Home Secretary's appeal fails in Rwanda asylum cases
The Rwanda Government cannot be relied on to comply with international law principles in implementing its agreement to receive asylum seekers from the UK, the Supreme Court has ruled today
Five senior Justices of the court (Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Briggs and Lord Sales) unanimously refused the Home Secretary's appeal from the Court of Appeal's decision, reversing the Divisional Court, that Rwanda was not a safe third country to which asylum seekers could be sent, because they would face a real risk of "refoulement", or being returned from there to a country where their life or freedom was threatened.
Before the court, the Home Secretary argued that she was entitled to rely on undertakings in the memorandum of understanding concluded with the Rwandan Government: although not legally binding, Rwanda could be relied on to comply with these and it was therefore a safe third country.
In a joint judgment with which the other Justices agreed, Lord Reed and Lord Lloyd-Jones focused on non-refoulement, "a core principle of international law". Asylum seekers were protected against refoulement by several international treaties ratified by the UK, and by corresponding provisions in domestic law.
The Home Secretary’s appeal on refoulement raised three issues, the first being the correct legal test to be applied by the court. This was whether there were substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill treatment as a result of refoulement to another country. The court had to answer this question for itself, based on its assessment of the evidence before it. It was unclear from the Divisional Court’s judgment whether it applied the correct test, but the court was satisfied that the Court of Appeal was in any event entitled to consider the issue for itself.
That was because there were errors in the Divisional Court’s treatment of the evidence (the second issue). European and domestic case law was clear that, in cases like the present, the court was required to consider how the asylum system in the receiving state, in this case Rwanda, operated in practice. In doing so, the court should have regard to deficiencies identified by expert bodies such as UNHCR. Where safety in the receiving state depended on assurances given by its government about the treatment of individuals who were sent there, the court was required to carry out a fact-sensitive evaluation of how the assurances would operate.
The Divisional Court did not follow this approach, holding that the Home Secretary was entitled to rely on the assurances given by the Rwandan Government. It failed to engage with UNHCR’s evidence, which should have been given particular weight given its remit and unrivalled practical experience of working in the Rwandan asylum system.
On the third issue, the Court of Appeal was entitled to conclude that there were substantial grounds for believing that asylum seekers would face a real risk of ill treatment by reason of refoulement following their removal to Rwanda. This was on the basis of (1) Rwanda's poor human rights record (previously a matter of concern to the UK Government); (2) evidence of serious and systematic defects in Rwanda’s procedures and institutions for processing asylum claims, including the asylum process itself where there was a lack of legal representation and a risk that judges and lawyers would not act independently of the Government, the surprisingly high rate of rejection of asylum claims from certain countries in known conflict zones, Rwanda’s continuing practice of refoulement, and the apparent inadequacy of the Rwandan Government’s understanding of the requirements of the Refugee Convention; and (3) Rwanda's recent failure to comply with an explicit undertaking to comply with the non-refoulement principle given to Israel in a similar agreement concerning asylum seekers from Israel.
The Supreme Court accepted that the Rwandan Government entered into the UK agreement in good faith and had incentives to ensure that it was adhered to, and that monitoring arrangements were provided for. Nevertheless, the evidence showed there were substantial grounds for believing that there was a real risk that asylum claims would not be determined properly, and asylum seekers would therefore be at risk of being returned directly or indirectly to their country of origin. The changes and capacity-building needed to eliminate that risk might be delivered in the future, but they were not shown to be in place when the lawfulness of the Rwanda policy had to be considered in these proceedings.
The court dismissed a cross-appeal brought by one claimant on the ground that the Rwanda policy was unlawful because it was incompatible with retained EU law: articles 25 and 27 of the Procedures Directive, relied on, no longer had effect in UK domestic law because they fell within the scope of para 6(1) of sched 1 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, and ceased to have effect when the transition period came to an end on 31 December 2020.
Opening its judgment, the court emphasises that it was deciding a legal question on the basis of evidence and established legal principles, and was not concerned with the political debate surrounding the policy. It also observed that the UK's international obligations relevant to the case were not merely those in the European Convention on Human Rights, but also the UN Refugee Convention and other treaties to which it was a party; these too were reflected in domestic law.