This post reflects on last week’s extraordinary Court of Appeal judgment on the Rwanda policy. You can read our initial take on this here.
Appeal to the Supreme Court
The government has already announced its intention to seek leave to appeal to the UK Supreme Court. The key issues that divide the Divisional Court and the Lord Chief Justice on the one hand, and the Court of Appeal majority (the Master of the Rolls and the Vice President) on the other are:
- First, the weight to be given to the diplomatic assurances given by the government of Rwanda in the Memorandum of Understanding (MoU) and Notes Verbales (NV).
- Second, the relevance of informal and informal reporting mechanisms on the implementation of the arrangement; and
- Third, the level of risk of people refused asylum in the Rwanda system being removed to countries where they face persecution.
The UK government’s case, accepted by the Divisional Court and the Lord Chief Justice, is that the court should attach significant weight to its expert institutional view that the government of Rwanda can be expected to comply with the good faith assurances it has given in the Memorandum of Understanding and Notes Verbales as to how asylum claims will be dealt with and how people removed under the arrangement will be treated. The Lord Chief Justice said:
“469. The Divisional Court has been criticised for saying that it would need “compelling” evidence to differ from the evaluation of the British Government. I think the description is apt to describe the approach of a court to the evaluation of a diplomatic assurance. The worth of a diplomatic assurance calls for an exercise of judgement in which the government has expertise and access to advice which a court does not have. A court is not institutionally well-equipped to make such a judgement…”
This has echoes of the Supreme Court’s judgment in Shamima Begum’s case, which allowed an appeal against a Court of Appeal judgment, observing that the Court of Appeal had “overlooked the limitations to its competence, both institutional and constitutional, to decide questions of national security” (para 109).
The Lord Chief Justice also attached significant weight to formal and informal monitoring arrangements. These include a Joint Committee made up of representatives appointed by both governments, the ability of RIs to communicate with lawyers and NGOs in the UK, and the presence of UNHCR in Rwanda. Overall, he concluded:
“515… I am satisfied… that the terms of the agreement, the strong incentives on the Government of Rwanda to deliver its side of the bargain, the general scrutiny under which all decision making will be made and the strong monitoring arrangements in place lead to a conclusion that the risks of wrong or perverse decisions are… low. My evaluation of all the evidence, only a part which has been referred to in the three judgments we are delivering, results in the conclusion that substantial grounds for believing that there is a real risk that deficiencies in the asylum system will lead to wrong decisions and refoulement have not been established.”
Finally, the Lord Chief Justice considered the risks of people being removed to countries where they face persecution, even if they are refused asylum under the Rwandan asylum process, to be low. The agreement requires Rwanda to consider, if asylum is refused, whether leave to remain should be granted on other humanitarian grounds and any other basis. It states that, if there is no prospect of removal from Rwanda for any reason, Rwanda will regularise that person’s immigration status in Rwanda. There are other, practical difficulties, such as the likelihood that those removed there do not have passports and the absence of return agreements, that suggest onward removal is unlikely.
The UK government may well fancy its chances of persuading the Supreme Court that the majority fell into error in its approach to the weight to be given to the government’s institutional expertise in assessing the likelihood of the Rwandan government delivering on its promises, the relevance of formal and informal monitoring mechanisms to this issue, and it may share the Lord Chief Justice’s view of the evidence that the likelihood of onward return to be insufficient to demonstrate the real risk required by article 3 ECHR.
Challenges to operationalising the Rwanda policy
Notwithstanding the above, the majority is comprised of two very senior and respected judges in the Master of the Rolls and the Vice President, and both judgments are exceptionally detailed and well-reasoned. Subject to the issues of principle identified above, an appellate court should be slow to interfere with their findings on the evidence and facts. The Supreme Court may well uphold their decisions.
Despite suggestions in news outlets (apparently based on briefings by government sources), if the government loses in the Supreme Court it would be unable to take its case to Strasbourg.
On the other hand, if the Supreme Court decides the case in the government’s favour, individual asylum seekers will be able to take their case to Strasbourg (indeed, one of the individual cases has already been communicated).
If the Court of Appeal’s majority decision is ultimately upheld, it is difficult to see how some of the structural problems identified can be resolved . For example, both majority judges identified and attached weight to the lack of independence in the Rwandan judiciary as a problem, in terms of onward appeals to the Rwandan High Court being a safeguard against deficiencies earlier on the asylum process. The UK government made the (one would think unattractive) argument that this was in the context of trials of political opponents. But the majority held that this lack of independence and susceptibility to executive influence suggested that Rwandan judges would be unlikely to interfere with decisions the executive government made on asylum claims.
Similarly, Rwanda is a one-party state, there is evidence that it perpetrates human rights abuses against its opponents, and there is evidence (that was before the court) that it has in the past arbitrarily killed refugees. The most recent US State Department report identifies credible evidence of ill-treatment including unlawful or arbitrary killings by the government; torture or cruel, inhuman or degrading treatment; arbitrary detention and harsh and life threatening prison conditions.
