The High Court has concluded in the case of AAA and others v Secretary of State for the Home Department [2022] EWHC 3230 (Admin) that the UK government’s Rwanda plan is lawful. The individual decisions in the case were inadequate and will need to be re-made, but that is no obstacle to the plan proceeding.

However, an appeal by the claimants is inevitable, so the High Court judgment is not the last word. The Court of Appeal is likely to look at the case, as is the Supreme Court. The timescale for final resolution of the case is therefore unknown. In the meantime, removals to Rwanda cannot begin because of the interim measure issued by the European Court of Human Rights, which states that removal cannot take place “until 3 weeks after delivery of the final domestic decision in ongoing judicial review proceedings”.

Before going further, a quick recap of what the Rwanda plan actually is. The idea of the Rwanda plan is that a small number of asylum seekers will be removed from the United Kingdom to Rwanda and that their asylum claims will be assessed there in accordance with Rwandan law. It may well be genuine refugees who are removed, from countries such as Afghanistan and Syria. The United Kingdom’s responsibilities to those removed ends as soon as they touch down in Kigali. If those who are removed are granted asylum in Rwanda, they will stay there. If they are refused asylum Rwanda will be responsible for removing back to their country of origin. Contrary to the assertions of numerous politicians, there is no route back to the UK for those who are removed. The idea is that by doing this to some refugees, other refugees will be deterred from trying to come to the UK to claim asylum.

You can read the Memorandum of Understanding on which the plan is based here.

Was it lawful to conclude Rwanda is a safe country?

The court was not determining for itself whether Rwanda is a safe country or not. Instead, the court was deciding whether the Home Secretary’s decision that Rwanda is safe was a lawful one. To show that it was not a lawful decision, the claimants would have had to demonstrate some sort of legal flaw in the decision or the decision making process, such as taking account of an irrelevant consideration, or the decision being so unreasonable that no rational Home Secretary could have reached the same conclusion. Whatever an outside observer’s view might be of these questions, this is not an easy type of challenge to win.

The court held that the Home Secretary had made a lawful decision because she had conducted a “thorough examination” of “all relevant generally available information”, the standard set for this type of exercise by the European Court of Human Rights in the case of Ilias. The Senior Legal Officer at UNHCR, Mr Bottinick, had criticised various aspects of Rwandan asylum process. Criticisms of the country information underlying the Home Secretary’s decision were also made by the Asylum Research Centre. Ultimately, the court declines to engage seriously with any of these criticisms on the basis that all the Home Secretary had to do was thoroughly examine available information. The court’s approach is to sidestep the issue rather than address it. Whether that is itself lawful remains to be seen on appeal.

One of the fundamental planks in the Home Office case was that the Memorandum of Understanding with Rwanda and the associated Notes Verbales meant that, irrespective of how other refugees might be treated in Rwanda, the ones removed by the UK there would be treated properly. The Home Office assessment was that Rwanda would honour the obligations in the agreement. The court decided that “we could go behind this opinion only if there were compelling evidence to the contrary”. No such evidence existed, the judges concluded. Given no removals have yet taken place, the evidence relied on by the claimants took the form of evidence of past behaviour by Rwanda and opinion evidence as to future behaviour.

Looking to the past, the fact that a deal between Israel and Rwanda had led to refugees not being provided with support and departing from Rwanda shortly after arrival had not been investigated by the UK government. The court concluded this lack of investigation was permissible.

Looking to the future, UNHCR took the view that

in the light of history of refoulment and of defects in its asylum system, Rwanda could not be relied on to comply with its obligations under that Convention and, by extension, would fail to comply with the obligations it had assumed under the MOU and Notes Verbales.

Para 69

The judges observed that this opinion was on the face of it contradicted, at least to some extent, by previous public assessments of Rwanda by UNHCR (para 70). The judges show no awareness that UNHCR walks a very fine line. Public criticism of a country that hosts refugees is highly problematic because it risks the government taking the huff and disengaging from UNHCR. The same is also true of countries that fund UNHCR programmes. UNHCR has always had two faces, but for arguably good reason. They have perhaps been hoist by their own petard here, because the judges cannot be expected to know this on their own and the lawyers representing UNHCR could hardly say this, nor perhaps could the lawyers representing the claimants.

