When I was about ten years old, my school took time out of the timetable so that everyone could observe a total solar eclipse that was taking place that day. The teachers heavily emphasised that this was a once-in-a-lifetime event and that we would probably never see one again. I have since seen two more total solar eclipses, which is a rate of one every ten years. This is apparently the same rate as that of the Lord Chief Justice of England and Wales being in the minority in a ruling of the Court of Appeal – it happened in July 2013 in the case of R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961B, and then again in June 2023 in the case of AAA and others v. The Secretary of State for the Home Department [2023] EWCA Civ 745.
In a majority decision on the above case on 29 June 2023, the Court of Appeal found that the UK government’s controversial plan to send asylum seekers to Rwanda is unlawful on the basis that Rwanda is not a safe third country. The court’s ruling was a majority verdict, with the Master of the Rolls, Sir Geoffrey Vos, and the Vice-President of the Court of Appeal Civil Division, Lord Justice Underhill, in the majority and the Lord Chief Justice, Lord Burnett, dissenting. This follows from the High Court’s previous ruling in December 2022, which found that while the plan itself was lawful, each individual claimant in the case could not be removed to Rwanda because the government had not followed the appropriate procedures.
The legal precedent for this challenge is found in the case of Soering v United Kingdom (1989) 11 E.H.R.R. 439, where the court found that asylum seekers could not be removed if there were substantial grounds for believing they would suffer inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights (ECHR). As long as it remains a signatory to the ECHR, the UK government cannot simply legislate its way out of its human rights obligations, while derogation from the convention is extremely hard to justify.
In their written judgements, both the Master of Rolls and Lord Justice Underhill held that, applying the test from Soering mentioned above, Rwanda was not a safe country for the processing of refugees. While it may be surprising to some that a state whose government is accused of extra-judicial executions of political opponents, arresting dissidents on trumped-up charges and sending mercenaries into neighbouring countries, is not considered to be safe, the judges specifically held that deficiencies in Rwanda’s asylum system mean that they are not yet capable of sorting genuine refugees from non-genuine refugees. These issues include problems with how asylum interviews are done, lack of skill and experience by decision-makers, lack of access to legal assistance, and the inexperience and history of bowing to government pressure of the Rwandan judiciary. This led the two justices to rule that the risk of genuine refugees having their Article 3 rights breached by being removed to countries where they may be persecuted is too high. The other grounds of appeal, which will be addressed later, were all dismissed. The Prime Minister, Rishi Sunak, has already stated that the government will seek to appeal the ruling to the Supreme Court.
As mentioned above, the original High Court ruling found the policy to be lawful. As I wrote at the time, the caveats to that ruling (namely that the procedural process required for each case to proceed lawfully is so burdensome and expensive that the policy becomes impossible to implement) mean that the Court of Appeal’s decision makes little practical difference to the question of whether people were going to be removed to Rwanda. It is noticeable that the government has not appealed those aspects of the High Court judgement. This means that, as things stand, it is very unlikely that people will be removed to Rwanda, regardless of the Supreme Court’s ruling.
On the subject of an appeal to the Supreme Court, while there is a good chance that it will find in favour of the government, it is likely to take at least six months before there is a hearing and a decision. Until then, the government will not be able to have people assigned for removal to Rwanda, and even if the Supreme Court rules in the government’s favour, they will still need to implement the aforementioned assessment of each individual case before they can start the process of removing them to Rwanda, which can then be challenged in court anyway
It is possible that the UK government will work with the Rwanda government to improve its asylum system so that it meets the standards of the Court of Appeal. This would not only make the policy lawful, but it would also make it more likely that the courts will not block individual cases of removal in future. This, however, will also take time to be implemented and would likely be expensive, meaning the government would still be facing the same issues it is currently dealing with in regard to this policy. Furthermore, Rwanda’s poor human rights record means that the chances of widespread reforms to its asylum system so that it reaches the standards of the ECHR may be rather optimistic.
Finally, it should not be overlooked that the other grounds of appeal were all dismissed by the Court of Appeal. These were that Article 31 of the Refugee Convention prevents people from being removed to third countries, that under retained EU law they could only be removed to a third country to which they have a connection, that relying on Home Office official guidance to designate Rwanda as safe was unlawful, that breaches of data protection law made removal to Rwanda unlawful, and that allowing people only seven days to challenge a decision to remove them to Rwanda was unfair. All of these being dismissed may cause problems for people seeking to challenge removal to Rwanda in future, if it is ever implemented.
Ultimately, the unlawfulness of the UK government’s Rwanda plan brings into focus the pivotal issue of the asylum system and the treatment of people fleeing persecution. It is possible that the government will end up abandoning the Rwanda scheme on the back of this judgement – the scheme’s unworkability may end up causing further problems, not to mention the huge expense, for the government, so abandoning it and citing the decision of the Court of Appeal as the reason for doing so may be a convenient way to save face. While that would do little to resolve the existing problems with the UK’s asylum system, it would at least not contribute to things getting worse.
In striking down this scheme, the Court of Appeal has underlined that controls on immigration must conform with the human rights obligations to which the UK, as a signatory to the ECHR, must adhere.
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