Why was the UK’s Rwanda plan for asylum seekers ruled unlawful? | Immigration and asylum

Suella Braverman’s plan to send asylum seekers to Rwanda suffered a fresh blow on Thursday after the court of appeal ruled by a majority of two to one that it was unlawful. Here are some of the key findings by the court of appeal justices and what they mean.

“There are substantial grounds for believing that there is a real risk that the asylum claims of RIs [relocated individuals] may be wrongly refused. On the face of it, it would appear to follow that there was a real risk of them being refouled. Where an asylum seeker’s claim is rejected the country in question will typically require them to leave the country (in the absence of any other basis on which they might claim residence), and since they will have been found to be at no risk in their country of origin, there is no reason why they should not be returned there; and even if they are in the first instance returned to some other country that does not exclude the possibility of indirect refoulement.”

This passage by Lord Justice Underhill gets to the heart of the whether Rwanda is a safe country for refugees, which was part of the basis for the court of appeal challenge. Two of the three judges decided that it was not, and that there were “substantial grounds” for believing that refugees would have their application for asylum incorrectly refused which would put them at risk of refoulement – the forced removal of refugees to countries where they will be at risk.

“The ultimate reliability of the safeguards in the Rwandan asylum system will depend on the promised ability of asylum seekers to appeal to the court. That is not to ignore the fact that the bulk of the claims will be determined by non-judicial means, but to reassert that access to the courts is a core component of the right of access to justice. The divisional court in government of Rwanda v. Nteziryayo [2017] EWHC 1912 (Admin) considered the independence of the Rwandan judiciary in an admittedly different context, but at some considerable length. It concluded … that ‘the evidence points to some risk, depending on the evidence before them and the safeguards in play, that judges might yield to pressure from the Rwandan authorities’.”

This section explains why the court of appeal judges feared that refugees may have their claims wrongly refused. Underhill cites the lack of independence of the Rwanda judiciary, highlighting findings from a 2017 case heard in England arising from the Rwandan genocide. Thursday’s judgment also cited a Foreign, Commonwealth and Development Office document from April last year that found the Rwandan legal system was “not independent, is regularly interfered with and is politicised”.

“I have concluded that there were substantial grounds for thinking that asylum seekers sent to Rwanda under the MEDP [the UK’s agreement with Rwanda], as at the date of the SSHD’s decision-making in these cases in July 2022, faced real risks of article 3 mistreatment. That is the consequence of the historical record described by the UNHCR [United Nations high commissioner for refugees, an intervener in the case] the significant concerns of the UNHCR itself, and the factual realities of the current asylum process in Rwanda. In practice, Rwanda can only deliver on its good faith assurances if it has control mechanisms and systems in place to enable it to do so. Both history and the current situation demonstrate that those mechanisms have not yet been delivered. They may in the future be delivered but they are not, on the evidence, there now.”

Here, the master of the rolls, Sir Geoffrey Vos, who concurred with Underhill, points to the specific rights that may be violated. Article 3 of the European convention on human rights (ECHR), incorporated in the British Human Rights Act, states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The reliance of the judgment on the ECHR has prompted predictable – and perennial – Tory grumblings about the convention and whether the UK should leave it.

“On the one hand, I would accept that this is not a case where the Home Office was merely going through the motions of assessing the adequacy of the Rwandan asylum system. There were evidently dedicated civil servants genuinely trying to establish how the … process worked and to obtain assurances that addressed the perceived problems. On the other hand, however, perhaps as the result of the pressure of the timetable to which they were required to work, I believe that the officials in question were too ready to accept assurances which were unparticularised or unevidenced or the details of which were unexplored.”

The Rwanda agreement is a flagship policy of the UK government, and above Underhill suggests the pressure on civil servants to get it over the line meant their due diligence was not up to scratch.