R ((AAA) Syria and Ors) v Secretary of State for the Home Department [2023] UKSC 42
The Government's flagship policy of removing individual asylum seekers to Rwanda for their claims to be decided under the Rwandan asylum system that was announced on 14th April 2022 has been found to be unlawful by a unanimous Supreme Court.
The Claimants were 10 individual asylum-seekers who entered the UK irregularly in small boats, together with one charity, Asylum Aid. There were also several interveners to the case, including the UN High Commissioner for Refugees (UNHCR) (whose counsel team was led by Angus McCullough KC of 1 Crown Office Row). The Home Secretary (whose counsel included Neil Sheldon KC and Natasha Barnes of 1 Crown Office Row) was the Defendant.
In December 2022, the Divisional Court (Lewis LJ and Swift J) dismissed the general challenge to the policy, as discussed here. But in June, the Court of Appeal, by a 2-1 majority (Sir Geoffrey Vos MR and Underhill LJ) found that the policy was unlawful, as discussed here.
The Supreme Court (Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lord Briggs and Lord Sales), in a judgment jointly authored by Lord Reed and Lord Lloyd-Jones, has now held unanimously that the policy is unlawful on the basis that there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement (forcible return) to their country of origin if they are removed to Rwanda.
Early in the judgment, the Court gave a clear statement of the centrality of the principle of non-refoulement, describing it as
"a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country's reputation for developing and upholding the rule of law." (para 26)
This was on the basis of out in several international treaties ratified by the UK, including under Article 33 (1) of the Refugee Convention (which has has long been interpreted by the domestic courts as prohibiting not only the direct return of refugees to the country where they fear persecution, but also their indirect return via a third country), Article 3 (1) of the UN Convention against Torture (UNCAT), relevant provisions of the United Nations International Covenant on Civil and Political Rights of 1966 and Article 3 of the European Convention on Human Rights (ECHR) (which also imports an obligation not to remove persons to other states where there are substantial grounds for believing that they would be at real risk of suffering inhuman or degrading treatment).
The Court also suggested that, if required, it might perhaps go further, stating that it "may be that the principle of non-refoulement also forms part of customary international law", noting that the UK "has subscribed to this view, along with the other states parties to the Refugee Convention, in the 2001 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (UN Doc HCR/MMSP/2001/09)". If so, this principle would be "consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect". However, as this had not been the subject of specific submissions, this suggestion was not relied on by the Court in this decision (para 25).
The Court also noted that Parliament had given effect to both the Refugee Convention and the ECHR in domestic law through provisions including s. 2 of the Asylum and Immigration Appeals Act 1993, s. 6 of the Human Rights Act 1998, ss. 82 and 84 of the Nationality, Immigration and Asylum Act 2002 and paragraph 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
The first issue was whether the Court of Appeal was correct in finding that the Divisional Court had applied the wrong legal test when considering the risk of refoulement.
The Supreme Court held that there were passages of the Divisional Court's judgment which suggested that "members of the court misunderstood their function" and seemed to indicate that the Court "saw its function as reviewing the Secretary of State's assessment and deciding whether it was a tenable view, rather than making its own assessment of the grounds for apprehending a risk of refoulement in the light of the evidence as a whole" (para 39).
Overall, it was not clear whether this was the approach that the Divisional Court had taken (as another passage of the judgment had suggested differently), but the Supreme Court made clear that the correct legal test was whether there were substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill treatment as a result of refoulement to another country and that the court must answer this question for itself, based on its assessment of the evidence before it (paras 38 and 40).
The second issue was whether the Court of Appeal was entitled to interfere with the Divisional Court's conclusion. The Supreme Court made clear that it was:
"We are in no doubt that, regardless of whether the Divisional Court applied the correct legal test, the Court of Appeal was in any event entitled to interfere with its conclusion. That is because the Divisional Court erred in its treatment of the evidence bearing on the risk of refoulement, essentially by failing to engage with the evidence of UNHCR concerning problems affecting the processing of asylum claims in Rwanda. As we have explained, an assessment of whether there is a risk of refoulement of asylum seekers removed to Rwanda requires an examination of how the asylum procedure operates there, in order to ensure that it affords sufficient guarantees that asylum seekers are not at risk of being removed to their country of origin without a proper evaluation of their claims." (para 42)
The Court set out main authorities underlying this conclusion (including the decisions in Ilias v Hungary (2019) 71 EHRR 6, Othman v United Kingdom (2012) 55 EHRR 1 (the Abu Qatada case) and Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14), noting that these set out principles which included having regard to deficiencies identified by bodies such as UNHCR (para 45) and carrying out a "fact-sensitive examination of how assurances will operate in practice, in the circumstances prevailing at the material time" (para 48), in which "past breaches of similar assurances by the requesting state, whether provided to the United Kingdom or to a third state, were relevant to the question whether the requesting state could be relied upon to comply with its assurance on the present occasion" (para 49).