Evidence might later to emerge after some removals take place that Rwanda has breached its obligations. That would be too late for those treated as guinea pigs who had already been removed but might potentially be sufficient to prevent further removals. Given the amounts of money at stake, perhaps the Rwandan government will do its utmost to comply, though.

Finally, the claimants pointed to the Rwandan government’s intolerance for dissent. When refugees had protested their treatment at a camp in 2018, the Rwandan police are reported to have suppressed the demonstrations with excessive force and fired on and killed some refugees. The court “did not consider that direct inference can be drawn from the events at Kiziba refugee camp in 2018” because the court had already concluded that the agreement with Rwanda would be honoured and therefore refugees removed to Rwanda under that agreement would have nothing to protest about.

The fact that some of those facing removal to Rwanda, a country with which they have no connection whatsoever, had already protested at their treatment here in the UK was perfunctorily dismissed:

We do not consider that much weight attaches to these matters, per se.

Those removed would not be detained and would be treated in accordance with the UK-Rwanda agreement, so there was apparently nothing to protest about. They also had no opinions critical of the Rwandan authorities, so once more there was apparently no need for any protests. The idea that there might be some sort of future protest was “speculative”, “does not rest on any evidence of any presently-held opinion” and there was no suggestion “that any of the individual Claimants would be required to conceal presently-held political or other views” (para 77).

Remarkably, the judges then go on to criticise the claimants submissions because it “assumes that the response of the Rwandan authorities to any opinion that may in future be held by any transferred person would (or might) involve article 3 ill-treatment.” Well, yes and no. The claimants submission was no doubt that there was a real risk that such treatment might occur given the proven record of the Rwandan authorities in repressing dissent. The judges suggest that the UK-Rwanda agreement would protect those removed, as would the Monitoring Committee and the Joint Committee.

There is simply no evidence to suggest that the UK-Rwanda agreement would act as a shield. This is uncharted territory and the agreement nowhere specifically provides for a right to protest or protection against ill-treatment.

Does the Rwanda plan breach the Refugee Convention?

The Refugee Convention is partially incorporated into UK law by section 2 of the Asylum and Immigration Appeals Act 1993, which provides that “nothing in the Immigration Rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the [Refugee] Convention”. The claimants argued that the Rwanda plan was contrary to two provisions of the Refugee Convention.

Article 31, known as the non-penalisation clause, provides that penalties should not be imposed on refugees on account of their illegal entry or presence, subject to certain conditions being met. The claimants argued that removing people to Rwanda as a deliberate policy of deterrence amounted to a penalty.

One problem for the claimants here was that the Dublin system of returns has never been held to be contrary to the Refugee Convention. There are significant differences in principle and in practice between the Dublin system and the Rwanda deal, but the basic idea is arguably comparable.

The other problem is academic analysis of the intentions of the drafters of the Refugee Convention. Drawing on key writers on the Refugee Convention — Zimmerman, Hathaway and Weis — the judges conclude that there is a “clear consensus” that Article 31 was not intended to and does not prevent a state from expelling a refugee (para 125).

Article 33, the non refoulement clause, states that no signatory state “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened”. The arguments here might be that Rwanda itself would threaten life or freedom (direct refoulement) or that Rwanda would send the refugee on to somewhere that might do the same (indirect refoulement). The judges had already earlier in the judgment concluded that Rwanda is a safe country (as long as you do not protest) and that it will properly determine asylum claims in accordance with the UK-Rwanda agreement. This argument was also therefore rejected.

There is also an explicit non-expulsion clause: Article 32. But the claimants made no reference to this, presumably because it only prevents the expulsion of a refugee where the refugee is lawfully present. In ST (Eritrea)[2012] UKSC 12, the Supreme Court held that an asylum seeker, even if registered as making an asylum claim, is not lawfully present until they have received a grant of leave to remain.

