Yesterday, the Court of Appeal handed down a judgment dealing with applications for permission to appeal on grounds refused by the High Court. An annex to yesterday’s judgment lists the grounds granted permission by the High Court.

Permission to appeal

The additional grounds granted permission in yesterday’s judgment include:

First, that the High Court was mistaken in its interpretation and application of the test from the case Ilias and Ahmed v Hungary [2017] ECHR 255 when deciding whether the Home Secretary carried out a sufficiently thorough examination of the adequacy Rwanda’s asylum system. In particular, it is argued that the High Court conflated the Ilias duty with the common law duty of inquiry (Tameside) and adopted an approach that was wrong in law to evidence from the Home Secretary, the UNHCR and unsworn material provided by the Rwandan government.

Second, that the High Court was mistaken in concluding that the Home Secretary’s published country policy and information note (CPINs) on the Rwandan asylum system and/or individual inadmissibility decisions complied with the common law (Tameside) duty of inquiry. In particular, it is argued that the High Court decided this issue by reference to the wrong point in time, namely the later, July 2022 inadmissibility decisions rather than the date of the CPIN. And it is argued that the Home Secretary could not make a reasonable decision in relation the risk of onward removal to a place where individual asylum seekers would face a real risk of persecution or ill-treatment (refoulement) without attempting to investigate and assess past breaches (in particular, the fate of refugees removed to Rwanda under the Rwanda/Israel arrangement).

Third, that the High Court was mistaken in its approach to the “Soering test” (Soering v UK [1989] ECHR 14) to whether asylum seekers relocated to Rwanda faced a real risk of onward removal to a country where they faced a real risk of persecution of ill-treatment (refoulement) or Article 3 ill-treatment due to conditions in Rwanda.

Fourth, that the High Court was mistaken in failing to address a number of points that were advanced that the removal of asylum seekers to Rwanda would breach legislation partially incorporating the Refugee Convention into UK law (section 2 of the Asylum and Immigration Appeals Act 1993). The High Court had already granted permission to argue that the Rwanda scheme is inconsistent with a good faith interpretation of the Refugee Convention and constitutes a penalty in breach of Article 31 of the Refugee Convention. In granting permission to appeal on this ground, the Court of Appeal will consider additional ways in which it is argued the Rwanda scheme breaches the Refugee Convention (e.g. that Rwandan law excludes refugee status on the basis of prosecution for any non-political felony contrary to Article 1F; and fails, contrary to Article 15, to accord refugees the most favourable treatment accorded to nationals of a foreign country).

A number of other grounds were refused permission to appeal, including grounds concerning the lawfulness of unpublished operational guidance which provided that people selected for the first removal flight should not have “significant vulnerabilities or safeguarding concerns” and meet the criteria for detention in published detention policies.

The Court of Appeal deferred its decision on whether to grant permission on a data protection focussed ground to the full hearing.

Intervenors

The UN High Commissioner for Refugees has been granted permission to intervene. An application by the UN Special Rapporteur on trafficking in persons, who did not intervene in the High Court, has also been granted.

The full hearing

The Court of Appeal’s decisions on permission mean that all of the key points on why the Rwanda scheme breaches human rights law (in particular, Article 3 ECHR), the Refugee Convention and common law fairness safeguards will be considered by the Court of Appeal. The full hearing has been listed to take place over four days on 24-27 April 2023.

The Illegal Immigration Bill

A number of the grounds under consideration would be affected by changes made by the Illegal Immigration Bill. And if other grounds go against the government, it could still seek to force through its Rwanda policy by passing further domestic legislation, potentially setting up a major clash with the European Court of Human Rights. As for compliance of UK legislation with the Refugee Convention, another contracting state would need to make a request to the International Court of Justice under Article 38 for that court to be able to decide the issue.