On 29 June 2023 the Court of Appeal issued its decision in the case of AAA v SSHD [2023] EWCA Civ 745. 10 appellants and Asylum Aid had been given permission to argue 22 grounds of appeal against a decision of the High Court. The case relates to the Government's plans to remove asylum seekers to Rwanda where they will have their cases decided. The shorthand reference to this policy has become known as the Rwanda Plan.
Ultimately, in a 161-page decision, the Court of Appeal found that the plan is unlawful as the Rwandan Government cannot safely administer the Rwanda Plan. This is good. However, the decision was not unanimous, which is worrying, and the Government will certainly appeal to the Supreme Court. This is a positive decision, but the proceedings continue.
The decision succinctly distills the 22 arguments down to 3:
- Is Rwanda a safe country for asylum seekers?
- Will asylum seekers be returned to their home countries (refoulement) or face breaches of their Article 3 rights?
- Will asylum claims be fairly and properly determined in Rwanda?
If the answer to any of the above is "no", or even "maybe", then the policy cannot stand.
Throughout proceedings there has been a tension between the Government's position and the objective evidence relied upon by the appellants. The Government relies on diplomatic assurances from the Rwandan Government and states that these assurances are sufficient to outweigh examples of mistreatment of asylum seekers who are not covered by the assurances. Essentially, the Government is seeking to ignore evidence of mistreatment on the promise from the Rwandan Government that asylum seekers will not be mistreated - I hope you can see why those facing removal are trying to remain in the UK.
The appellants have a wealth of evidence of mistreatment and failures in the asylum process in Rwanda - you can probably see why the UK Government sought to rely on future promises.
At Paragraph 6 of the decision, the Court confirms the submission of the UNHCR which issued a rare and unequivocal warning that there should be no transfers because of the clear view that the arrangement was incompatible with the UK's obligations under the Refugee Convention. The Government argued this was irrelevant; effectively saying everything unhelpful to their case could be ignored in favour of the assurances from the Rwandan Government.
Distilling 161 pages of a legal decision is difficult. The following is a basic review.
The Court of Appeal found that the High Court had failed to consider properly the risks in Rwanda. The Government was allowed to conclude Rwanda was safe. but the Court should have considered this issue and reached its own conclusion. After considering the evidence, and giving weight to the UNHCR report, the Court of Appeal found those removed under the Rwanda Plan would face real risks of mistreatment.
Although the Rwandan Government has committed to good practice, the institutions that have caused various human rights breaches in the past remain and will administer the Rwanda Plan. This creates a real risk of mistreatment despite the assurances which the UK Government relies so heavily upon. In particular, issues were found with:
- The way asylum seekers are interviewed
- The lack of access to legal representation
- The lack of access to interpreters
- The Rwandan failure to understand the meaning of refoulement
- The prejudice in the Rwandan court system and pressure from the Rwandan Government
Despite the above, the concept of a safe third country was not found to be unlawful. Rwanda is not safe but the idea of sending asylum seekers to a safe country to have their claims considered was not found to be unlawful.
One of the judges, Lord Burnett, did not agree with the majority decision. This is not a done deal and the Supreme Court will almost certainly be hearing these arguments in the coming months.
The practical position for anyone facing removal to Rwanda remains the same. Highlighting individual risks is more important than reliance on general risks.
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.
