November 17, 2023
The Supreme Court has unanimously held that the Secretary of State’s policy to remove asylum seekers in the UK to Rwanda, to have their asylum claims decided there, is unlawful.
Lord Reed and Lord Lloyd-Jones (with whom Lord Hodge, Lord Briggs and Lord Sales agreed) upheld the judgment of the Court of Appeal in which the individual claimants’ challenge to the lawfulness of the policy was successful. This was on the basis that the evidence before the Divisional Court demonstrated that there were substantial grounds for believing there was a real risk that asylum claims would not be properly determined by the Rwandan authorities and that, in consequence, there was a real risk of individual asylum-seekers being refouled i.e. being sent back to the country in which they faced a real risk of persecution.
The Supreme Court ruled that the Divisional Court had erred in its approach to the evidence and approved the assessment made by the majority of the Court of Appeal of the evidence. The Supreme Court was satisfied that the Court of Appeal had been entitled to interfere with the Divisional Court’s conclusions and to consider the question for itself, because the Divisional Court had failed to engage with comprehensive evidence from the UNHCR as to systemic problems with the processing of asylum claims in Rwanda, which bore on the risk of refoulement.
The Rwandan and UK governments had entered into a Memorandum of Understanding purporting to remedy the deficiencies in the Rwandan asylum system. However, the Supreme Court noted a number of factors which led it to conclude that the agreement would not in fact be sufficient to remedy those deficiencies. These included the general human rights situation in Rwanda; the fact that it had a history of acting in breach of the principle of non-refoulement; and that it had, in the recent past, failed to abide by similar assurances which it had given to another foreign government. The Divisional Court had not engaged with this evidence and, consequently, had failed to examine the reliability of the assurances given by Rwanda in the light of that evidence.
In agreement with the Court of Appeal, the Supreme Court concluded that the past and the present cannot be effectively ignored or sidelined as the Secretary of State had suggested. Whilst the Secretary of State had argued that the Court needed to show deference to the Government's expertise as the matter concerned an agreement between state parties, the Supreme Court found that in human rights cases, the Government’s view was not the only one, and the court must look at all the evidence for itself.
Having decided the issue of refoulement in the claimants’ favour, the Supreme Court deemed it unnecessary to determine the cross-appeal grounds relating to the risk to the claimants of ill-treatment contrary to article 3 of the ECHR in Rwanda itself; and to whether the Secretary of State had failed to consider the risk of refoulement with the degree of care required either under the common law or under article 3.
The Supreme Court did determine the cross-appeal relating to the continued applicability of aspects of EU Law, which, had they been retained in UK domestic law, would have meant that it was unlawful to send asylum-seekers to a country such as Rwanda with which they had no prior connection. However, the Supreme Court found that the relevant EU law had not been retained because legislation passed in 2020 had been sufficiently clear to revoke EU asylum law.
We now call upon the Government to promptly process the protection claims made by RM, ASM and others represented by the firm who have been patiently awaiting the court’s decision.
If you have a family case where you require some advice or representation, please contact Mavis for an appointment with a family solicitor on 020 8885 7986.