On 19 December 2022, the High Court's judgment in the judicial review claims against the government's Rwanda policy was published. The policy enables the Secretary of State for the Home Department ("the SSHD") to decide not to determine the asylum claims of certain persons in the UK but to remove them to Rwanda Thereafter, Rwanda will be responsible for considering their asylum claims and for giving them protection, if they are recognised as refugees.
The Rwanda Policy
This policy involves two decisions: first, a decision that the asylum claim is inadmissible and, second, a decision to remove the asylum claimant to Rwanda. When taking these decisions, the SSHD also certifies the asylum claim, restricting rights of appeal and lifting the prohibition on removal whilst the claim remains pending. The SSHD may also certify any human rights claim challenging removal to Rwanda as clearly unfounded, removing any remaining right of appeal.
In order to make an inadmissibility decision, the SSHD ought to be satisfied that the asylum claimant could have made an application for asylum to a safe third country (not necessarily Rwanda), but did not do so and was not prevented from doing so on account of exceptional circumstances. This test appeared in paragraph 345B of the Immigration Rules – it has now been somewhat reformulated and appears in section 80C of the Nationality, Immigration and Asylum Act 2002.
After this, a removal decision to Rwanda can be made on the grounds that it is considered by the SSHD to be a safe third country following arrangements made between the governments of the UK and Rwanda for the transfer of asylum claimants, the Migration and Economic Development Partnership ("the MEDP"). The SSHD's policy on inadmissibility states that relocation to Rwanda will be considered if there is a greater chance of prompt removal there as opposed to a third country to which the asylum claimant has a connection, if the claimant's journey to the UK was 'dangerous', and if it was made after 1 January 2022. The policy excludes certain categories of asylum claimant: unaccompanied children, families and EU nationals.
The judicial review claims were brought by individuals against whom the SSHD applied her policy, making inadmissibility and removal decisions and certifying their asylum and any human rights claims. Claims for judicial review were also brought by the Public and Commercial Services Union, Detention Action, and Care4Calais, although the Divisional Court (Lewis LJ and Swift J) concluded that all three lacked standing to pursue these claims. The Claimants challenged both the SSHD's Rwanda policy on general grounds, as well as the individual decisions taken in relation to each of them by the SSHD.
The Divisional Court held that, on account of the assurances provided by the Rwandan government as part of the MEDP and the assessment of the asylum processing in Rwanda by the SSHD, the latter had discharged her obligation, identified by the European Court of Human Rights in Ilias and Ahmed v Hungary (2020) 71 EHRR 6, to establish that there are adequate procedures in Rwanda to properly determine asylum claims and to ensure the lack of risk of refoulement. It was also held that, on the same basis, the SSHD had complied with her Tamesideduty to make reasonable enquiries. The Court also considered that the SSHD was entitled to rely on these assurances and that, despite the existence of evidence to the contrary, it was reasonably open to her to conclude that the asylum system in Rwanda was adequate and that the conditions in Rwanda do not, generally, expose those removed there to a real risk of article 3 ECHR ill-treatment.
The remaining general grounds of challenge were also unsuccessful. These included a challenge to the compatibility of the scheme with provisions of EU law that required a connection between the safe third country of removal and the asylum claimant. The matter of compatibility was not considered, as it was concluded that those provisions were not retained EU law. The policy was further found not to be contrary to the Refugee Convention. In relation to a ground of systemic unfairness, the Court held that the Rwanda policy had the capacity to be operated in a lawful way, and therefore was not unlawful, applying the principles set out by the Supreme Court in R (A) v Secretary of State for the Home Department  1WLR 3931.
The Court therefore rejected all general grounds and concluded that the Rwanda policy is lawful. Nonetheless, it was found that the SSHD had implemented the policy in a flawed manner in the case of the eight individual Claimants whose claims the Court considered. In view of this, the Court quashed the decisions on inadmissibility and removal decisions, and/or the human rights decision for each of these Claimants. These decisions will have to be reconsidered lawfully before the policy can be applied to them.
Further claims have been stayed. Given that the generic grounds of challenge have failed (subject to appeal), those claims will be considered on their own individual facts.
Whilst this judgment is by all means disappointing, it does demonstrate the inherent limitations involved in the review of the lawfulness of government policies, as opposed to the lawfulness of their implementation in individual cases. However, the references to the evidence of the United Nations High Commissioner for Refugees in relation to the competence and the capacity of the Rwandan asylum system to effectively determine asylum claims, especially with regard to LGBTQ+ asylum claimants and political opponents, together with the evidence of a similar agreement between Israel and Rwanda in 2013 and its disconcerting results cast doubt on the Court's decision: particularly, the finding that the SSHD's conclusion that Rwanda is, presumptively, a safe third country, rested on the required thorough assessment (per Ilias).
It is also noteworthy that, had it not been for Brexit and the repeal of EU law in the UK, the Rwanda policy would have likely been unlawful on account of being incompatible with EU law, which requires a connection between the asylum claimant and the safe third country of return.
It remains to be seen whether the Divisional Court's decision in relation to the general challenge to the policy will be appealed and, if so, what the outcome will be. Notwithstanding this, it is clear that the SSHD will need to properly consider the circumstances of each individual claimant, before deciding whether they should not be removed to Rwanda and have their asylum claim determined there. Challenges to unlawful decisions made in pursuance of the policy remain open to individuals affected by them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.