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Court of Appeal rejects Rwanda injunction appeal: judgment transcript

Court of Appeal rejects Rwanda injunction appeal: judgment transcript

Below is an unofficial partial transcript of the Court of Appeal’s judgment refusing interim relief (an injunction) in the case of Public and Commercial Services Union and Others v Secretary of State for the Home Department. This was one of two cases heard and decided today which sought to pause the removal of refugees to Rwanda pending full legal arguments on the legality of that policy.

In the last few minutes, an injunction in the second case, Asylum Aid┬áin the High Court before Mr Justice Swift, has reportedly been refused. So those seeking to resist removal on tomorrow’s flight will need to rely on the outcome of urgent individual challenges. Many of those individual challenges have succeeded in securing a temporary stay on removal and it remains to be seen whether there will be anyone left to send tomorrow.

The Court of Appeal judgment below was delivered orally at around 3.30pm this afternoon; the video is on YouTube. It took almost an hour to read out, so we only include here the final ten minutes or so, giving the court’s reasons for dismissing the appeal. It naturally refers a great deal to the original High Court judgment of 10 June under appeal, but unsatisfactorily that judgment has not yet been published.

Lord Justice Singh said:

We consider that the judge produced a detailed and careful judgment, which is all the more impressive in view of the time constraints under which he had to give it, late on a Friday afternoon after a day’s argument in this urgent and important case. In our view, the judge directed himself correctly as to the relevant principles on the grant of interim relief, both generally and in public law cases of this kind. He did not err in principle, nor did he fail to take into account all relevant considerations. We do not accept the submission that his conclusions were plainly wrong or irrational. We consider that they were reasonably open to him on the material before him.

We do not accept ground one on this appeal. At the end of the day, the fact is that the judge accepted that there were some serious issues to be tried. We do not consider that it would be appropriate to go into whether some grounds of challenge were both compelling [?]. But in any event, we do not disagree with the judge about his overall assessment of the strength of those grounds at the end of paragraph 26 of his judgment.

We note that the proceedings before the High Court are at a very early stage. They were commenced on 8 June. In view of the urgency, it has not been possible for the usual steps to be taken, for example, the filing of summary grounds of resistance. The judge ordered there to be a rolled-up hearing before the end of July, by which time the respondent will have had the opportunity to file detailed evidence. It is not for us to anticipate what the High Court will finally decide after the substantive hearing after it has been able to assess all of the evidence in the round. Although Mr Husain [counsel for the appellants] submitted in his reply before us that public law grounds are inherently grounds of law, it is often the case that they turn on detailed assessment of evidence. In the present case we consider that will be true, for example, in relation to the capacity of Rwanda to cope with asylum claims, the provision of interpreters and legal advice, and so on.

In any event, we do not accept that it is for this court, sitting on an appeal, to go behind the judge’s assessment of the evidence. Although he had limited time in which to consider the evidence, he had the advantage of seeing it all and had a day’s hearing before him on Friday. As is usually the case on an appeal, this court, properly, was shown only part of the evidence. But in any event, it is not the function of this court to substitute its own view for that of the judge on factual matters.

Having identified that there were serious issues to be tried, the judge went on to consider the balance of justice question. That is the critical question on which the present case turned. As we have said, in our view, the judge conducted that balancing exercise in a way that cannot be impugned by this court on appeal.

We consider that, on analysis, the principal ground of appeal before us is indeed ground 2. The starting point for his assessment was that the interim period will be relatively short: about six or seven weeks, until around the end of July. He was right to take that view. We do not accept the submission that the judge was obliged to take into account the possibility of appeals and further delay after the judgment of the High Court has been given after the substantive hearing. The hypothesis for the appellant’s case must be that they will succeed at the substantive hearing. On that basis, as the judge noted, the individual claimant would on his own case be entitled to be returned to the UK. If there were then an appeal, as the judge observed, it will be a matter for the appellate court to determine what the next step should be, for example, whether any interim relief should be granted pending an appeal. Given, therefore, that the interim period would be relatively short, the judge was entitled to take the view that it was unlikely that the individual claimants before him would be improperly returned to another state by the Rwandan authorities in that timeframe. To suggest otherwise is indeed, as the judge noted, speculative.

Furthermore, in that context, the judge was entitled to give weight to the MOU [memorandum of understanding, between the UK and Rwanda] and note verbale. They may not be legally enforceable, even as a matter of international law. But they are formal agreements between sovereign states. The UK will expect Rwanda to comply with them and the Rwandan authorities will know that their conduct will be under scrutiny in the particular context of people who have been removed there by the UK pursuant to the arrangements between the two countries. The judge did not need to be ‘sure’, as has been submitted, that the MOU will be implemented. This was something to which he was entitled to give weight. And as Mr Dunlop [counsel for the Home Office] reminded us, questions of weight are not for this court on an appeal in cases such as this.

Turning to the position of the UNHCR, the judge did give respect to their unique position and institutional expertise. He considered their views but was not bound to follow them. The fact is that in the context of the relatively short interim period which the judge was considering, the evidence for the UNHCR did not lead to the conclusion that it was likely that an individual claimaint would be improperly returned to another state without further consideration of their asylum claim in Rwanda in the brief interim period. There simply would not be time for all of those steps to be taken, especially in the circumstances we have already described above in which the MOU and note verbale are in place.

In those circumstances, since the only individual claimant now before us cannot obtain interim relief, it is unnecessary to consider ground 3. In any event, we agree with the judge that applications for interim relief in this context must be considered on an individual basis and not on a generic basis. Otherwise the respondent could be prevented from implementing her policy of removal even in a case there is no legal defect in the individual decision-making process at all. In this context, we bear in mind that, as recent events have shown, the Secretary of State continues to consider each case on its individual facts and has been prepared to revoke removal directions in a number of cases while these proceedings have been taking place, and even over the weekend since the judgment below was given.

We return to the fundamental point in this case, which turns on how the judge dealt with the balance of convenience. In our judgment, he conducted that balancing exercise properly. He did not err in principle in the approach which he took. He weighed all the other relevant factors on each side of the balance. He reached a conclusion which he was reasonably entitled to reach on the material before him. This court cannot therefore interfere with that conclusion.

For the reasons we have given, this appeal is dismissed.

The court went on to refuse permission to appeal to the Supreme Court.

This article has been updated to add the result of the Asylum Aid application.

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.