
With the afore-stated assessment, the Court concluded that Court of Appeal was correct in reversing the 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.
[R v. Secretary of State for the Home Department, 2023 UKSC 42, decided on 15-11-2023]
*Joint Judgment by Lord Reed (President) and Lord Lloyd-Jones