Even if ultimately the courts decide the issues around the Rwandan asylum system in the government’s favour, the issue of whether it would be consistent with article 3 (in particular, Soering) to send any individual asylum seeker to face these problems in Rwanda itself will very much remain live. There was evidence before the court (including from a UK government official) that in order to avoid ill-treatment those sent there would have to be compliant with the regime.
On this basis, all three judges agreed that the individual human rights claims made by the claimants should not have been certified as “clearly unfounded”. This means that they should have been allowed to appeal to the First-tier Tribunal, which would mean that a wider range of evidence could have been considered (e.g. from country experts) and properly tested (e.g. by cross examination).
The Illegal Migration Bill
None of the judges disagreed with the underlying principle of the Rwanda policy that it is consistent with the Refugee Convention and the ECHR for asylum seekers to be removed to a safe third country to have their asylum claims decided there.
This principle underpins the Illegal Migration Bill currently before Parliament. Rwanda is listed as a safe country in Schedule 1, but there would still need to be assessment in individual cases whether it is safe for any given individual (see confirmation by Lord Bellamy, Hansard, 5 June 2023, Column 1233).
Rwanda should really now be removed from the Schedule 1 safe country list and only reinstated if it is found by the Supreme Court to be found at a general level safe for asylum seekers. As it stands, in light of the Court of Appeal’s judgment, the Home Office could not lawfully decide that Rwanda is safe for any individual asylum seeker to be removed there under the terms of the current agreement with the Rwandan government.
In terms of the Bill’s machinery, the risk of refoulement should qualify as “serious and irreversible harm” under section 38(4). This should lead the Secretary of State to decide that the serious harm condition is met under section 41, such that a claim based on the judgment would be suspensive of removal. The Bill provides for a right of appeal to the Upper Tribunal against any decision that the serious and irreversible harm criterion is not met (section 43), with permission to appeal required if the Secretary of State certifies any such claim as clearly unfounded (section 44). Presumably, the Upper Tribunal could convene a country guidance style procedure for deciding whether the test is met for asylum seekers as a class in relation to the issue of whether they can or should be expected to be compliant with the Rwandan regime in order to avoid ill-treatment.
Some commentators have argued that “offshoring” asylum claims (i.e. the UK deciding asylum claims of any people removed) offers a route around the Court of Appeal’s decision. In the context of Rwanda, this could address the Rwanda asylum system issue. But it would not address the other article 3 Soering issue of the risks to people who are not compliant with the Rwandan regime.
It is unclear why Asylum Aid did not succeed in its appeal. The evidence before the court suggested that there was an unpublished policy or practice of exercising flexibility in the timetable for responding to notices of intent and Underhill LJ held that there had to be a published flexibility policy. Based on the Supreme Court’s judgments in Lumba and A, this should really have been sufficient to establish illegality in the system.
On retained EU law, the court’s decision that the Procedures Directive is not retained EU law is inconsistent with the Supreme Court’s decision in G v G. The Court of Appeal decided that the wording in the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (ISSCA) was sufficiently broad. Underhill LJ accepted
“that the Parliamentary materials… strongly suggest that the Government… did not at the time that the bill was going through Parliament have any specific intention that EU-derived rights… would include rights of asylum seekers” (para 364).
But he held that the relevant question was whether the government specifically intended that rights deriving from EU asylum law should fall outside ISSCA’s scope and, as no such intention could be discerned from the materials, rights derived from EU asylum law were caught. Given that its decision is inconsistent with G v G and the approach to the revocation of rights by broad language where specific ontention to revoke the rights in issue could be discerned from the Parliamentary materials, it seems likely that this issue will be considered by the Supreme Court.
In relation to the issue of whether removal to Rwanda under the policy constitutes a penalty under Article 31 of the Refugee Convention, although the claimants were unsuccessful on this point, there is some helpful commentary in Underhill LJ’s judgment at paras 327-328 to the effect that the provision is not confined to criminal sanctions and could potentially include obstructions to processes for deciding refugee status.
Interim relief and Rule 39
The government and its supporters persist in their position that Strasbourg’s Rule 39 indication which put a stop to the June 2022 flight was in some way arbitrary or aberrant, and justifies attempts to reform the court’s procedures and legislation that would specifically empower ministers to disregard Rule 39 indications.
But standing back from how the Rwanda litigation has unfolded, on any view it is the decision of the UK courts on interim relief that was aberrant. First, the decision was based on the time period between removal and the determination of the case being limited. That estimate was always wholly unrealistic and has been shown to be. Second, the individual decisions that led to removal were found to be unlawful by the Administrative Court and were quashed. If the High Court’s interim relief decision had stood and removals had gone ahead, all of those individuals would have had to have been brought back. Third, and most importantly, the Court of Appeal has decided outright that removal of any asylum seeker to Rwanda would have violated article 3 ECHR. The disastrous consequences of a wrong decision in the article 3 context is why in removal cases, conventionally, the balance of convenience falls in favour keeping a person here while a claim is considered on its merits.
The Court of Appeal’s judgment is a vindication for the rule of law and human rights. It is also a vindication for UNHCR, whose courageous, expert intervention has proven decisive.
All this said, there may be a route for the government to successfully appeal to the Supreme Court and, with the Illegal Migration Bill going through Parliament, the battle is far from over.