Sheona York Kent Law Clinic 5/7/23
On 29/6/23 the Court of Appeal, by a majority of two to one, allowed the appeal of 10 applicants against a decision of the Divisional Court 19/12/22.[1] That court had decided that the government’s policy of removing asylum-seekers to Rwanda for their asylum claims to be processed there was lawful.
In a lengthy judgment in which all three judges dealt with over 20 separate grounds of appeal, the Court of Appeal agreed on the essential question to be answered by the courts. This was whether there were substantial grounds for believing that ‘transferred individuals’ would face a real risk of breach of article 3 ECHR,[2] whether because of problems they might face in Rwanda itself, or through being forcibly returned to their own countries following poor asylum decision-making by the Rwanda authorities. Article 3 ECHR sets out an absolute right not to be subjected to torture, inhuman or degrading treatment. If there were such substantial grounds, the policy would be unlawful. The judges also agreed that to satisfy themselves that there were not such substantial grounds, a ‘thorough examination’ of Rwanda’s asylum procedures had to be carried out.[3] This was because, in deciding to transfer applicants to Rwanda without considering their asylum claims, the UK could not know whether the person might face art 3 harm, or simply be an economic migrant – and so had to be able to rely on the asylum determination procedures of the proposed safe country.
The case was heard by three very senior judges – Sir Geoffrey Vos, Master of the Rolls, Lord Justice Underhill, Vice-President of the Court of Appeal, and the Lord Burnett of Maldon, Lord Chief Justice of England and Wales. The majority judges Vos MR and Underhill LJ held, in short, that the Divisional Court had adopted an entirely wrong legal approach and thus had failed to answer that essential question either properly or at all. They decided that the Divisional Court had adopted ‘a normal judicial review approach’, where a Court is not expected to come to its own view on the evidence, but confines itself to reviewing whether the Home Secretary had met her duties ‘to ask herself the right question and take reasonable steps to acquaint herself with the relevant information to enable her to answer it correctly[4] – the normal public law test. However, in a case involving human rights, a court is required to look at the evidence and come to its own decision. Lord Burnett, dissenting, briskly found that the Divisional Court had of course asked itself that essential question, and, in relying on the Government’s view of the evidence, had done nothing improper.
Considering the essential question, the majority judges found, on the evidence before the Divisional Court, that there were substantial grounds for believing that sending the claimants to Rwanda for their asylum applications to be considered would put them at a real risk of breach of their art 3 rights. Underhill LJ also held that, even if the Divisional Court’s ‘judicial review’ approach to the case had been correct, the evidence before it had been strong enough for that court to have concluded that the Government could not reasonably have been satisfied that Rwanda would be able to deal adequately with ‘transferred individuals’ asylum claims so as to avoid the risk of art. 3 harm.
The majority judges’ decisions were largely based on evidence from the UNHCR. First, they carefully set out the legal basis for giving ‘importance, but not preeminence’ to evidence from the UNHCR, a party to the Refugee Convention. It was noted that Rwanda is host to around 150,000 refugees from neighbouring countries, who have been accepted on a group basis and who are being supported with the help of UNHCR. However, Rwanda’s system for determining refugee status for individual applications was described as at an early stage of development, and lacking the safeguards necessary to be sure that applications were dealt with in accordance with the Convention. (In the two years 2020 to July 2022 they had only processed 319 applications, according to the UNHCR). This meant that there would be a real risk of those with meritorious claims being wrongly refused and facing refoulement (forced return) to the country from which they had fled.