But the Divisional Court did not follow the proper approach:
"the Divisional Court had before it evidence that there were serious and systemic defects in Rwanda's procedures and institutions for processing asylum claims; that it had a history of acting in breach of the principle of non-refoulement, which had continued during the negotiation of the arrangements and following its execution; and that it had, in the recent past, failed to abide by similar assurances which it had given to another foreign government. The Divisional Court did not engage with this evidence, and consequently failed to examine the reliability of the assurances given by Rwanda in the light of that evidence." (para 50)
In relation to this, the Divisional Court had erred in stating that it could go only behind the opinion expressed by a senior official at the Foreign Office that the Government was confident that Rwanda would honour its obligations "if there were compelling evidence to the contrary" (para 51). Rather, the Divisional Court had to make its own assessment, albeit attaching weight to the Government's view as to the value of assurances given by another country, particularly where its view reflects the advice of officials with relevant experience and expertise. However, the Supreme Court also noted that "Ministers do not, however, necessarily act on the advice of their officials" (para 52).
Further, there had been "inadequate treatment" of the evidence concerning failures by Rwanda to abide by previous assurances given to Israel under an agreement for the removal of asylum seekers (regarding which the Divisional Court had considered it "permissible" for the Home Secretary not to have sought to investigate this) (paras 60-61), and of the evidence provided by the UKHCR concerning Rwanda's history of refoulement and of defects in its asylum system (paras 62-63). In relation to the latter, the Divisional Court's view that the evidence of UNHCR carried no special weight was a "further error", in view of its status, role, expertise and experience (paras 64-68), particularly where "its evidence and submissions were presented with moderation, and did not appear to reflect a partisan assessment" and "as a responsible United Nations agency accountable to the General Assembly, UNHCR will not lightly make statements critical of any state in which it operates" (para 69).
The Supreme Court further held that the Court of Appeal was entitled to conclude that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement following their removal to Rwanda, praising the "impressive" judgment of Underhill LJ in the Court of Appeal (para 74).
In outline, the Supreme Court noted that the Court of Appeal's conclusion was based on: (i) Rwanda's a poor human rights record, including criticism from the UK Government in 2021 regarding "extrajudicial killings, deaths in custody, enforced disappearances and torture" and constraints on media and political freedom (paras 75-76); (ii) the UNCHR evidence of "serious and systematic defects in Rwanda's procedures and institutions for processing asylum claims", including: (a) concerns about the asylum process itself (such as the lack of legal representation, the risk that judges and lawyers will not act independently of the Government in politically sensitive cases and a completely untested right of appeal to the High Court); (b) the "surprisingly high rate of rejection" of asylum claims from known conflict zones (including 100% rejection rates for nationals of Afghanistan, Syria and Yemen during 2020-2022, in contrast to UK acceptance rates of 74%, 98% and 40% respectively for the same period); (c) Rwanda's practice of refoulement, which had continued; and (d) the apparent inadequacy of the Rwandan government's understanding of the requirements of the Refugee Convention; and (iii) Rwanda's recent failure to comply with an explicit undertaking to comply with the non-refoulement principle given to Israel under the agreement which operated between 2013 and 2018.
The Supreme Court accepted that the Rwandan Government entered into the arrangements in good faith, that it had incentives to ensure that it was adhered to, and that monitoring arrangements provided a further safeguard (para 102). However:
"As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness. The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place. We accept the Secretary of State's submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings." (para 105)
The Supreme Court further dismissed the cross-appeal brought by one of the Claimants on the basis of retained EU law, holding that Articles 25 and 27 of the Procedures Directive no longer have effect in the UK domestic law as retained EU law, as they fall within the scope of paragraph 6 (1) of Schedule 1 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.
Comment
The Supreme Court has left open the possibility that sending asylum seekers to a third country to have their claims processed might be lawful in very different circumstances. However, the clear affirmation that it will be for the courts to decide based on the evidence whether there is a real risk of refoulement, and the detailed description of the concerns associated with the arrangements with Rwanda suggest that for any such policy to be lawful the circumstances will need to be very different indeed from the present state of affairs.
In reply, the Prime Minister has stated that a new treaty with Rwanda is in process and he intends to introduce "emergency legislation" in which Parliament would "confirm" that Rwanda is safe.
It is not yet clear precisely what the Prime Minister has in mind by this, or whether it would be watertight as a matter of domestic or international law. But it seems that the Government may not yet have abandoned its plans, despite this unanimous outcome in the Supreme Court.