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The Court of Appeal rules that the Government's Rwanda policy is unlawful: what next?

Posted on 3 July 2023

On 29 June 2023, the Court of Appeal gave its judgment in AAA and others v The Secretary of State for the Home Department [2022] EWCA 3230 (Admin), a series of cases brought by ten Appellants from Syria, Iraq, Iran, Vietnam, Sudan and Albania, and the charity Asylum Aid.  The Court of Appeal held that the Rwanda policy is unlawful. 

The procedural history

Each of the Appellants had arrived in the UK irregularly on small boats, following which the Government decided to remove them to Rwanda for their asylum claims to be decided under the Rwandan asylum system. 

The Appellants brought judicial review proceedings in the High Court challenging (i) the lawfulness of the Rwanda policy generally (the "generic claim"); and (ii) the Government's individual decisions to remove each of them to Rwanda (the "specific claims").  The Appellants remained in England pending the outcome of the proceedings. 

The High Court (on 19 December 2022) quashed the specific claims, on the basis of procedural unfairness, but dismissed the generic claim (i.e. ruling that the policy in general was not unlawful). The Appellants appealed the dismissal of the general claim.

The key legal question: is Rwanda a "safe third country"

The central question before the Court of Appeal was whether there are substantial grounds for contending that the removal of asylum seekers to Rwanda will give rise to a risk of treatment contrary to Article 3 of the European Convention on Human Rights, that "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment"

The Appellants' position was that defects in Rwanda's consideration of asylum claims would give rise to a real risk of being returned to their countries of origin despite having valid claims for asylum. The Appellants relied upon submissions from the UN High Commissioner for Refugees which concluded that the agreement between the UK and Rwanda was not sufficient to protect against the risk of breaching Article 3.

The Government's position was that it had secured guarantees from Rwanda in a Memorandum of Understanding ("MoU") and diplomatic notes that it would deal with asylum applications properly.

The majority of the Court of Appeal held that the "aspirations" provided by Rwanda in its MoU were not deliverable: that the asylum system in Rwanda does not have the capacity to deliver consistently accurate and fair asylum decisions. For that reason, the Court held that Rwanda is not, currently, a "safe third country". Lord Burnett dissented and agreed with the decision of the High Court that the assurances given by the Rwandan government are sufficient to ensure there is no risk of a breach of Article 3.

A judicial – not political – decision

The matter of asylum policy, particularly linked to small boats, is one of intense political debate.  There has already been commentary from some quarters that the judgment undermines the will of Parliament, which is reminiscent of the narrative surrounding the two Gina Miller judicial reviews in which this Firm was involved. 

The judgment addresses this point head on, stating expressly that "[t]he policy is a politically sensitive one which has attracted significant public and media attention. Notwithstanding that position, the case must be determined on the basis of the evidence and of accepted and familiar principles of public law. Nothing in this judgment should be construed as supporting or opposing any political view of the issues"

The Court of Appeal further noted in its judgment that it had been provided with thousands of pages of documents and authorities and heard four days of concentrated argument (there are a total of 55 barristers listed as appearing in the case); i.e. the case was not considered lightly.

What next?

The decision provides that unless and until the deficiencies in Rwanda's asylum processes are corrected, the removal of asylum-seekers to Rwanda is unlawful.  The Government has indicated that it is likely to appeal the decision to the Supreme Court.

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