The end of the Rwanda Scheme? R (AAA) v SSHD [2023]

Guest post by Catherine Briddick. Catherine is an Assistant Professor at the University of Warwick. She teaches and researches international human rights and refugee law. Catherine is on Twitter @CateBriddick.

Introduction

On 29 June 2023 a majority of the Court of Appeal ruled that the Government’s plan to deport asylum-seekers to Rwanda was unlawful. Rwanda is not currently a safe third country. Instead, there are substantial grounds for thinking that protection-seekers sent there would not have their claims determined properly and would be returned by Rwanda to situations where they would face persecution and other forms of serious harm (refoulement). 

You can watch the Lord Chief Justice, Lord Burnett, give a summary of the decision here. You can read a summary of the judgement here and the full judgment here. 

Overall, this judgment upholds the UK’s international legal obligations, affirms the centrality of the prohibition of refoulement, and demonstrates the importance of scrutinising the conditions that protection-seekers will actually face in countries deemed ‘safe’.  

Background

Attempts to prevent protection-seekers from entering safe countries, or to remove them to other countries to have their claims determined there, may be described as ‘externalisation’.

In April 2022, the UK Government and Rwanda entered into a Migration and Economic Development Partnership (MEDP) through a Memorandum of Understanding (MoU). This political agreement seeks to enable the ‘transfer’, or forced removal, of asylum-seekers from the UK to Rwanda to have their claims determined there. 

Legislation that followed, the Nationality and Borders Act 2022, provided a strengthened, domestic legal foundation for this attempt to externalise refugee determination and protection. 

The Illegal Migration Bill was laid before Parliament in March 2023. This Bill, if passed, seeks to create a group of people who cannot have their claims for protection determined in the UK and who are instead subject to a duty to deport and a power to detain. As UNHCR explains: 

“The effect of the bill… would be to deny protection to many asylum-seekers in need of safety and protection, and even deny them the opportunity to put forward their case. This would be a clear breach of the Refugee Convention and would undermine a longstanding, humanitarian tradition of which the British people are rightly proud.”

With this combination of agreement, legislation, and Bill, the Government seeks to effectively end the institution of asylum in the UK. Such a move is dependent, however, on there being a safe third country to deport asylum-seekers to. 

The legal challenge

In May and June 2022, a group of asylum-seekers who arrived irregularly, as the majority of protection-seekers are compelled to do, were told that their asylum claims were not going to be decided in the UK. Instead, they were to be removed to Rwanda to have their claims determined there, in accordance with Rwandan asylum law and procedure. Following the intervention of the European Court of Human Rights (ECtHR), no removals to Rwanda have taken place. 

The appellants in this case are ten asylum-seekers from Syria, Iraq, Iran, Vietnam, Sudan, and Albania and the charity, Asylum Aid. They sought to challenge both the lawfulness of the Rwanda policy in general, and the decisions made in each individual case. In accordance with its supervisory responsibility in relation to the 1951 Refugee Convention, UNHCR intervened in the case. 

In December 2022 the High Court upheld the legality of the Rwanda scheme but quashed all of the individual removal decisions. The appeal to the Court of Appeal concerned, therefore, the legality of the Rwanda scheme itself. 

The Court of Appeal’s judgment 

The majority judgment is given by Sir Geoffrey Vos, Master of the Rolls and Lord Justice Underhill, the Vice-President of the Court of Appeal (Civil Division). Lord Burnett, the Lord Chief Justice, dissents. 

First, the majority find that deficiencies in the Rwandan asylum system are so significant that there is a real risk that refugees deported there will not be recognised and protected as such. Removals in such circumstances would breach the UK’s obligations under article 3 of the European Convention of Human Rights, the prohibition of torture, inhuman and degrading treatment.

To reach this conclusion, the Court engages in a detailed consideration of Rwanda’s treatment of asylum-seekers, including that pursuant to other agreements (with Israel in 2013).