The claimants also argued that the Refugee Convention imposes an implicit obligation on states to determine all asylum claims made within their jurisdiction. There is no explicit provision to this effect and the judges rejected the argument. The Refugee Convention was only the second UN convention negotiated and agreed — it came at the very start of the new era of international law — and it has to be said that it is a bit light on obligations and enforcement.

Discrimination

An interesting argument that the Rwanda plan discriminates against young men on the basis of sex and age and against certain nationalities was also rejected.

All the claimants except one were young men and the judges accepted that “at least in the short term, the category of young men is the most likely to be the subject of removal decisions” (para 154). On nationality, those selected for removal to Rwanda were predominantly from Iraq, Iran, Syria, Sudan and Afghanistan.

The ‘dangerous journeys’ criterion which lies at the heart of the inadmissibility guidance and the Rwanda plan was held to be justified. It pursues a legitimate objective, the judges found, which was “to protect refugees from exploitation by criminal gangs who, for example, organise the small boat crossings” (para 154). A strange way of protecting anyone, some of us think, but judges take these sorts of statements at face value. It was not specifically directed to young men and including an exception for families was considered permissible.

The judges held that it was not unlawful for the Home Secretary to make special provision for refugees coming from Ukraine and therefore there was no nationality discrimination.

Procedural fairness

The claimants needed to be afforded a chance to explain why they had not claimed asylum in countries through which they had passed and a chance to explain why Rwanda was not a safe country for them in particular. The court held that they had been given an adequate opportunity on both fronts.

The court also held that procedural fairness did not require the claimants to be provided with legal representation. This seems surprising given the life-changing consequences to the claimants and the complexity of the legal issues. The judgment is 139 pages long, after all. The court’s justification is that this is all a matter of fact, not law:

It is essentially a matter of fact as to why he did not claim asylum in a third country on route to the United Kingdom. It is essentially a matter of fact for him to give his reasons why he should not be removed to Rwanda.

That does not seem like a robust finding to me. It is also surely irrelevant (obiter, as lawyers say) on the facts of the individual cases, given everyone had eventually been able to find a lawyer. This was due to superhuman and probably unrepeatable efforts of the charities and legal firms supporting the claimants, though.

But the court likes to have it both ways and goes on to find that the organisations bringing a general challenge to the policy either had no standing or were simply repeating points made by the individual claimants and should not have bothered. That is self evidently not true, at least on this issue.

It was the Public and Commercial Services Union, Detention Action and Care4Calais who were found to have no legal standing, according to the principles laid down in R (Good Law Project and others) v Prime Minister and others [2022] EWHC 298 (Admin). In a recent piece I wrote on strategic litigation, I discussed the potential danger that ambiguities in the law might be resolved in an unhelpful rather than helpful way. That may be the case with legal standing and the Good Law Project case. The standing of Asylum Aid was not questioned but after several paragraphs addressing their submissions the judges rather seem to contradict themselves by finding that no separate issues were raised (see para 427-429).

Technical legal issues

I’m old enough to remember when the Nationality and Borders Bill had to be rushed through Parliament in order to use it for the Rwanda plan. But the government did not actually wait for the new law to come into effect before starting the attempts to remove to Rwanda. Instead, reliance was placed on some safe third country provisions in the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The claimants argued the 2004 Act could not be used for implementing a plan of this nature. The judges concluded it could (para 84). BUT, as I explain below, it may prove to be the case that the new law would have been a more legally secure way of carrying out the removals.

The judges also rejected a legal argument on the interpretation of the Immigration Rules, which were, as ever, very badly drafted. The language was “somewhat awkward”, the judges concluded, but the meaning and intent was tolerably clear.

A challenge to the lawfulness of the inadmissibility guidance under which the Rwanda removal decisions were made also failed, as did arguments that the decisions were contrary to retained EU law, that the deal was contrary to data protection laws, that the Treasury should have approved the deal given the public money at stake and that the public sector equality duty had ben breached.

