Rwanda appeal opens today

Even if the government wins, no flights are expected before next year

The five most senior members of the UK Supreme Court will begin hearing the government’s Rwanda appeal this morning. You can watch the hearing online from 1030. Oral argument is expected to last three days and a decision is not expected before next month, at the earliest.

High Court

Readers will recall that the government won last December in the High Court — also known as the divisional court when, as on this occasion, more than one judge sits. That judgment followed hearings in September and October 2022.

As I suggested last week, it’s thought that the formal warning for misconduct issued to Lord Justice Lewis by the lord chancellor and the then lord chief justice relates to those hearings. A senior judge found that Lewis “had intervened excessively in counsel’s submissions, throughout the hearing, in a manner which became increasingly harsh and rude and to the extent that it constituted judicial bullying”.

Although the the asylum-seekers’ generic claims for judicial review were dismissed by Lewis and Mr Justice Swift, both judges agreed that the way in which the then home secretary Priti Patel had implemented her policy was flawed in eight individual cases before the court.

Priti Patel, home secretary, and Rwanda’s foreign affairs minister Vincent Biruta

Patel was told by the judges that she needed to reconsider her decisions in each of those cases if she wanted to send the individuals concerned to Rwanda. Knowing that there would be at least one further appeal on the generic issues, she decided not to do so.

Court of Appeal

The three judges who heard the asylum-seekers’ appeal gave judgment at the end of June.

Lord Burnett of Maldon, the then lord chief justice, found for the government. He thought that the agreement with Rwanda in 2022 — taken together with assurances from the Rwandan government — meant there was no real risk that asylum-seekers flown from the UK would be sent on to countries where, contrary to article 3 of the human rights convention, they would face persecution or other inhumane treatment.

But his two colleagues in the Court of Appeal, the master of the rolls Sir Geoffrey Vos and the vice-president of the civil division Lord Justice Underhill, disagreed. In their view, deficiencies in Rwanda’s asylum system meant there were substantial grounds for thinking that people with a good asylum claim would face precisely that risk. As Burnett was outnumbered, the migrants’ challenge to the Rwanda policy succeeded.

All three judges accepted that the Rwandan assurances had been given in good faith and were intended to address any defects in its asylum processes. But Vos and Underhill concluded that Rwanda’s arrangements for deciding asylum claims were still inadequate by the summer of 2022, when the migrants were due to be removed.

The government would have been allowed to send the migrants somewhere else if it had found a safe third country that had been willing to take them. Ministers are said to be in discussions with five other countries at the moment.

Supreme Court

The Supreme Court has helpfully summarised the background to the case and the issues it is to consider.

First, the facts:

These appeals arise out of claims brought by individual asylum-seekers who travelled to the UK in small boats (or, in one case, by lorry). The home secretary declared the claimants' claims for asylum to be inadmissible, intending that they should be removed to Rwanda where their asylum claims would be decided by the Rwandan authorities. Her decisions were made in accordance with the Migration and Economic Development Partnership between the UK and Rwanda, recorded in a memorandum of understanding and a series of diplomatic notes verbales.

Under paragraphs 345A to 345D of the Immigration Rules, if the home secretary decides that an asylum claim is inadmissible, she is permitted to remove the person who has made the claim to any safe third country that agrees to accept the asylum claimant. On the basis of the arrangements made in the partnership agreement, the home secretary decided that Rwanda was a safe third country for these purposes. This is known as the Rwanda policy.

The claimants (and other affected asylum-seekers) challenged both the lawfulness of the Rwanda policy generally and the home secretary's decisions to remove each claimant to Rwanda. The divisional court held that the Rwanda policy was, in principle, lawful. However, the way in which the home secretary had implemented the policy in the claimants’ individual cases was procedurally flawed. Accordingly, her decisions in those cases would be quashed and remitted to her for reconsideration.

The appeal to the Court of Appeal concerned only the challenges to the lawfulness of the Rwanda policy generally. By a majority, the court allowed the claimants’ appeal on the ground that the deficiencies in the asylum system in Rwanda were such that there were substantial reasons for believing that there was a real risk of “refoulement”. That is: a real risk that persons sent to Rwanda would be returned to their home countries where they face persecution or other inhumane treatment, when in fact they have a good claim for asylum.

In that sense, Rwanda was not a safe third country. Accordingly, unless and until the deficiencies in its asylum processes are corrected, removal of asylum-seekers to Rwanda will be unlawful under section 6 of the Human Rights Act 1998. This is because it would breach article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment.

The Court of Appeal unanimously rejected the claimants’ other grounds of appeal.

The Supreme Court has identified six questions arising from those facts:

1. Did the divisional court apply the wrong test when determining whether removal to Rwanda would breach article 3?

2. If the divisional court applied the right test, was the Court of Appeal entitled to interfere with its conclusion that Rwanda was a safe third country?

3. If the divisional court applied the wrong test or there was another basis for interfering with its conclusion, was the Court of Appeal right to conclude that Rwanda was not a safe third country because asylum seekers would face a real risk of refoulement?

4. Did the Home Secretary fail to discharge her procedural obligation under article 3 to undertake a thorough examination of Rwanda's asylum procedures to determine whether they adequately protect asylum seekers against the risk of refoulement?

5. Were there substantial grounds for believing that asylum seekers sent to Rwanda will face a real risk of treatment contrary to article 3 in Rwanda itself, in addition to the risk of refoulement?

6. Does the Asylum Procedures Directive continue to have effect as retained EU law? This is relevant because the directive only permits asylum seekers to be removed to a safe third country if they have some connection to it. None of the claimants has any connection to Rwanda.

The first three issues are the ones on which the home secretary Suella Braverman is appealing to the Supreme Court. As it’s the government’s appeal, its counsel will address the court first. The home secretary is represented by Sir James Eadie KC and Lord Pannick KC.

The court will then hear from counsel for five respondents to the appeal. The migrants are identified as:

1. AAA (Syria)

2. AHA (Syria)

3. AT (Iran)

4. AAM (Syria)

5. NSK (Iraq)

Various respondents have brought cross-appeals on the remaining issues.

Even if the government wins, it will be some time before anyone is sent to Rwanda. There may be challenges by individual migrants, which will take time to resolve. A report in yesterday’s Sunday Times says the first planes would not take off before early next year.

Ministers also appear to think that the human rights court might intervene. I reported on Friday that this was far from inevitable. But if the court again issues what amounts to an interim injunction and the government ignores it, the United Kingdom might find itself in breach of international law.

I shall have more to say on this if we ever reach that stage.