The issue in November 2023 was whether people removed to Rwanda under the 2022 asylum arrangements would be protected from being sent on to a country where they faced persecution or ill-treatment. Rwanda had given assurances. The Supreme Court examined whether its asylum system could put those assurances into practice at the time of the decisions under challenge.
The policy
The policy was that selected people who claimed asylum in the United Kingdom should not have their claims decided here. They were to be sent to Rwanda, whose authorities would decide the claims and grant asylum there if the claims succeeded. These proceedings concerned claims made on or before 27 June 2022. Under paragraphs 345A to 345D of the Immigration Rules, a claim could be treated as inadmissible if the person had had an opportunity to claim asylum in a safe third country but had not done so. Removal could then be to that country, or to any other safe third country willing to accept the person. The Home Secretary proceeded on the basis that those selected for Rwanda had usually had that opportunity in France, and that Rwanda was another safe third country.
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The Immigration Rules required a safe third country to respect non-refoulement. This means protection against being returned, directly or through another country, to a place where a refugee faces persecution. Article 3 of the European Convention also prevents removal where substantial grounds show a real risk of torture or inhuman or degrading treatment. The court had to assess the risk to those sent under these particular arrangements.
The 2022 partnership included a memorandum and diplomatic notes. Rwanda undertook to assess asylum claims, give reasons and provide appeals. The arrangements also provided for monitoring and financial support. The memorandum itself created no rights enforceable by an individual.
The question for the court
The claimants challenged decisions made between May and July 2022. The United Nations High Commissioner for Refugees intervened. The Divisional Court quashed some decisions because the policy had been applied in a procedurally flawed way, but held that the policy itself was lawful. By a majority, the Court of Appeal reversed that conclusion. Sir Geoffrey Vos MR and Underhill LJ held that there were substantial grounds for believing that Rwanda would not determine claims properly and that refoulement was a real risk, so removal would breach section 6 of the Human Rights Act. Lord Burnett of Maldon CJ dissented. All three judges held that the safety certificates should not have been issued.
Lord Reed and Lord Lloyd-Jones, with whom Lord Hodge, Lord Briggs and Lord Sales agreed, stressed that the Supreme Court’s task was legal rather than political. The court itself had to decide whether there were substantial grounds for believing that removal would create a real risk of ill-treatment by refoulement. That is a different question from whether the Home Secretary was entitled to take another view. The Court found it unnecessary to decide which test the Divisional Court had used. The Court of Appeal could reconsider the evidence anyway: the Divisional Court had not engaged with UNHCR’s evidence and had said that official confidence in Rwanda could be rejected only if there was compelling evidence to the contrary.
That approach gave too much deference to the executive. Assurances are relevant, but they are not enough by themselves. Their practical value must be assessed against the human rights situation, the receiving state’s laws and practices, its record of keeping similar promises made to any country, and the monitoring arrangements. The government’s assessment is important evidence, but the court must reach its own conclusion. This was not a national security question reserved to ministers. UNHCR’s evidence deserved particular weight because it supervises the Refugee Convention, has specialist expertise, and had worked in Rwanda since 1993. On the significant facts, its evidence was essentially uncontradicted.
Why the assurances were not enough
The Court accepted Rwanda’s good faith. The difficulty lay in its asylum system as it then operated. UNHCR had direct experience of decision-making, including claims summarily rejected without effective safeguards and recent instances of refoulement. The record for applicants from some of the countries likely to be represented in the UK scheme also raised concerns. Monitoring could reveal a mistake after the event, when a person might already have been returned to danger.
Experience under an earlier arrangement with Israel also mattered. Assurances given then had not stopped asylum seekers being moved on. The Court accepted that changes might eventually address the deficiencies. Its task was to assess the evidence at the time of the decisions before it.
Retained EU law
ASM cross-appealed on articles 25 and 27 of the Procedures Directive. Those provisions allow a safe-third-country inadmissibility decision only under national legislation requiring a connection between the asylum seeker and the third country. The Home Secretary accepted that the scheme failed that test if the articles still applied. They had initially been retained EU law, but the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 removed them. Paragraph 6 of Schedule 1 disapplies EU-derived rights so far as they are inconsistent with, or capable of affecting, immigration legislation or immigration functions. Asylum comes within that language: it is governed by rules made under the Immigration Act 1971, and a successful claim generally leads to leave to remain. Explanatory notes and parliamentary reports did not displace the statute’s clear meaning. The principle of legality did not do so either, and a concession in G v G was not binding because the point had not been argued there.
Verdict: The Court unanimously dismissed the Home Secretary’s appeal. On the evidence at the relevant time, removal under the policy exposed asylum seekers to a real risk of refoulement. It also dismissed ASM’s cross-appeal. The EU provisions relied on for a separate requirement of connection with the third country no longer applied.
