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A thorough vindication or a damning indictment? Reaction to the High Court’s ruling on the Rwanda asylum policy and what might come next


A roundup of NGO, political and legal reaction to December's decision on the legality of relocating asylum seekers

Date of Publication:
02 January 2023

Following on from our initial article last month, here's a rather belated (due to the Christmas and New Year holidays) roundup of some reaction to the High Court's judgment on the lawfulness of the policy of relocating asylum seekers to Rwanda.

CourtImage credit: WikipediaImmediate reaction to the judgment among NGOs involved in the case was one of disappointment, though all added that appeals were being considered. Detention Action's deputy director said on Twitter: "We're disappointed that the High Court has found the removal of refugees to an autocratic state which tortures and kills people is lawful. The Rwanda policy is brutal and harmful and we will now consider an appeal against today's judgment."

Care4Calais noted on Twitter that this was only the first court judgement on the Rwanda policy, and also added that it was considering all legal options for the next step in its opposition to the policy, including appealing to a higher court.

Asylum Aid's solicitors, Leigh Day, commented following the handing down of the judgment: "Today's ruling that the fast-track process to remove refugees to Rwanda is lawful is an immense disappointment to our client. Asylum Aid remains seriously concerned that the curtailed process that has been adopted to forcibly remove asylum seekers from the UK means they will be denied effective access to legal advice and the court. Although decisions in individual cases have been deemed unlawful, that does not address the serious continuing risk that individuals may not be able to properly make their case due the curtailed process."

Alison Pickup, director of Asylum Aid, said the organisation was looking closely at the judgment to see if there are any grounds for an appeal.

The Public and Commercial Services Union, which was a claimant in the case with Detention Action and Care4Calais, said: "We're disappointed the court hasn't found in our favour in respect of the general legality of the policy, but we're pleased that eight refugees have had their decisions quashed and will not be deported to Rwanda at this stage. … We're reading what is a long and complex judgment and considering our position on a potential appeal."

Four days after the judgment, the Refugee Council issued its response in a statement which focused on how the High Court found "error after error" had been made by the Home Office in the individual cases of the eight claimants.

"[A] close reading of the 139-page document should raise significant and serious concerns about the Home Office's ability to operate the process in a competent or fair way," the Refugee Council said.

The Refugee Council added: "Even after the High Court judgment, it's unlikely anyone will be removed to Rwanda anytime soon. A further hearing in January will determine whether the decision on the lawfulness of the policy can be appealed or not. The Home Secretary told MPs that flights would only begin once the legal process had come to an end."

Political reaction to the judgment by the Government and the Opposition was predictably disparate.

On the afternoon of the handing down of the judgment, Home Secretary Suella Braverman made a statement in the House of Commons and said the High Court ruling was a thorough vindication of the Government's migration partnership with Rwanda.

Braverman said: "Today in the High Court, in a judgment spanning more than 130 pages, Lord Justice Lewis and Mr Justice Swift held that it is indeed lawful for the Government to make arrangements for relocating asylum seekers to Rwanda and for their asylum claims to be determined in Rwanda rather than in the United Kingdom. The court further held that the relocation of asylum seekers to Rwanda is consistent with the refugee convention and with the statutory and other legal obligations on the Government, including the obligations imposed by the Human Rights Act 1998. This judgment thoroughly vindicates the Rwanda partnership."

Shadow home secretary Yvette Cooper begged to differ, calling the judgment a damning indictment of the Home Office's decision-making process.

Yvette Cooper told the Commons: "The Home Secretary describes today's court judgment as a vindication, but I wonder whether she has read it, because it sets out evidence of serious problems in Home Office decision making. It also identifies the significant financial costs of the scheme and the very limited number of people who will be covered, and certainly identifies no evidence that it will act as a deterrent or address the serious problems that we face. The court concluded that the Home Office's decision making in each of the eight cases considered was so flawed and chaotic that those individual decisions have had to be quashed.

"There were cases of literally mixing up evidence and the names of individuals, so the Home Office was making decisions on the wrong people; there was confusion between teams in Glasgow and Croydon about who was deciding what and which information should be shared; and evidence of torture and trafficking was not considered. We also know that the Home Office attempted to send heavily pregnant women to Rwanda. That is a damning indictment of the decision-making process in the Home Office, which we know is not working because no decision has been made on 98% of the small boat arrivals in the last 12 months."

In response, Braverman said: "We accept the Court's judgment on those cases. We have already taken steps to strengthen the caseworking process, including revising the information and guidance given to individuals during their assessment for relocation, but we have been clear throughout that no one will be relocated if that is unsafe for them, and support is offered to individuals throughout the process to ensure that it is fair and robust."

