The Court of Appeal has found, by a majority, that the Rwanda plan is unlawful as Rwanda is not a sufficiently safe country. The full judgment can be accessed here, and a summary of that judgment is accessible here. The majority judgment is given by the Master of the Rolls, Sir Geoffrey Vos, and the Vice-President of the Court of Appeal Civil Division, Lord Justice Underhill. The Lord Chief Justice, Lord Burnett, dissents and would have dismissed that particular ground of appeal.
All of the other grounds of appeal pursued by the claimant asylum-seekers against the Rwanda plan were unanimously dismissed.
This post provides a summary of the Court’s decision. Further details and analysis of the Court of Appeal’s judgment will follow later today on this page.
Breach of Article 3 ECHR – not a safe third country
Each member of the majority gives a separate judgment. Read together, their decision is that the deficiencies in the Rwandan asylum system means that there are substantial grounds for believing that there is a real risk that persons sent to Rwanda will be returned to their country where they faced persecution or other inhumane treatment, when in fact they have a good claim for asylum.
This means that the Rwandan plan breaches Article 3 ECHR, more specifically the test spelled out in Soering v United Kingdom (1989) 11 E.H.R.R. 439, which makes a decision or policy contrary to Article 3 where there are substantial grounds for believing that it would lead asylum-seekers to face real risk of Article 3 mistreatment.
This conclusion is founded on the evidence, which was also before the High Court, that Rwanda’s system for determining asylum claims was, up to the finalising of the Rwanda plan, inadequate.
Whilst the majority (in agreement with Lord Burnett) emphasise that there is no evidence to suggest that the Rwandan Government entered the agreement in bad faith, the following issues are emphasised in the judgment of Lord Justice Underhill as supporting the conclusion that the Rwandan system was not reliably fair and effective at the relevant dates:
- The evidence of the way in which asylum interviews are conducted.
- The absence of opportunity for claimants to present their claims through a lawyer.
- The evidence that the authority charged with determining asylum claims does not have sufficient skills and experience to make reliable decisions.
- The evidence that NGOs said to be able to provide legal assistance are unlikely to have sufficient capacity to do so.
- The fact that the appeal process to the Rwandan High Court is wholly untested, coupled with grounds for concern about whether the Rwandan judicial culture means judges are reluctant to reverse decisions of the executive decision-makers.
All other grounds of appeal dismissed
All of the claimant asylum-seekers other grounds of appeal against the Rwandan plan have been dismissed. This is a summary of the Court’s conclusions.
First, as to the effect of the Refugee Convention, the Court of Appeal concludes, in agreement with the High Court, that Article 31 does not in principle prevent the UK from removing asylum seekers to a safe third country.
Second, as to retained EU law, the Court of Appeal concludes, in agreement with the High Court, that EU law, which only permits asylum-seekers to be removed to a safe third country where they have some connection to it (none of the claimant asylum-seekers have a connection with Rwanda), ceased to be a part of EU law as a result of primary legislation following Brexit.
Third, in agreement with the High Court, the Court of Appeal concludes that the use of guidance to case-workers to designate Rwanda as a safe third country was not unlawful.
Fourth, in agreement with the High Court, the Court of Appeal concludes that removals to Rwanda are not themselves made unlawful by breaches of data protection law.
Fifth, as to procedural fairness, whilst the Court of Appeal finds that the Government needs to give guidance to caseworkers emphasising the need for flexibility in granting extensions to the seven-day time limit where fairness requires, they conclude that the seven-day period does not render the decision-making process “structurally unfair and unjust”.
The effect of the judgment
The result of the Court of Appeal’s judgment is that the High Court’s decision that Rwanda was a safe third country is reversed and that unless and until the deficiencies in its asylum processes are corrected removal of asylum-seekers to Rwanda will be unlawful.