Individual decisions

Reading the sections of the judgment on the individual decisions is jaw dropping. These decisions were critical to a flagship government policy in which the Prime Minister and Home Secretary had invested huge political capital. It was therefore vital to get these decisions right, and there was plenty of time to do so. The decisions were made in June 2022. The agreement with Rwanda was signed in April 2022 and, obviously, the Home Office as an institution knew what was planned even before that. There would also be plenty of cases from which to choose in order for the government subtly to select the strongest (from their perspective) cases. This is not a luxury enjoyed by claimant lawyers, I might add. The facility of government to pick and choose which cases go to court is a very powerful one.

It would normally be considered astonishing, then, that the actual decisions were so incredibly shoddy. It tells you everything you need to know about Priti Patel’s Home Office. Presumably, Patel ordered that removals take place immediately, insufficient preparation had been done and there was such a rush that mistakes were made.

And what mistakes. The facts of the cases were “accidentally transposed” as the judges put it (para 180). Basically, the Home Office officials mixed up which refugee was which. Easy to do, when they are all just a dehumanised blob to you. Can you imagine getting a letter telling you that you will be sent to Rwanda, and the letter puts words into your mouth you never said because officials have confused you with someone else?

On top of that, the Home Office ignored or overlooked the representations that were made on behalf of several of the refugees. This was in part because Home Office managers had seen fit to allocated the cases simultaneously to to caseworking units in different parts of the country. Parts of the cases were worked by officials in Glasgow and other parts of the cases were worked by officials in Croydon (para 181). When material was sent to the Home Office to be considered, it was not properly shared between the two teams.

If managers had been trying to invent a system most likely to lead to unlawful decisions, they could not have done much better.

Something else becomes apparent as one reads the conclusions on the individual cases. In many of them, quite a lot turned on the application of paragraph 345A(iii)(b) of the Immigration Rules, on why the person concerned did not claim asylum in a safe third country en route to the United Kingdom (e.g. para 213, 259, 284, 309, 358, 389). The relevant sub paragraph read as follows:

An asylum application may be treated as inadmissible and not substantively considered if the Secretary of State determines that…

(iii) the applicant could enjoy sufficient protection in a safe third country, including benefiting from the principle of nonrefoulement because:

(a) they have already made an application for protection to that country; or

(b) they could have made an application for protection to that country but did not do so and there were no exceptional circumstances preventing such an application being made, or

(c) they have a connection to that country, such that it would be reasonable for them to go there to obtain protection.

This was part of the trigger for the inadmissibility process, which in turn led to removal to Rwanda. Given the terms of the rule, procedural fairness demanded the opportunity to make representations (para 390). The Home Office needed to give a reasoned response to any issues raised by each claimant. Neither was a high bar to meet, frankly, but these procedural requirements were a barrier of sorts. But they were a barrier of the Home Office’s own making. I use the past tense here because the Home Office has since then scrapped that part of the Immigration Rules.

For asylum claims made on or after 28 June 2022, the relevant law is the Nationality and Borders Act 2022, particularly section 80B. This is worded differently to the old paragraph 345A(iii)(b) and the relevant part reads:

An asylum claim that has been declared inadmissible … may nevertheless be considered under the immigration rules … if the Secretary of State determines that there are exceptional circumstances in the particular case that mean the claim should be considered.

It is not clear to me that the consideration required here is as detailed as under the old immigration rules. In other words, had the government waited for its own custom-designed law to take effect, it might have found removals were easier to carry out. The government would have needed to wait just three weeks; the decisions under challenge were made on or after 8 June 2022.

More haste, less speed.

Tone of the judgment

I’ve got a couple of gripes about the tone of parts of the judgment. Non lawyer readers can look away now.

The judges are critical of the way the multiplicity of cases were pleaded and suggested that over-long and overlapping skeleton arguments “made it significantly more difficult for counsel to present their cases clearly and effectively”. The huge pressure piled on the lawyers by the wildly careening Home Office juggernaut and the sheer number of cases is not something the judges see fit to mention, unfortunately. No equivalent criticisms are made of the Home Office or its legal teams despite the fact amended decision letters were issued after the removals were due to have taken place and new evidence was submitted after proceedings had begun. All we see, for example, are neutral statement like “the information available to the Home Secretary … has expanded during the life of this litigation” (para 46) or “the Home Secretary revised her position” (para 387). As is often the case, the judges seem oblivious to the double standards of their expectations.

