Last week, the Supreme Court heard an argument that the Rwanda policy breaches retained EU law, which the president Lord Reed described as a potential “knock out” blow in the Rwanda litigation.

Under the Rwanda policy, asylum seekers arriving by small boat or other illegal clandestine means would be flown to Rwanda to have their asylum claims considered under the Rwandan asylum system. The UK government considers Rwanda to be a safe country. There is no requirement under the policy for an asylum seeker to have any form of connection to Rwanda.

Article 27 of Council Directive 2005/85/EC (“the Procedures Directive”) stipulates that the “safe third country concept” must be subject to rules laid down in national legislation, including “rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country”.

It is accepted by the government that if the Procedures Directive is “retained EU law” the Rwanda scheme is incompatible with Article 27, because it does not require any connection between the asylum seeker and Rwanda.

What is the connection between Brexit and the Rwanda agreement?

The European Union (Withdrawal) Act 2018 (EUWA) is the main legislation that gave effect to Brexit. It repealed the European Communities Act 1972. However, section 4 of the Act also provided for some EU law to continue to be available in domestic law, with the idea of allowing the government more time to consider what shouldn’t be kept on the UK statute book.

A major part of Brexit was the repeal of EU free movement law, which in broad terms gave preferential treatment in UK law to EU nationals and their family members. Free movement rights included rights of residence and exemption from immigration control, but also included rights to social security benefits not available to third country nationals.

So the government introduced what became the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (ISSCA). The relevant part of the long title explained the purpose of the legislation as: “to make provision to end rights to free movement of persons under retained EU law and to repeal other EU law relating to immigration”. Part 1 of the Act is headed “measures relating to ending free movement”. Section 1 is headed “Repeal of the main retained EU law relating to free movement etc” and provides:

Schedule 1 makes provision to-

• end rights to free movement of persons under EU law, including by repealing the main provisions of retained EU law relating to free movement, and
• end other EU-derived rights, and repeal other retained EU law, relating to immigration.

Schedule 1, paragraph 6(1) provides:

Any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law so far as-

• they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including, and as amended by, this Act), or
• they are otherwise capable of affecting the exercise of functions in connection with immigration.

The Explanatory Notes to ISSCA provide a “non-exhaustive list” of the directly effective rights relevant to this paragraph. The provisions listed relate to EU free movement law; none of the EU asylum directives are referred to.

On their face, the provisions in s1 and Schedule 1 of ISSCA are extremely broad. They are all the more so because “Immigration Acts” refers to the definition in section 61 of the UK Borders Act 2007, a long list of immigration legislation which is updated when new legislation passes (the Nationality and Borders Act 2022 and the Illegal Migration Act 2023 have since been added).

So EU-derived rights etc would potentially be caught if they were inconsistent with, or “otherwise capable of affecting the interpretation, application or operation of” both primary legislation but also any delegated legislation made under the Immigration Acts, as well as the immigration rules which are not legislation but are made under section 3(2) Immigration Act 1971.

The House of Lords repeatedly expressed concern about the overly broad language in paragraph 6(1) of Schedule 1 of ISSCA and its lack of certainty. In his capacity as a Crossbench Peer, Lord Pannick said, during a Parliamentary debate:

I simply do not understand how advisers on immigration law, far less those individuals who are the subject of immigration law, are supposed to work out what their legal rights and obligations are. Legal certainty requires, in my view, that the schedule should set out those EU-derived rights et cetra which are disapplied, or those which are retained…

I think the only answer the Minister could possibly give to the concern I have identified about legal certainty is that Ministers and parliamentary draftsman do not know which provisions of EU law survive and which do not. That rather makes my point, I think…

How are people affected by these parts of ISSCA, and their immigration advisers, supposed to make sense of them? The government had repeatedly (to Parliament and otherwise publicly) made clear its intention to end EU free movement rules and replace these with a points-based immigration system (see, for example, the policy statements published in February 2020 and August 2020). During the passage of ISSCA, it was repeatedly emphasised by the Government that the legislation was intended to address free movement and matters relating to free movement.

