The government was granted permission to appeal in the Rwanda litigation in July. This post provides an update on the current state of play ahead of the Supreme Court hearing.

You can read Free Movement’s coverage of the Court of Appeal’s judgment here and here.  In essence, the Court of Appeal majority found that there was a real risk of asylum claims receiving inadequate consideration in Rwanda, and a consequent risk of claims being refused and asylum seekers with valid claims being returned to their countries of origin.

When will the Supreme Court hearing take place?

The appeals have been expedited and listed to be heard by five Supreme Court judges on 9 to 11 October 2023. The Supreme Court will almost certainly reserve their decision and issue it together with its reasoning at a later date. The Divisional Court took around three months to issue its decision; the Court of Appeal two months. Clearly, there is significant pressure for a decision to be made quickly.

The Home Secretary’s article 3 appeal

The Court of Appeal granted the Home Secretary permission to appeal against its majority ruling that removal of asylum seekers to Rwanda under the Migration and Economic Development and Economic Partnership (“the agreement”) breaches article 3 ECHR because of the risk of refoulement.

The Home Secretary is appealing the decision on three points.

First, contrary to the decision of the Court of Appeal majority, it is argued that the Divisional Court applied the correct legal test when it decided that there were not substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill-treatment in the form of refoulement contrary to article 3 ECHR. The Court of Appeal was thus wrong to interfere with the Divisional Court’s findings on the evidence.

Second, in any event the Court of Appeal was wrong to decide on the evidence that there were substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill-treatment in the form of refoulement contrary to article 3 ECHR. This point encompasses matters including the weight to be attached to formal and informal monitoring of the implementation of the agreement; the incentives on the Rwandan government and judiciary to act in accordance with the terms of the terms of the agreement as to how asylum claims will be dealt with; and a contention that the practical likelihood of Rwanda returning asylum seekers to their countries of origin is low in light of the fact it has no returns agreement with these countries in place.

Third, a freestanding point that the Court of Appeal majority failed to give adequate weight to the British government’s assessment of the likelihood of the Rwandan government abiding by its assurances. By analogy with the Supreme Court’s decision in Shamima Begum’s case, it is argued that it is British government that has the necessary institutional expertise to be able to assess the reliability of these assurances and its assessment should thus be accorded substantial respect and weight. If the government’s assessment is accepted, the premise of any analysis of future risk would be that Rwanda would comply with the terms of the Memorandum of Understanding and Notes Verbales as to how asylum claims will be dealt with and the conditions they would live in in Rwanda.

The article 3 cross appeals

The Supreme Court has granted some of the claimants permission to cross appeal on two points.

First, that there are substantial grounds for believing that asylum seekers would face a real risk of article 3 ill-treatment in Rwanda for reasons other than the risk of onward refoulement. The claimants relied on evidence that refugees had in the past been ill-treated by the Rwandan government for dissent and argued that they would face similar risks in future. One of the Court of Appeal judges decided that there was such a risk (Vos MR) while the other preferred not to decide the issue. The Divisional Court had decided that on the evidence before it the risk was speculative and not sufficient to qualify as a “real risk”.

The second ground of appeal is that the Home Secretary had failed to comply with her duty of thorough investigation and examination of the adequacy of the Rwandan refugee status determination system.

Retained EU law

The Court of Appeal granted one of the claimants (ASM) permission to appeal against its unanimous ruling (upholding the Divisional Court’s ruling) that the Procedures Directive is not retained EU law because of the effect of section 1 and paragraph 6 of Schedule 1 of the Immigration and Social Security Coordination (EU Withdrawal) Act 2020. It is common ground that if the Procedures Directive is still part of UK law, the agreement does not comply with it because there is no requirement for asylum seekers removed under the agreement to have any connection with Rwanda.

Conclusion

The government continues to state that implementation of the Illegal Migration Act 2023 is on hold pending the outcome of this litigation. Until then, uncertainty remains about the future of the asylum system in the UK.