UK Supreme Court rules the government’s Rwanda policy as unlawful

Background to the proceedings

This case was originally raised in the High Court of England and Wales by a group of asylum seekers who faced removal to Rwanda due to their asylum claims being deemed by the Home Office to be ‘inadmissible’. The inadmissibility process operates where it is considered that an applicant seeking protection in the UK had the opportunity to claim protection in a safe third country on their journey to the UK, but did not do so. In inadmissibility cases, such a claimant will be removed to any safe third country that agrees to accept them, in order for their protection claim to be decided in that country. For a state to qualify as a safe third country, it must be shown that the core principle of non-refoulement under international law is respected (i.e. that migrants will not be forced to return to the countries from which they had fled seeking protection). The idea that Rwanda is a safe third country for asylum claimants to be removed to derives from arrangements between the UK and Rwanda known as the ‘Migration and Economic Development Partnership’ (‘MEDP’).

The claimants involved sought to challenge both the lawfulness of Rwanda policy overall, as well as the Home Office’s decisions to remove each respective claimant to Rwanda. At first instance, the High Court ruled that the policy was, in principle, lawful. However, it ruled that the Home Office had erred in procedure when implementing the policy in the case of the individual claimants.

Court of Appeal decision

The decision in respect of the lawfulness of the policy as a whole was appealed to the Court of Appeal of England and Wales, which ruled by a majority that Rwanda is not a safe country and that affected individuals would face a substantial risk of refoulement. The claimants argued that removal of asylum seekers to Rwanda would breach the UK’s obligations under the European Convention of Human Rights (ECHR), in particular Article 3 ECHR, in that refoulement would violate the relevant individuals’ right to protection from torture and inhuman or degrading treatment.

The Court of Appeal therefore found that, until the current deficiencies in the Rwandan asylum system were addressed, any removal of asylum seekers under the Rwanda policy would amount to a breach of the ECHR. The Court rejected the separate ground of appeal that the policy is incompatible with a retained EU law policy that removal of asylum seekers to a safe third country should only be permitted if they have some connection to it.

Appeal to the UK Supreme Court

Following this decision in the Court of Appeal, the Secretary of State for the Home Department (‘SSHD’), then Suella Braverman, sought to appeal the decision to the UKSC on the question of risk of refoulement. Simultaneously, a claimant cross-appealed the case to the UKSC on the ground of compatibility with retained EU law. It therefore primarily fell for the UKSC to consider each of these grounds.

In a judgment dated 15th November 2023, the President of the UKSC, Lord Reed, announced that the Court unanimously dismissed the appeal and upheld the Court of Appeal’s conclusion as to the lawfulness of the Rwanda policy. It agreed that there are substantial grounds to believe that asylum seekers would be exposed to a real risk of inhuman or degrading treatment by way of refoulement if they were removed to Rwanda. The judgment notes that the High Court failed to sufficiently consider the evidence put forward by the United Nations High Commissioner for Refugees (‘UNHCR’) in respect of the defects of the Rwandan asylum system, as well as its poor human rights record. The policy was therefore found to breach protections afforded to asylum seekers under both domestic and international law. The cross-appeal on the ground regarding retained EU law was also dismissed on the basis that the relevant provisions no longer have effect in UK law following the end of the Brexit transition period.

What will happen next?

The judgment will prevent the Rwanda policy taking practical effect for now. However, subsequent statements from the UK Prime Minister and Home Secretary suggest that the government will not be deterred from pushing forward its current immigration policy and will consider changing UK law (including, perhaps, its entrenchment of international human rights law such as the ECHR) to facilitate this if necessary.

Our experienced team of solicitors advised on all aspects of immigration law. If you or your family members are affected by these matters and need advice, please do not hesitate to get in touch.