Supreme Court rules UK government’s Rwanda policy for asylum seekers is unlawful

About this case:

• Citation:
  [2023] UKSC 42
• Judgment:
  External link
• Court:
  UK Supreme Court
• Judge:
  Lord Reed and Lord Lloyd-Jones

It had previously been held by the Court of Appeal of England and Wales that the policy was unlawful because there were substantial grounds for believing that the Rwandan authorities would not properly determine asylum claims. The Home Secretary challenged the court’s decision that there was a real risk of refoulement, while a cross-appeal was made against the rejection of an argument that the policy was in breach of retained EU law.

The appeal was heard by Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Briggs, and Lord Sales. Lord Reed and Lord Lloyd-Jones issued a joint opinion with which the other three judges agreed.

Adequate safeguards

On 13 April 2022, the UK and Rwandan governments entered into a partnership under which Rwanda was agreed to be a “safe third country” to which asylum seekers in the UK could be removed under the UK Immigration Rules as were in force at the time of the claims concerned in the appeal. The criteria for a “safe third country” included the requirement that the principle of non-refoulement, i.e., not returning asylum seekers to their home country if they were at risk of persecution, would be respected in that country in accordance with the UN Refugee Convention of 1951.

In the present proceedings, a number of asylum seekers from various countries challenged inadmissibility and removal decisions made by the Home Secretary between May and July 2022 removing them to Rwanda. The Divisional Court held that, while certain removal decisions fell to be quashed on the ground of procedural flaws, the policy was not as a whole unlawful.

A majority decision in the Court of Appeal upheld the claimants’ challenge to the lawfulness of the policy, finding that notwithstanding assurances made by the Rwandan government there remained a real risk of refoulement. It did so on the basis that the Divisional Court applied the wrong legal test when considering the refoulement issue, mistakenly dealing with the issue on the basis that the court’s role was limited to deciding whether the Secretary of State had been entitled to form a view that there was no risk.

It was submitted for the Secretary of State that, notwithstanding any problems that there may have been in the past or that may remain at present, the Rwanda partnership agreement (the MEDP) set out arrangements for the future which provided adequate safeguards against refoulement. The Rwandan government could be relied on to fulfil its undertaking to process the claims in accordance with those arrangements.

Real risk of ill-treatment

In their opinion, Lord Hodge and Lord Lloyd-Jones observed: “The principle of non-refoulement is given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. It is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law.”

On whether the Court of Appeal had made the correct decision, they said: “We are in no doubt that, regardless of whether the Divisional Court applied the correct legal test, the Court of Appeal was in any event entitled to interfere with its conclusion. That is because the Divisional Court erred in its treatment of the evidence bearing on the risk of refoulement, essentially by failing to engage with the evidence of the UN High Commissioner for Refugees concerning problems affecting the processing of asylum claims in Rwanda.”

They continued: “The evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness.”

The judges concluded: “We accept the Secretary of State’s submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were.”

The appeal was therefore refused. The cross-appeal concerning retained EU law brought by one claimant, ASM, was also refused on the basis that the law relied upon ceased to have domestic effect following the Brexit transition period.