A majority of the Court of Appeal’s judges concluded that the Rwanda plan is illegal since Rwanda is not a secure enough nation. In other words, there is a significant risk that real refugees will be sent back to their home countries where they would face persecution because the Rwandan authorities are not yet reliably able to distinguish between genuine and non-genuine migrants. For instance, Rwanda presently rejects all applications from Afghans and Syrians.
The Master of the Rolls, Sir Geoffrey Vos, and Lord Justice Underhill, Vice-President of the Court of Appeal Civil Division, deliver the majority judgement. Lord Chief Justice Lord Burnett dissented and would have rejected that specific appeals issue.
The Rwanda plan’s additional appeals on all other grounds were unanimously rejected by the claimant asylum seekers.
Rwanda Not A Safe Third Country
Separate opinions are delivered by Sir Geoffrey Vos and Lord Justice Underhill. Read collectively, their conclusion is that there are good reasons to believe that people sent to Rwanda face a real risk of being sent back to their country where they faced persecution or other inhumane treatment even though they have a strong asylum claim due to flaws in the Rwandan asylum system.
Thus, the Rwandan plan violates Article 3 of the ECHR, more specifically the test outlined in Soering v. United Kingdom (1989) 11 E.H.R.R. 439, which declares a decision or policy to be against Article 3 when there are good reasons to think that doing so would put asylum seekers at a real risk of suffering Article 3 mistreatment.
This judgement is supported by data, notably that provided by UNCHR, which shows that, prior to the Rwanda plan’s finalisation, Rwanda’s mechanism for evaluating asylum petitions was deficient.
The following points are emphasised in Lord Justice Underhill’s decision as supporting the conclusion that the Rwandan system was not consistently fair and effective at the relevant dates, despite the majority’s emphasis (in agreement with Lord Burnett) that there is no evidence to suggest that the Rwandan Government entered the agreement in bad faith:
- the proof of how interviews for asylum are performed.
- the inability of claimants to use legal representation to present their claims.
- the proof that the body in charge of deciding on asylum requests lacks the knowledge and expertise needed to render accurate judgements.
- According to the findings, NGOs that claim to be able to offer legal assistance are unlikely to have the necessary resources.
- The Rwandan High Court’s appeals procedure is entirely untested, and there are reasons to be concerned about whether Rwanda’s judicial culture makes justices hesitant to overturn executive decision-makers’ choices.
Due to this, Sir Geoffrey Vos, Master of the Rolls, came to the conclusion that “there was simply insufficient evidence to demonstrate that officials would be trained adequately to make sound, reasoned decisions” (para. 99) based on the evidence presented to the court. The ruling by Lord Justice Underhill that “the Rwandan system for refugee status determination was not, as at the relevant date, reliably fair and effective” (para. 263) echoed this conclusion.
The Rwandan government’s promises to the UK government were deemed insufficient. Vos MR cited the Israeli Supreme Court’s determination that the Rwandan government had previously violated a comparable Israel-Rwanda agreement (para. 102). Given that at least 12 Congolese refugees had been shot and killed by Rwandan police in 2018, this was crucial not only for the asylum process but also for the refugees’ personal safety. Vos MR continues, “(para 104)
- Uncritical acceptance of the SSHD’s assertion that all genuine risk of article 3 violations can be eliminated by the unequivocal guarantees in the MEDP [the acronym for the UK-Rwanda partnership] is problematic because Rwanda still has structural institutions in place that contributed to prior violations.
The British government’s response to this matter has drawn criticism from Underhill LJ. He acknowledges that officials weren’t just “going through the motions” but continues (paragraph 268).
- The late emergence of the interpreters problem is an example of how the officials in question were too willing to accept assurances that were unparticularized, unsupported, or the details of which were unexplored, possibly as a result of the pressure of the timetable to which they were required to work.
He continues by referencing the Independent Advisory Group on Country Information’s examination of the country information used by the UK government, which was done on behalf of the Independent Chief Inspector of Borders and Immigration.
Importantly, the majority believed that Rwanda was not a secure country to send refugees to have their claims decided and that the UK was not required to decide the asylum claims of refugees who arrived within its jurisdiction. The judges leave open the idea of sending refugees to a nation that is actually safe.
All Other Grounds Of appeal Dismissed
The Rwandan plan’s other appeals from claimant asylum seekers have all been rejected. The Court’s findings are summarised in this paragraph.
First, with regard to the impact of the Refugee Convention, the Court of Appeal agrees with the High Court in concluding that Article 31 does not, in theory, bar the UK from returning asylum seekers to a secure third country.
Second, with regard to retained EU law, the Court of Appeal agrees with the High Court that, as a result of primary legislation following Brexit, 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.
Third, the Court of Appeal agrees with the High Court in concluding that it was legal to utilise instructions to case workers to classify Rwanda as a safe third country rather than a formal legislative classification.
Fourth, the Court of Appeal agrees with the High Court that violations of data protection law do not in and of themselves render deportation to Rwanda illegal.
Fifth, the Court of Appeal concludes that the seven-day period does not make the decision-making process “structurally unfair and unjust,” even though they find that the Government must provide caseworkers with guidance emphasising the need for flexibility in granting extensions to the seven-day time limit where fairness requires it.
The Effect Of The Judgment
As a result of the Court of Appeal’s ruling, Rwanda is no longer considered to be a safe third country, and it is therefore illegal to remove asylum seekers from the nation unless and until the country’s asylum procedures are improved.
It is highly possible that the case will get to the Supreme Court. Given the disagreement among the judges, it appears very likely that the Court of Appeal will grant authorization on its own. It’s unclear how long that will take, but it will probably just be a few months. Given the majority judgement of the court, it is obvious that no removals to Rwanda will be permitted in the meantime.
Given that the case raises significant issues of human rights law, it also appears likely that the case would move on to the European Court of Human Rights regardless of the decision made by the Supreme Court.
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Written by:
Ghulam Mustafa
Director, Barrister