Sir Geoffrey Vos MR quotes and comments on the UNHCR evidence:
‘The UNHCR’s evidence was that Rwanda’s asylum process is “marked by acute arbitrariness and unfairness, some of which is structurally inbuilt, and by serious safeguard and capacity shortfalls, some of which can be remedied only by structural changes and long-term capacity building”. The DGIE [Directorate General of Immigration and Emigration] plays the role of gatekeeper to the entire system. Although the DGIE is not authorised in law to reject asylum claims, and despite Rwandan Government denials, it summarily rejected without reasons 8% of the 319 asylum claims of which the UNHCR was aware between 2020 and June 2022. There are serious deficiencies in the rights of an asylum seeker to be heard after a perfunctory 20-30 minute interview with the DGIE, from which lawyers and representatives are excluded. The process at all levels, before the DGIE, the RSDC (Refugee Status Determination Committee) and the Minister, is marked by an absence of representation, interpretation and written reasons. Where reasons are provided, they are often perfunctory and inadequate: … “Refugee Status requested was not granted because you don’t meet the eligibility criteria, and the reasons you provided during the interview were not pertinent”. There has not yet been an appeal to the [Rwandan] court and there are concerns as to the willingness of the [Rwandan] judiciary to find against the Rwandan Government. The same processes of DGIE, RSDC, and the Minister, as have proved defective in the past, are envisaged under the MEDP. (Migration and Economic Development Partnership, the agreement governing transfers from the UK)’ [95]
Elsewhere, in further UNHCR evidence which was described as ‘controversial’, it had been reported that Middle Eastern applicants had been rejected at Kigali Airport, and that gay and lesbian applicants had been rejected without their claims being registered. Evidence was provided that the Rwanda government did not appear to understand the concept of refoulement, which is central to the Refugee Convention. Evidence from other sources had also been presented about defects in Rwanda’s observance of human rights norms:
‘… (i) opportunities for political opposition in Rwanda were very limited and closely regulated, (ii) there were restrictions on the right of peaceful assembly, freedom of the press and freedom of speech, (iii) from a US State Department report of 2020, political opponents have been detained in “unofficial” detention centres and that persons so detained have been subjected to torture and article 3 ill-treatment short of torture, and (iv) prisons in Rwanda are over-crowded and the conditions are very poor.’ [51]
Despite this evidence, none of the judges found that ‘transferred individuals’ would face a real risk of art 3 harm in Rwanda itself, though Underhill LJ was concerned about this question, and noted that UK officials were themselves concerned about Rwanda’s treatment of dissent. For Vos MR and Lord Burnett LCJ, this finding was based on their view that the proposed ‘transferred individuals’ did not come into the categories of persons who had been targeted by the government, and moreover would be placed in Rwanda as part of a special scheme, with special safeguards and close monitoring.
All three judges rejected the remaining grounds of appeal. These included whether removing individuals to Rwanda counted as a ‘penalty’ in breach of art 31 of the Refugee Convention, which rules out punishments for entering a country illegally in order to claim asylum; whether an EU requirement for a person to have a connection with a proposed safe country was still good law; whether the Rwanda arrangement breached data protection laws: and whether the provisions for challenging a Notice of Intent of removal to Rwanda were procedurally fair. On this last, Underhill LJ noted that applicants were not informed about the possibility of extending the 7-day time limit for making such a challenge. He says:
I do not think it is good enough that that policy is not formally published in the form of guidance to caseworkers nor referred to in the Notice of Intent. Claimants and their advisers need to know that the seven-day timetable can be extended where that is shown to be necessary in the interests of fairness. [443]
But still does not find the current position to be unlawful, nor does he make any order regarding this issue.
The dissenting judgment of Lord Burnett
This judgment can be summarised as unwilling to criticise the Divisional Court, playing down the negative evidence, and relying heavily on the niceties of international diplomacy.
On whether the Divisional Court asked the right question, he decided that of course they did. He notes that the appeal presented a ‘plethora of badly-pleaded issues’ and seems to suggest that this was what led the Divisional Court to present ‘normal judicial review’ arguments and ‘human rights’ arguments together. He concludes on this question that if the Divisional Court truly had addressed the wrong question, the matter should be remitted and reheard in that court. But, since that would lead to significant delay, he would consider the evidence and determine the issue for himself [491].
His review of the evidence unfortunately reads like a typical Home Office asylum refusal letter. First, the UNHCR’s evidence is downgraded by implication. He notes the UNHCR’s strong institutional interest in the outcome of the case, and its institutional opposition to ‘offshoring’ asylum decision-making. He speaks about the ‘hyperbole’ surrounding the announcement of the Rwanda policy, as if ‘thousands’ of asylum-seekers were to be sent there, whereas this case concerned a very small group from the original 47 applicants. This implies that he understood the anxiety about Rwanda’s capacity to deal with these claims properly to be solely based on the numbers, whereas the ‘capacity’ issues concerned the level of understanding of refugee law itself, and the willingness of the Rwandan authorities to deal properly with the issues. He notes the concerns raised about Rwanda’s potential attitude to asylum-seekers from ‘an unidentified country’, suggesting that we all know which country is meant, and that this can be solved by the UK not sending anyone from that country to Rwanda. Similarly with fears about lesbian and gay claimants: Lord Burnett’s quick solution to this is simply to not send any of them (though this ignores the fact that the scheme proposes to send claimants without any consideration of their claim).
