There were 55 counsel instructed in the recent English Court of Appeal case in which the UK government’s Rwandan Asylum scheme was held, on a 2-1 split decision, to be unlawful. No wonder the court’s 161-page judgement is a challenging read. It ranges far and wide over numerous complex issues of fact and law. The general point on which the appellants succeeded was “whether the asylum system in Rwanda was capable of delivering reliable outcomes.”

The appellants, a group of 10 asylum seekers, persuaded the Master of the Rolls, Sir Geoffrey Vos, and Lord Justice Underhill that there are substantial grounds for believing that there is a real risk that persons sent to Rwanda will be returned to their home countries (a practice known as refoulement) where they face persecution or other inhumane treatment, when, in fact, they have a good claim for asylum. In that sense Rwanda is not a “safe third country”. Sending them to Rwanda would breach article 3 of the European Convention on Human Rights and would constitute a failure on the part of HMG to comply with section 6 of the Human Rights Act 1998.

The UNHCR

The United Nations High Commissioner for Refugees is an interested party in the case. Detailed evidence filed on his behalf in the form of affidavits from a senior legal officer swayed the majority in favour of the appellants’ position. That evidence (which is exhaustively analysed in the judgements) falls into two categories. First, detailed evidence of past failures on the part of the Rwandan government to operate a fair and lawful asylum system. This included a breakdown of a similar scheme entered into between Rwanda and Israel in 2013, case studies of asylum claims rejected on spurious grounds and statistical evidence of discrimination against Afghan and Middle Eastern asylum seekers.

The second category is a close analysis of the current institutional arrangements put in place by the Rwandan government to implement the UK scheme. That evidence, according to the UNHCR, demonstrates that the Rwandan system is “marked by acute unfairness and arbitrariness, some of which is structurally inbuilt; and by serious safeguard and capacity shortfalls, some of which can be remedied only by structural changes and long-term capacity building…..that asylum seekers transferred to Rwanda are at serious risk of both direct and indirect refoulement and will not have access to fair and efficient asylum procedures”.

The UK government response

The UK government position is that the past is another country. The Rwandan government has provided formal assurances that the scheme will operate lawfully and efficiently. Ex facie those assurances would be sufficient to avoid any risk of a breach of article 3. The UK scheme is an entirely new arrangement. The existing systems and past bad practices are irrelevant to an evaluation of the reliability of these new assurances. The UK and Rwandan governments had very strong vested interests in making the scheme work in a way that was lawful. There was no risk of refoulement where the Rwandan government had specifically to consent in advance to each asylum seeker being sent to Rwanda. Moreover, the scheme would be carefully and independently monitored by the Joint Committee of the UK and Rwandan governments and a Monitoring Committee comprised of people independent of the two governments and the UNHCR itself. If things went wrong, they would come to light. It was a scheme that had been considered with unparalleled care and thoroughness by the UK government.

These arguments won the day in the Divisional Court and also found favour in the dissenting opinion of the Lord Chief Justice, Lord Burnett of Maldon, in the Court of Appeal.

What next?

It will be interesting to see what the Supreme Court makes of this. It is one thing to say that the Rwandan government has the will and intention to avoid the failures of the past in implementing the new UK scheme. The more challenging problems are the structural defects and lack of capacity to deliver as described in the UNHCR evidence. As Underhill LJ said in his opinion [261] “aspiration and reality do not necessarily coincide.” Time may tell whether the UNHCR ‘s misgivings are misplaced or whether the UK government’s position is nothing more than wishful thinking.

One issue which may receive closer attention in the Supreme Court is the extent to which the courts should defer to the UK government’s predictive judgement that the scheme can operate lawfully. In a letter to the London Review of Books 10 February 2022 Lord Sumption (who retired from the Supreme Court in December 2018) said - “……the essential feature of the Supreme Court’s recent decisions on public law has been a renewed emphasis on the centrality of Parliament in our constitution, not just as the supreme legislative organ of the state but as the ultimate source of the political legitimacy of governments”. Those cases have given increased prominence to the doctrine of the separation of powers. One strand of this is that the government is said to have institutional competence meaning special knowledge and greater expertise in making evaluative or predictive judgements on policy related issues. In this field it is arguable that the UNHCR has comparable if not superior competence. The second strand is democratic legitimacy. The government is accountable to Parliament and ultimately to the electorate for policy related decisions therefore the courts should be very slow to interfere with HMG’s judgement that the Rwandan assurances will be honoured. By taking this line the Supreme Court could by-pass the highly nuanced dividing lines between the opposing opinions in the lower courts.

In litigation like this where the proceedings concern highly charged political issues (“Politigation”) the result can be double edged. If the government loses in the Supreme Court they can blame ‘lefty lawyers’ for preventing them from stopping the boats. If they win and the Rwandan scheme fails to stop the boats then they will be pilloried for wasting vast sums of money on a worthless venture.