The European Court of Human Rights has given formal notification to the UK government of an application by an Iraqi asylum-seeker (anonymised as NSK) challenging his removal to Rwanda. They also found that several of the Rule 39 interim measures to prevent individual applicants being removal to Rwanda have now expired. This post provides a short update on the implications of the European Court’s notification and determination.

The proceedings

NSK’s application to the European Court for a Rule 39 interim measure was first made following refusals by the UK domestic courts to grant his application for interim relief pending a full judicial review of the Rwanda policy. He relied on Article 3, prohibition against torture and inhuman and degrading treatment, in his application.

Interim relief was granted on 14 June 2022, the day NSK was due to be removed to Rwanda, which determined that he should not be removed until the expiry of a three-week period following delivery of the final domestic decision in the ongoing judicial review proceedings.

The UK Government made a request for the Rule 39 interim measure to be lifted but this was refused. Should NSK be successful in the domestic courts, his return to the UK at the conclusion of the proceedings was insufficient protection, given that removal to Rwanda in itself would have put him at real risk of irreparable harm

NSK’s case was then heard alongside linked claims brought by other individuals and NGOs. The High Court handed down its decision on 19 December 2022. It found that the Rwanda policy was lawful, but applications of the policy in individual cases were unlawful. You can read more about the consequences of the decision on individual removals here. On 16 January 2023, the High Court formally quashed the decisions in the successful claimants’ cases, including in NSK’s case. You can read more about ongoing appeals in the case here and here. 

The European Court’s announcement

A question arose as to whether the High Court’s quashing of the individual decisions, which the Home Secretary has not appealed (though the Court’s finding that the policy is lawful is being appealed to the Court of Appeal) was the “final domestic decision”. The European Court considered that it was. Accordingly, the Rule 39 interim measure in NSK’s case (and two other cases) have expired.

In anticipation of this, NSK made further submissions on 14 March 2023 arguing that the Article 3 issues in his case remained live, noting that they were the subject of three grounds of appeal which would be heard and determined by the Court of Appeal. He further maintained that he had “victim” status under Article 34 (pending any potential future decisions by the Home Secretary to remove him) which is a prerequisite to making a complaint to the European Court.

The European Court’s formal notification of NSK’s complaint under Article 3 to the UK Government – which simply means that a valid application has been made and that the European Court has invited parties to make observations on the admissibility and merits of the application – has asked parties to specifically address two questions:

First, whether NSK could be considered a “victim” under Article 34 in circumstances where he could not be removed until any further decisions by the Home Secretary were made. Second, if such decisions were made, whether his removal to Rwanda would breach Article 3.

Although it may benefit the Home Secretary to dispute NSK’s victim status in the narrow context of his application, it may be preferable to concede the point if the ultimate aim was to get the European Court’s “stamp of approval” on the Rwanda policy as soon as possible (by having a case heard expeditiously). This is on the assumption that the government regards compliance with the European Court’s decisions, and respect for their authority, as a paramount (or even relevant) consideration.

It seems unlikely that any finalised view on the Article 3 point can be given prior to the Court of Appeal hands down its decision and any subsequent appeal to the Supreme Court is determined.

Impact on domestic proceedings

The full hearing by the Court of Appeal is due to take place on 24-27 April 2023. The European Court’s notification that the interim measure has now expired does not mean that the Home Secretary is free to remove the asylum-seekers whose appeals are now before the Court of Appeal, given that the decisions made in respect of them were quashed by the High Court.

If the Home Secretary does make fresh decisions to remove the asylum-seekers before appeals against the legality of the policy have concluded, it is likely that further applications for interim measures will be made.

The three grounds of appeal alluded to in NSK’s further submissions on 14 March 2023 are all concerned with compliance with standards set out in prior decisions of the European Court in relation to Article 3. They argue that that the High Court erred in interpreting and applying:

• the Othman test, which requires that diplomatic assurances relied on by the Home Secretary provide a sufficient guarantee to protect asylum-seekers from the risk of refoulement and any another Article 3 ill-treatment;
• the Ilias test, which requires that the Home Secretary conduct a sufficiently thorough examination of Rwanda’s asylum system which ensures that an individual’s asylum claim will be properly determined and they do not face a risk of refoulement; and
• the Soering test, which requires that the challenged policy does not in fact give rise to a real risk of exposure to inhuman or degrading treatment or punishment.

The practical effect of the European Court’s notification on the current proceedings in the domestic courts is likely insignificant. However, the Court of Appeal, which will be hearing arguments on and having to decide whether the Rwanda policy breaches Article 3, now knows that it is likely that its determination on the Article 3 issue will face scrutiny by the European Court.

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