A conclusion to the Rwanda litigation?

Public and Administrative Law blog 1

Yesterday the Supreme Court handed down its judgment in the much-anticipated Rwanda litigation in AAA and ors v SSHD [2023] UKSC 42. The Court unanimously dismissed the government’s appeal, upholding the Court of Appeal’s conclusion that the government’s Rwanda policy is unlawful.

The thrust of the Court’s reasoning was that if the government’s plans were allowed to proceed, there would be substantial grounds to believe that that asylum seekers sent to Rwanda by the UK government would face a real risk of refoulement. Refoulement refers to the forcible return of refugees to their countries of origin, where they could be persecuted. Non-refoulement is a core principle of international law. Therefore, to allow for a policy to operate where there is a real risk of refoulement occurring would violate several international treaty obligations to which the UK is subject.

A second ground of cross-appeal was argued by Landmark’s Richard Drabble KC acting for ASM (Iraq), submitting that the government’s Rwanda policy was unlawful in that it is incompatible with retained EU law. However, this was dismissed by the Supreme Court on the grounds that the relevant provisions had ceased to be part of UK law since the passage of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.

The background to the appeal

Since the introduction of the government’s Rwanda policy in April 2022, no flights carrying asylum seekers to Rwanda have taken off following several legal challenges.

After an initial High Court ruling in December 2022 that declared the Rwanda policy lawful, but procedurally flawed in its implementation, the claimants appealed to the Court of Appeal on the question of the Rwanda policy’s legality in June 2023.

The Court of Appeal held that the Rwanda plan was unlawful as there were substantial grounds for believing that there were real risks to asylum seekers in Rwanda and that asylum claims would not be properly determined by the Rwandan authorities. The Home Secretary subsequently appealed to the Supreme Court in a final attempt to proceed with the Rwanda policy.

The question of refoulement

Lord Reed emphasised that the Home Secretary’s Rwanda policy bears the risk of refoulement because it involves the applications of persons claiming asylum in the UK being processed by the Rwandan authorities. It is Rwanda, therefore, that is entitled to offer them asylum or expel them from their territory. This is where the risk of refoulement arises: should Rwanda decide to expel the asylum seeker without proper consideration of their claims, they risk being returned to their country of origin and therefore refouled.

The Supreme Court examined the evidence on the question of this risk, including the non-binding Migration and Economic Development Partnership (“MEDP”) between Rwanda and the UK entered into on the 13th April 2022. Within the MEDP, Rwanda undertakes that it will treat each asylum seeker and process their application in accordance with the Refugee Convention and international law, including abiding by the principle of non-refoulement. However, the Court’s examination of the evidence led it to conclude that there were substantial grounds to believe asylum seekers would be at real risk of refoulement if they were removed to Rwanda.

Evidence cited by the Claimants and the intervening United Nations High Commissioner for Refugees, the UN Refugee Agency (“UNHCR”) included that Rwanda has a poor human rights record, with the UK government criticising Rwanda in 2021 for extrajudicial killings, disappearances and torture and deaths in custody. UNHCR evidence indicated that there are serious defects in Rwanda’s asylum system, including the lack of legal representation, procedural unfairness, the risk of judges and lawyers not acting independently of government, and a high rate of rejection of asylum claims from countries in known conflict zones. Furthermore, the UNCHR evidence showed that Rwanda continues to practice refoulement even since the MEDP was concluded. Lord Reed also stressed that a similar asylum-processing agreement between Israel and Rwanda between 2013 to 2018, Rwanda failed to comply with explicit undertakings to comply with the non-refoulement principle.

The Court accepted that the Rwandan government entered the MEDP in good faith, with Lord Reed adding obiter that it was possible for the Rwandan asylum system to improve in future to eliminate the risk of refoulement. Yet it concluded that at present, the Rwanda policy risks breaching the principle of non-refoulement.

Notably, Lord Reed underlined that non-refoulement does not stem purely from the ECHR and Human Rights Act. The principle of non-refoulement is the result of a clutch of other international and domestic provisions, including the Refugee Convention, and 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.

Thus, allowing the Rwanda policy to go ahead would be in breach of several domestic and international laws.

Compatibility with retained EU law

The argument for the cross-appeal submitted by ASM was that the Rwanda policy breached Articles 25 and 27 of the EU Procedures Directive, which remains retained EU law. The articles contain a requirement that asylum seekers only be removed to a third country like Rwanda if they have a connection to it so that it would be reasonable for that person to go to that country.

Richard Drabble KC submitted that on a proper interpretation of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, with regard to the Act’s holistic purpose, the legislative intention behind it was only to address the consequences of ending EU free movement and did not refer to ending EU-derived asylum rights. Indeed, he highlighted that Section 1 of the Act introduces Schedule 1 as making provision to end rights to free movement under retained EU law and to end other EU-derived rights and repeal other retained EU law “relating to immigration”, but not to asylum.

The Court rejected ASM’s argument and dismissed the cross appeal on the grounds that references to “immigration” in the Act do not exclude matters relating to asylum, and that the interpretation rule of the principle of legality does not apply as the protections afforded by the Procedures Directive did not relate to fundamental or constitutional rights. Therefore, the Court concluded that the statute clearly states that the provisions of the Procedures Directive ceased to have effect in domestic law on the 31 December 2020, and are thus not retained EU law.

Consequences of the judgment

Whilst the cross appeal was rejected, the impact of this judgment goes beyond the current suspension of the Rwanda policy, which is said to have cost the government over £140 million.

Responding to the Leader of the Opposition’s accusation that £140 million had been wasted at Prime Minister’s Questions yesterday, the Prime Minister declared that his government was already in the process of finalising a new treaty with Rwanda and would review existing international laws that prevented the policy from going forward. In a later press conference that evening, the Prime Minister declared that a new treaty would resolve the problem by formalising the previous, non-binding memorandum of understanding with Rwanda. He also referred to similar offshore asylum processing policies in Europe such as that being negotiated by Italy with Albania. However, it is still unclear that Italy’s plans to process asylum seekers in Albania would comply with international law.

The government has also announced controversial plans for new emergency legislation that would deem Rwanda a safe country for asylum-seekers, notwithstanding the Supreme Court’s findings of fact on this issue.

Despite these possible responses to the judgment, the process of finalising a treaty and/or changing the law could take over a year and then be subject to legal challenge.

Ultimately, the greatest challenge facing the government in its desire to make the Rwanda policy work was put plainly by Lord Reed in the judgment. The principle of non-refoulement does not derive from the ECHR or a single statute, it is the product of multiple sources of domestic and international law. These all provide freestanding legal hurdles to the plan.

Making the Rwanda policy legally compliant in future will therefore be a difficult task. What the Prime Minister described as the “merry go round” of judicial review is likely continue whatever the government decides to do.

The Supreme Court judgment may be found here.

Richard Drabble KC (instructed by Wilsons Solicitors LLP) appeared for the cross-appellants on the second ground (ASM (Iraq) and others).

Tim Buley KC acted for Freedom from Torture in the Court of Appeal case in July 2023, intervening particularly on the procedural fairness issue.

This article was written by Charlotte Penelope Tosti a Public and Administrative Law Researcher at Landmark Chambers.

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