The legal heart of this judgement is, therefore, Underhill LJ’s forensic examination of Rwanda’s asylum determination system. Underhill LJ reviews evidence provided by UNHCR and others, discussing denials of access to the Rwandan asylum process, refusals to register claims made on the basis of sexual orientation or gender identity, significant issues with asylum interviews and decisions, concerns about judicial impartiality, significant issues concerning asylum-seekers’ ability to access interpreters and legal advice, and a lack of legal knowledge and training (paras 133-286, see 264 for a devastating summary). Against this backdrop, the Court reiterated evidence from UNHCR that the overall rejection rate of Rwanda’s Refugee Status Determination Committee was 77%, noting that 100% of people fleeing Syria, Yemen, and Afghanistan had had their claims rejected (paras 96, 195-6, 200). 

Drawing this together, Underhill LJ concludes at para 272 that: 

“In short, the relocation of asylum-seekers to Rwanda under the MEDP would involve their claims being determined under a system which, on the evidence, has up to now had serious deficiencies, and at the date of the hearing in the Divisional Court those deficiencies had not been corrected and were not likely to be in the short term.” 

As the Master of the Rolls explains, the problem with the “unequivocal assurances” provided by Rwanda in the MoU is not that they are “not given in good faith”, but that “…the structural institutions that gave rise to past violations remain in Rwanda today.” (paras 104 and 84)

As a consequence, as the Master of the Rolls concludes at para 110: 

“Those asylum seekers risk being returned either directly to their country of origin or indirectly through a third country. They will thereby face real risks, in circumstances where they should not have been returned at all. A robust and effective asylum process in the receiving state is a necessary bulwark to mitigate against the risk of refoulement and related treatment.”

Second, the majority of the Court of Appeal found that the Refugee Convention does not prohibit a receiving state from declining to determine an asylum claim “where it can” and removing a claimant to a non-persecutory state (para 316). Protection-seekers can, consequently, be removed to countries that are safe as occurs, for example, within the EU under the Dublin III Regulations. 

Significantly, the Court rejected the argument that removal to a safe third country (which, it will be recalled, Rwanda is not) penalises refugees (para 323). This is the case even where, as with the MoU, a purpose of removal is to deter others from arriving irregularly (paras 324-329). 

The dissent and other issues that were litigated, including on retained EU law, data protection and procedural fairness, are not discussed here. 

The Government has indicated that it will seek to appeal this decision. The case may, therefore, proceed both to the UK’s Supreme Court and, following that, the European Court of Human Rights. 

Some concluding observations

This is a highly significant judgement. 

Legally, the Court has clarified, or affirmed, that decisions on the removal of asylum-seekers to other countries have to engage with the substantive question of those countries’ safety. States cannot rely on assurances. They have to consider, in detail, the material conditions that protection-seekers confront in asylum determination processes and in the country more broadly. 

The paragraphs of the judgment that deal with the penalisation of asylum-seekers are disappointing, but arguments concerning discriminatory and retributory penalisation on the basis of mode of arrival are not substantively engaged with. Instead, here, and in the discussion of States’ obligations to decide claims, the Court sidesteps and focuses on the safety of any externalisation, not the intention behind it. At issue, Underhill LJ explains at para 319, is the ability of any third country to deliver to asylum-seekers “the protection which the Convention is intended to afford them.” 

Institutionally, UNHCR played a pivotal role in this case. The Court of Appeal found that “particular importance” should be attached to the evidence it provided (para 87).  It was significant that UNHCR had issued “a rare unequivocal warning that there should be no transfers of asylum seekers to Rwanda...” (para 6). UNHCR has said that it welcomes the judgment:

“In our submissions to the court, UNHCR expressed its longstanding and well-known concerns about the ‘externalization’ of asylum obligations. We continue to urge the Government of the United Kingdom to instead pursue other measures, including cooperation with the UK’s European neighbours and fair and fast asylum procedures, that would be more humane, efficient, and cost-effective.”

Politically, the judgment raises serious questions about Government policy in this area. The UK has, for example, paid £140 million pounds to Rwanda to promote its economic development (para 25). This amount, if spent reducing an asylum backlog of 132,000 claims at the end of 2022, would do much to alleviate the misery caused by the UK’s asylum determination system. The judgment also calls into question measures at the heart of the Illegal Migration Bill. A Bill that is, at the time of writing, being rejected by the House of Lords and which was already unworkable and illegal, has become even more so. 

Finally, this judgment will be scrutinised in other jurisdictions under the supervision of the ECtHR, including those contemplating similar arrangements. The protection against refoulement it offers may, therefore, be broader than this first, partial and initial analysis suggests. 

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