The Home Secretary told the Commons that both the British and Rwandan government were resolved to deliver the migration partnership at scale as soon as possible, though she clarified that this would be after the conclusion of legal proceedings. She explained: "We know that further legal challenges are possible, and we will continue to defend this policy vigorously in the courts. However, once the litigation process has come to an end, we will move swiftly in order to be in a position to operationalise the policy and deliver on our promise."

Legal reaction as to the extent of the Government's victory in the judgment was mixed.

Well-known lawyer and legal blogger David Allen Green said the Government had simultaneously won and lost the case. He noted that while the policy may well be lawful, this does not make it practicable. Green emphasised that in not a single individual case before the Court had the policy been lawfully applied.

Green stated: "The import of the High Court decision is that in respect of each removal to Rwanda under the policy, the Home Office has to apply the policy in a robust and reasoned manner to the individual circumstances of each case in each of the decisions to be made. … The impression one forms reading the judgment as a whole is that, with the resources and administrative competence available, the Home Office simply is not capable of making all the individual decisions so that many removals to Rwanda are likely."

Green said the lawful implementation of the policy will be extraordinarily resource-intensive and financially expensive. He concluded: "The government and its supporters may raise a cheer that the policy is itself has been held to be not unlawful. But today's judgment means that – like the chartered flights to Rwanda last summer – the lawful implementation of the policy may never really get off the ground."

Doughty Street Chambers barrister Adam Wagner was of a similar mind, commenting on Twitter after the judgment: "I remain of the view that nobody will ever be sent to Rwanda for their asylum claims to be processed there. … There will probably be appeals to the Court of Appeal and Supreme Court after that, and potentially to the European Court of Human Rights after that. Unless the govt manages to operate the scheme in the meantime I can't see those cases being resolved before the next election."

Colin Yeo of Garden Court Chambers and Free Movement said on Twitter, however, that he was pretty sure some asylum seekers will at some point end up on a flight to Rwanda.

Yeo added on Twitter the day after the judgment: "I'm not sure that the outcome is a Pyrrhic victory in the sense some suggest … It isn't clear new decisions would require the same level of detailed consideration as old ones. This is because new decisions will be made under the Nationality and Borders Act 2022, which was not in force at the time of the decisions under challenge in this case. The new process may be more streamlined from a govt perspective."

In a lengthy analysis of the judgment on Free Movement, Yeo commented: "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."

In analysis on his BarristerBlogger website, Pump Court Chambers' Matthew Scott wrote that it was wrong of the Home Secretary to say the High Court ruling "thoroughly vindicates" the Rwanda policy, as the victory was far from complete.

Scott said: "The prospect of the scheme actually operating as intended remains distant, but the judgment may have brought Ms Braverman's dream of a plane full of deportees flying to Rwanda just a little closer." He added that any flight, if it takes place at all, is likely to be many months or even years away.

More generally on the judgment, Scott said the High Court judges had taken a somewhat generous view of Rwanda's human rights record: "We shouldn't, they said, worry too much about what the Rwandan government does, what matters is what it says." Scott said the judges' insouciance when considering the risks that claimants would face in Rwanda for their political or other views was "breathtaking".

Dr Nicola Palmer, a legal academic at King's College London, posted her considered analysis of the judgment on the Border Criminologies blog published by the Faculty of Law at the University of Oxford.

Palmer said that while the Court's decision cannot be considered final, it is significant. Indeed, it is a "watershed moment" which allows the UK to outsource its asylum responsibilities: "On these terms, wealthy states can send people seeking asylum on their shores to poorer nations and 'ensure' their safety through financial incentives."

Palmer added that the Court's reasoning on the UK's obligations under the Refugee Convention and on Rwanda as a safe country to receive refugees brings into stark relief that any further legal challenge has to be part of a larger political project that reframes migration as a socially positive practice and the provision of refuge as a shared responsibility.

She explained: "According to the High Court, removal to a safe third country is legal; the only question is whether Rwanda can be considered a safe third country. As it stands, this reading of the UK's international legal obligations establishes the safety assessment of another country as the key obligation that the government has to meet. Yesterday it was an assessment of Rwanda's safety; going forward it may well be an assessment of a range of other countries. It is here that a pro-migrant political argument that challenges Section 16 of the Nationality and Borders Act 2022, as well as a pro-refugee legal argument based on a more holistic reading of the Refugee Convention, must be made and won."

Palmer found that, overall, the High Court decision focuses on the Home Secretary's assessment of Rwanda and supports a very narrow reading of the UK's international obligations under the Refugee Convention.