On the essential question of real risk of art 3 harm, he relies on the general practice of international diplomacy, and on the terms of the UK-Rwanda agreement itself, to find that there is no basis for supposing that the asylum applications of ‘transferred individuals’ won’t be dealt with correctly. In relation to the danger of refoulement, his arguments seem contradictory. At one point he dismisses UNHCR evidence about past events (as being in the past, and reforms have taken place since then). Elsewhere he argues that we are not looking at future plans designed to cater for thousands of people transferred, but at what, at the date of the decisions respecting the Claimants [July 2022] would have happened to them. However, after ‘sharing his concern at past poor practice’ he then describes the proposed process as designed to happen in the future, and finds that the system can be relied upon. Unattractively, he decides that refoulement is not a risk since Rwanda does not have any returns agreements with the probable countries of origin of asylum-seekers transferred from the UK. Also unattractively, he passes over criticisms about whether the agreement will be effectively monitored by saying that in reality the scheme will be monitored by contacts and information from individuals who have been removed – ‘One way or another, shortcomings in the provision of interviews, transcripts, interpreters, lawyers, reasons for decision etc. in accordance with the agreement would readily come to light with a good chance of their being dealt with.’ [503] On this, a practitioner might note that ‘a good chance’ would mean at least over 50%, leaving what still could be what counts in asylum law as a ‘real risk’ – say 20% or 30% – of failure. He concludes by finding that Rwanda’s interest in its international reputation will ensure that its government fulfils the agreement.
As to whether ‘transferred individuals’ will face a risk of art 3 harm in Rwanda itself, Lord Burnett’s argument is truly superficial. He finds that none of the claimants in the case appear to exhibit any of the political or other characteristics which may draw the attention of a government which he recognises as leaving much to be desired in terms of human rights observance. He looks briefly at the claimants’ arguments that, as asylum-seekers and refugees in Rwanda, they may face discrimination contrary to the Refugee Convention. He dismisses this argument by saying, effectively, that the Convention only prohibits less favourable treatment: refugees and asylum-seekers cannot expect to be treated better than Rwandan society in general.
Conclusion
Government responses to the judgment suggest that an appeal will definitely be made to the Supreme Court. It is difficult indeed to predict what might happen there. There is a strong feeling amongst human rights commentators and academics that the post-Baroness Hale Supreme Court is less interested in human rights, and more concerned with careful development of common law principles. However, I would suggest that the essential question raised in this case – of real risk of art 3 harm – and its precedence over ‘normal judicial review’ considerations, is too strongly embedded in UK jurisprudence to be set aside by a different approach from the Supreme Court. This leaves that court to disagree with the Court of Appeal judges over their assessment of the evidence – which, in my view, explains the thoroughness with which the majority judges set out the evidence and their views about it.
What will happen to the policy?
Meanwhile, as we have seen, the government’s own Impact Assessment[5] stated that each return to Rwanda will cost the UK £190,000, compared to £106,000 to process them in the UK, based on it taking 4 years to process an asylum application. Clearly, any reasonable reduction in that timeframe makes the Rwanda policy financially absurd. It may be that the policy will be abandoned as unaffordable, before the Supreme Court has to hear any appeal.
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[1]AAA v Secretary of State for the Home Department (Rwanda) [2022] EWHC 3230 (Admin) https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2022/3230.html&query=(rwanda)
[2] This test is set out in Soering v. United Kingdom (1989) 11 E.H.R.R. 439
[3] This test is set out in Ilias v. Hungary (2020) 71 E.H.R.R. 6
[4] This test is set out in Tameside (Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014 at 1064-1065
[5]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1165397/Illegal_Migration_Bill_IA_-_LM_Signed-final.pdf