UK: The Rwandan Plan – A Step In The Right / Wrong Direction (Delete As Applicable)

The brainchild of Priti Patel and the subject of Suella Braverman's dreams, the Rwandan Plan has been declared lawful (sort of) by the High Court in AAA and others v SSHD [2022] EWHC 3230 (Admin). For those who don't know, the plan involves an agreement between the UK and Rwanda where prospective asylum seekers in the UK can be removed to Rwanda and given the right to claim asylum there. Contrary to what many think, these asylum seekers will not be returned to the UK following a successful claim. They will remain in Rwanda as refugees.

It should be noted that this plan is not drastically different to the Dublin III arrangements in place before Brexit. Under Dublin III, an asylum seeker who had passed through a safe European country before claiming asylum in the UK could be returned to that safe country to have their asylum claim considered. Obviously, Rwanda is not Europe but, if this were the French Plan, it is likely there would be less uproar. At least some of the outrage is based on a problematic view of Rwanda. Rwanda is less developed than the UK, but it is, at least in theory, capable of providing safe reception and a fair claims process.

The politics of the plan notwithstanding (for the record we think it is a vicious and nasty plan that doesn't solve anything and serves only to hurt vulnerable people) the High Court has found that it is lawful, and the Government will now likely try to resume removals that were stayed following last minute injunctions from the ECHR.

There were various challenges to the Plan. One challenge involved the allegedly irrational decision that Rwanda was safe, based on insufficient or biased evidence, and that Rwanda was, as a matter of fact, not a safe country. The High Court noted some deficiencies in the Secretary of State's consideration but found that it was sufficient.

The High Court gave significant weight to the agreement between the UK and Rwanda. Essentially, the High Court found that those sent to Rwanda from the UK would be treated in accordance with the agreement regardless of how Rwanda has otherwise treated asylum seekers. This is pretty thin and, unfortunately, it will likely take several unfortunate people being mistreated following removal to Rwanda to depart from this reasoning.

Another was that the UK had an obligation to decide a person's asylum claim. Under the Refugee Convention and international law, the UK has various obligations to those seeking asylum in the UK. These include non-refoulment – returning a person to their home country OR any country where they would be in danger or sent on to somewhere that would do the same.

However, significantly, the High Court found that there is no positive obligation to decide an asylum claim made within the UK. Without a positive obligation to decide a person's asylum claim here, and after finding that Rwanda was a safe country, the High Court held the Rwandan Plan does not breach the UK's obligations under the Refugee Convention.

If you find yourself in this position, or if you are representing someone in this position then there is hope. This decision is almost certain to go to the Court of Appeal (and maybe further). Secondly, you should focus on the personal features that mean Rwanda is not safe in your specific case. Sexuality claims, religious or political claims might all lead to increased risks in Rwanda. Health based claims (look at AM (Zimbabwe)) could be successful here as well as standard private and family life claims under Article 8 for those who have been in the UK for some time. These will all be weakened by the High Court's finding that those removed to Rwanda will be treated in accordance with the agreement. However, societal risks might be sufficient to show that Rwanda is not, in fact, a safe country in specific cases.

In summary, the decision is a 'win' for the Government who will be as obnoxious as possible about it but it will also likely be appealed to the Court of Appeal so we should keep hope.