There’s also some quite frankly weird and ill-informed criticism of the claimant lawyers using the word “refoulement” to describe different removal scenarios (para 54). That is the whole meaning and purpose of the word: to cover a range of different scenarios whereby a person is removed directly or indirectly to a situation where they face serious harm. It is an umbrella term. If the judges have a beef with the drafters of the Refugee Convention and with over 70 years of international law, they should just say so. Blaming the lawyers makes the judges look ignorant.

The judges are very careful to remind everyone of their own particular role in proceedings at paragraph 5:

The court is not responsible for making political, social or economic choices – for example to determine how best to respond to the challenges presented by asylum seekers seeking to cross the Channel in small boats or by other means.

That is all right and proper. But it rankles rather that the judges saw fit to lay into the claimant lawyers for doing their jobs.

What next for the Rwanda plan?

The next step is appeals. While appeals remain ongoing, the position at present is that no-one will be removed to Rwanda. The claimants will doubtless appeal the substance of the decision that, in principle, the Rwanda plan is lawful and that Rwanda is a safe country. The Home Office will perhaps decline to cross appeal on the individual decisions; it is easier to simply issue new ones that are better drafted than the originals.

I imagine the appeals will be expedited. We may even see an attempt to leapfrog the Court of Appeal and head straight to the Supreme Court. This seems unlikely; the High Court decision is so long and diffuse that the Court of Appeal would as ever act as a useful lens to narrow and focus the issues prior to the Supreme Court getting stuck in. Given the highly deferential approach of Lord Reed’s Supreme Court in previous challenges to government policies and decisions, it seems quite likely the government will ultimately win.

An appeal to Strasbourg may be possible given that human rights issues are at stake. Strasbourg hearings can be expedited but whether this one would be is unknown.

The government might explore amending or lifting or simply ignoring the interim measure to enable removals to proceed even before the appeal process is concluded. I’ve no idea how likely that is.

There is another dimension here, which is that the decisions dealt with in this case were made under an old law that has since been superseded. Some legal commentators have been suggesting that the government’s victory is a Pyrrhic one because the level of detailed consideration required in individual cases is so high. As I explained earlier, that is not necessarily the case under the new law, the Nationality and Borders Act 2022, under which any new removal decisions would be made.

For what it is worth, I have always thought that a small number of people will be removed to Rwanda at some point. I could be wrong for two reasons. One would be that the claimant’s win the legal challenge. I’m not optimistic. The other reason would be because the government runs out of time before the next election. That is plausible.

Whatever happens, it is unlikely that more than a relatively small number would ever be removed, though. Firstly, Rwanda has indicated so far that it will accept a few hundred per year. That figure could rise or further deals might be reached but there is no sign of either eventuality at present. Secondly, the Home Office is pretty terrible at removing anyone anywhere at the moment. On past form, the idea that the Home Office can remove sufficient number of people to Rwanda to act as a deterrent to others seems implausible, although not perhaps completely impossible. Over 85,000 people have arrived in the UK to claim asylum in the twelve months ending September 2022. My assumption, which might be proven wrong, is that once this policy has been carried out on a few very unfortunate refugees, it will be quietly abandoned by the Home Office. Apart from anything, the Home Office always abandons its various enforcement policies. They just can’t sustain anything.

A lot of time, energy and money has been put into this Rwanda plan. It has acted as a distraction from the asylum backlog and other issues. Yet it seems to have escaped everyone’s notice that removals of actual failed asylum seekers to their own countries has reached an historic low. A total of 113 failed asylum seekers were removed in the whole of 2021 (see Returns – Summary Tables, table Ret_05, published 26 May 2022). The numbers have risen slightly since then, but not a lot. Why put all this effort into removing a small number of genuine refugees to Rwanda rather than actual failed asylum seekers back to their own countries?