The Court of Appeal has found, by a majority, that the Rwanda plan is unlawful as Rwanda is not a sufficiently safe country. In short, the Rwandan authorities are not yet reliably able to sort genuine from non-genuine refugees, and therefore there is too great a risk that genuine refugees will be returned to their home countries where they might face persecution. Afghans and Syrians, for example, currently have a 100% rejection rate in Rwanda.
The full judgment can be accessed here, and a summary of that judgment is accessible here. The majority judgment is given by the Master of the Rolls, Sir Geoffrey Vos, and the Vice-President of the Court of Appeal Civil Division, Lord Justice Underhill. The Lord Chief Justice, Lord Burnett, dissents and would have dismissed that particular ground of appeal.
All of the other grounds of appeal pursued by the claimant asylum-seekers against the Rwanda plan were unanimously dismissed.
You can watch the Lord Chief Justice giving a summary of the court’s conclusions here:
Rwanda not a safe third country
Sir Geoffrey Vos and Lord Justice Underhill give separate judgments. Read together, their decision is that the deficiencies in the Rwandan asylum system means that there are substantial grounds for believing that there is a real risk that persons sent to Rwanda will be returned to their country where they faced persecution or other inhumane treatment, when in fact they have a good claim for asylum.
This means that the Rwandan plan breaches Article 3 ECHR, more specifically the test spelled out in Soering v United Kingdom (1989) 11 E.H.R.R. 439, which makes a decision or policy contrary to Article 3 where there are substantial grounds for believing that it would lead asylum-seekers to face real risk of Article 3 mistreatment.
This conclusion is founded on the evidence, primarily UNCHR’s, that Rwanda’s system for determining asylum claims was, up to the finalising of the Rwanda plan, inadequate.
Whilst the majority (in agreement with Lord Burnett) emphasise that there is no evidence to suggest that the Rwandan Government entered the agreement in bad faith, the following issues are emphasised in the judgment of Lord Justice Underhill as supporting the conclusion that the Rwandan system was not reliably fair and effective at the relevant dates:
- The evidence of the way in which asylum interviews are conducted.
- The absence of opportunity for claimants to present their claims through a lawyer.
- The evidence that the authority charged with determining asylum claims does not have sufficient skills and experience to make reliable decisions.
- The evidence that NGOs said to be able to provide legal assistance are unlikely to have sufficient capacity to do so.
- The fact that the appeal process to the Rwandan High Court is wholly untested, coupled with grounds for concern about whether the Rwandan judicial culture means judges are reluctant to reverse decisions of the executive decision-makers.
This led the Master of the Rolls, Sir Geoffrey Vos, to conclude that “on the evidence before this court, there was simply insufficient evidence to demonstrate that officials would be trained adequately to make sound, reasoned, decisions” (para 99). Lord Justice Underhill agreed, finding that “the Rwandan system for refugee status determination was not, as at the relevant date, reliably fair and effective” (para 263).
The assurances given to the UK government by the Rwandan government were held to be insufficient. Vos MR pointed to the finding of the Israeli Supreme Court that the Rwandan government had previously breached a similar Israel-Rwanda deal (para 102). This was important not just on the asylum process but on the very safety of refugees, given that Rwandan police had shot and killed at least 12 Congolese refugees in 2018. Vos MR goes on to say (para 104)
the problem with uncritical acceptance of the SSHD’s view that the unequivocal assurances in the MEDP [the acronym for the UK-Rwanda partnership] can wipe away all real risk of article 3 violations is that the structural institutions that gave rise to past violations remain in Rwanda today
Underhill LJ is critical of the approach to this issue adopted by the British government. He accepts that officials were not merely “going through the motions” but continues (para 268)
perhaps as the result of the pressure of the timetable to which they were required to work, I believe that the officials in question were too ready to accept assurances which were unparticularised or unevidenced or the details of which were unexplored: the late emergence of the problem about interpreters is an illustration of this.
He goes on to cite the review of the country information relied on by the UK government by the Independent Advisory Group on Country Information on behalf of the Independent Chief Inspector of Borders and Immigration.
Importantly, the majority did not hold that the UK was obliged to decide the asylum claims of refugees who arrive within its jurisdiction; they held that Rwanda was not a safe country to which to send refugees to have their claims decided. The judges do not rule out the possibility of refugees being removed to a genuinely safe country.
All other grounds of appeal dismissed
All of the claimant asylum-seekers other grounds of appeal against the Rwandan plan have been dismissed. This is a summary of the Court’s conclusions.
First, as to the effect of the Refugee Convention, the Court of Appeal concludes, in agreement with the High Court, that Article 31 does not in principle prevent the UK from removing asylum seekers to a safe third country.
Second, as to retained EU law, the Court of Appeal concludes, in agreement with the High Court, that EU law, which only permits asylum-seekers to be removed to a safe third country where they have some connection to it (none of the claimant asylum-seekers have a connection with Rwanda), ceased to be a part of EU law as a result of primary legislation following Brexit.
Third, in agreement with the High Court, the Court of Appeal concludes that the use of guidance to case workers to treat Rwanda as a safe third country, rather than formal statutory designation, was not unlawful.
Fourth, in agreement with the High Court, the Court of Appeal concludes that removals to Rwanda are not themselves made unlawful by breaches of data protection law.
Fifth, as to procedural fairness, whilst the Court of Appeal finds that the Government needs to give guidance to caseworkers emphasising the need for flexibility in granting extensions to the seven-day time limit where fairness requires, they conclude that the seven-day period does not render the decision-making process “structurally unfair and unjust”.
The effect of the judgment
The result of the Court of Appeal’s judgment is that the High Court’s decision that Rwanda was a safe third country is reversed and that unless and until the deficiencies in its asylum processes are corrected removal of asylum-seekers to Rwanda will be unlawful.
The case is very likely to proceed to the Supreme Court. It seems quite possible that the Court of Appeal will itself grant permission, given the division between the judges. How long that will take is uncertain, but it will be at least a matter of months. In the meantime, given the court’s majority findings, it is clear that no removals to Rwanda will be possible.
Whatever the outcome at the Supreme Court, it also seems likely that the case would then proceed to the European Court of Human Rights, given that the case raises important questions of human rights law.