The Government had not given any indication publicly of an intention to depart from EU asylum law.

However, as a result of information that came out in the Rwanda litigation, we now know that in the face of rising Channel crossings in the summer of 2020 the government had internally decided to explore an offshoring asylum arrangement of the kind that was subsequently agreed with Rwanda. Also, at the end of the Brexit transition period, the UK government introduced a statement of changes to the immigration rules which amended the rules on the inadmissibility of applications for asylum by non-EU nationals on safe third country grounds.

The rules up to this point, reflecting Article 27 of the Procedures Directive, included a requirement that “there is a sufficient degree of connection between the person seeking asylum and [the putative safe third country] on the basis of which it would reasonable for them to go there” (paragraph 345C(v)). This requirement was removed from the amended rule introduced on 31 December 2020.

The position of Government lawyers in immigration cases arising after ISSCA was passed reflected the Government’s position during the passage of the Act, expressly accepting that EU asylum directives continued to be ‘retained EU law’ (i.e. unaffected by the Act). For example, in a family case heard on 25-27 January 2021 (i.e. after the Act had passed), as intervener the Home Secretary expressly accepted that the Procedures Directive was retained EU law, a position which the Supreme Court agreed with and relied on in deciding the case (G v G).

Similarly, in two Upper Tribunal cases, it was common ground that another EU asylum directive (the Qualification Directive) was retained EU law and this accepted by the Tribunal (NM v SSHD [2021] UKUT 00259 (IAC) and Ainte (material deprivation – Art 3 – AM (Zimbabwe)) [2021] UKUT 00203).

The position taken in the Rwanda litigation

It was only in her defence to the Rwanda litigation that the Home Secretary for the first time took the reverse position and argued that paragraph 6(1) to Schedule 1 of ISSCA means that the Procedures Directive is not retained EU law.

ASM’s case in the Rwanda litigation, that Article 27 of the Procedures Directive is retained EU law, rests on a construction of ISSCA which interprets the broad wording of the Act in context, taking account of the legislative intention behind the Act. It is argued, essentially, that section 1 limits the scope of Schedule 1 to “immigration” in a narrow sense – that is, EU free movement and associated rights, and not EU asylum law.

That interpretation is consistent with the Act as a whole, including the explanatory notes, and with available materials from Parliamentary debates. It also reflects the fact that “immigration” and “asylum” are distinct concepts and legal frameworks in EU law, with the former falling under the single market policy domain and the latter under security and justice.

The alternative construction put forward by the government in the Rwanda litigation would mean that an asylum seeker’s fundamental right to have their refugee status determined in the UK (with consequent access to UK courts if the decision went against them) has been taken away by broad language which does not explicitly identify the provision being repealed, without evidence of Parliamentary intention to do so, and without there being any evidence that it was considered by the government department that introduced ISSCA and sponsored its passage through Parliament.

Conclusion

Even if the Supreme Court accepts the argument that the Procedures Directive is retained EU law and available in UK law, this will only remain the case until the end of this year because of the effect of section 2 of the Retained EU Law (Revocation and Reform) Act 2023 (which repeals section 4 EUWA at the end of 2023). This would, however, mean that any asylum seeker who arrived between the start of the Rwanda scheme in April 2022 and the end of 2023 could not be removed there. That potentially affects a very significant number of people: it has been reported that up to March 2023 some 24,000 asylum seekers had received notices informing that the Home Secretary intended to remove them to Rwanda.

In the EU, the new EU-wide agreement on asylum procedures is to retain the requirement for there to be some form of connection between an asylum seeker and any safe third country it is proposed to remove them to. It has been reported that national authorities will be allowed greater flexibility in how “connection” is defined, for example to allow removals to countries asylum seekers have merely transited in or have a family member in. However, this is unlikely to allow EU member states to replicate the UK’s arrangement with a country like Rwanda where asylum seekers arriving in Europe will likely not have any form of connection to.

The Supreme Court judgment is awaited.

Article written with thanks to Gabriel Tan and Leonie Hirst for their input.