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High Court gives green light to appeals in Rwanda challenges
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On 16 January 2023 there was a High Court hearing to deal with all matters following on from its ruling published on 19 December 2022. You can you can read more about the case and its implications here and here. You can find a full copy of the judgment here, and a summary here.
The various claims in this case were heard on a ‘rolled up’ basis. This means that permission to apply for judicial review and the substantive merits of the grounds were considered at the same time. Permission was granted on all of the grounds advanced by individual asylum seekers and Asylum Aid.
Permission was refused to three organisations: the Public and Commercial Services Union, Detention Action and Care4Calais. The Public and Commercial Services Union was found to lack “associational standing” and the latter two organisations were refused permission to apply for judicial review because they did not have “surrogate standing”. The court held that individuals were better placed to bring the claims.
Permission to appeal
There were six separate legal teams at the September and October 2022 hearings and the court’s decisions on permission had the effect of eliminating two of them (SAA and AB). The grounds granted permission to go to the Court of Appeal are described below.
First, whether commitments made by the government of Rwanda (in the Memorandum of Understanding and Notes Verbales) provide a sufficient guarantee to protect relocated asylum seekers from the risk of refoulement and other Article 3 ill-treatment.
Whether the policy of deciding that asylum claims made by people who undertake dangerous journeys are inadmissible and removing them to Rwanda, in order to deter others from travelling irregularly to the UK to seek protection, is a good faith interpretation of the Refugee Convention and/or constitutes a penalty under Article 31.
Whether the Home Secretary’s use of a power to certify human rights claims as “clearly unfounded” in circumstances where her published assessment document had the effect of creating a presumption that Rwanda was safe was lawful. This turns on whether the Home Secretary was required to follow the Parliamentary procedure under the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to formally designate Rwanda as a safe country.
Whether the policy breaches retained EU law, namely Articles 25 and 27 of Council Directive 2005/85/EC (the Procedures Directive), which amongst other things requires (Article 27(2)) that rules providing for the removal of asylum seekers to safe third countries be “laid down in national legislation” and “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”. The Home Secretary’s argument, accepted by the High Court, is that these provisions ceased to be retained EU law because of the effect of section and Schedule 1 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.
And whether the decision-making process leading to removal to Rwanda is systemically unfair and/or was an unlawful impediment to access to the courts. Asylum Aid has taken the lead on this ground and was granted permission on it. This turns on what individual asylum seekers, as a matter of unfairness, should be able to make representations on in response to a notice of intention to remove to Rwanda. For example, the court found there was no requirement that they be allowed to make representations in relation to the general assessment that Rwanda is a safe third country. It also turns on what information must be made available to them for this purpose, whether the seven day period for responding is adequate, and whether they require a lawyer to make representations (surprisingly, the court found that they do not).
Permission was granted on these grounds on the basis that “there is some other compelling reason for the appeal to be heard” and not because the court considered the grounds “would have a real prospect of success” (CPR 52.6(1)). It is presently unclear whether any of the grounds that were refused permission to appeal will be renewed to the Court of Appeal.
Relief and costs
All generic grounds were dismissed on their merits. All of the clearly unfounded human rights certification decisions affecting individual asylum seekers were quashed. Most of the decisions that individual asylum claims were inadmissible were also quashed due to legal errors in the decisions.
The court decided that the individual asylum seekers who had one or more decisions quashed were the ‘successful party’ for the purposes of CPR 44.2(2)(a). It also accepted that each claimant only achieved partial success, and made percentage reductions costs orders ranging from 80% to 25% to reflect this. The individual claimants whose generic grounds were dismissed on their merits and whose individual decisions were not considered by the court had costs awarded against them (subject to legal aid protection).
The three organisations refused standing were ordered to pay the Home Secretary’s costs associated with the issue of standing. Asylum Aid was ordered to pay the Home Secretary’s costs of defending its claim, limited to a cap previously agreed.
The future of the litigation
It seems highly unlikely that the government will attempt a further removal flight until onward appeals are resolved. This means there will be an impetus for the Court of Appeal and potentially the Supreme Court to hear and decide the appeals quickly. If the government succeeds, issues concerning the compatibility of the policy with Article 3 will no doubt be pursued to the European Court of Human Rights.
In order to actually remove people to Rwanda, the Home Office will need to make legally defensible decisions in individual cases. And if Article 3 claims are not clearly unfounded, there will be statutory appeals to the First-tier Tribunal of the Immigration and Asylum Chamber. All of this suggests that the operationalisation of this policy, if it ever happens, will be left to the next government, along with a large backlog of unresolved asylum claims.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.