The High Court Grants Permission For Rwandan Appeals

The High Court held a hearing on January 16, 2023, to address any issues raised by its decision, which was released on December 19, 2022. In our earlier blogs, we’ve written more about the case and its ramifications. A complete copy of the ruling and a summary are available here and here.

In this instance, the numerous claims were heard collectively. This indicates that both the eligibility to request judicial review and the merits of the grounds were considered. All the justifications put forth by individual asylum seekers and Asylum Aid were accepted.

Three organizations – the Public and Commercial Services Union, Detention Action, and Care4Calais – were denied permission. The latter two organisations were denied permission to file for judicial review because they lacked “surrogate standing,” and the Public and Commercial Services Union was determined to lack “associational standing.” The court determined that people were more qualified to file the claims.

Authorization To Appeal

The September and October 2022 hearings had six different legal teams, and the court’s rulings regarding permission had the effect of removing two of them (SAA and AB). The following is a description of the grounds for the Court of Appeal authorization.

First, it must be determined if Rwanda’s government’s promises (as stated in the Memorandum of Understanding and Notes Verbales) are sufficient to shield relocated asylum seekers from the threat of refoulement and other violations of Article 3.

To discourage others from travelling irregularly to the UK in search of protection, does the policy of declaring asylum claims made by people who make perilous journeys inadmissible and deporting them to Rwanda fall under the definition of a good faith interpretation of the Refugee Convention and/or constitute a violation of Article 31?

Whether it was legal for the Home Secretary to certify human rights accusations as “obviously unsubstantiated” when her published evaluation document had the effect of raising the perception that Rwanda was secure. The Home Secretary’s decision to officially declare Rwanda a safe nation depends on whether she was obligated to follow the legislative process outlined in the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.

Whether the policy violates the provisions of Council Directive 2005/85/EC (the Procedures Directive), specifically Articles 25 and 27. According to Article 27(2), the Procedures Directive requires, among other things, that rules governing the return of asylum seekers to safe third countries be “laid down in national legislation” and that there be “a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country.” The High Court agreed with the Home Secretary’s contention that these clauses no longer fall under retained EU legislation because of the impact of section and Schedule 1 of the Immigration and Social Security Coordination (EU Withdrawal) Act 2020.

Additionally, consider whether the decision-making procedure that resulted in the relocation to Rwanda was unjust in general and/or unlawfully impeded court access. On this matter, Asylum Aid has taken the initiative and been given permission. It all depends on what objections specific asylum seekers should be permitted to raise in response to a notification of intention to deport to Rwanda on the grounds of injustice. For instance, the court determined there was no legal necessity that they be permitted to make claims about the common opinion that Rwanda is a secure third-party state. Additionally, it depends on whether they need a lawyer to make representations on their behalf and what information must be made available to them for this reason (surprisingly, the court found that they do not).

According to CPR 52.6(1), permission was granted on these grounds rather than because the court believed the grounds “would have a reasonable probability of success” because “there is some other compelling reason for the appeal to be heard.” At this time, it is unknown which of the grounds for which permission to appeal was denied will be resubmitted to the Court of Appeal.

Costs And Comfort

On the merits, all general defences were rejected. Each human rights certification decision that had an impact on a specific asylum claimant was overturned. Most findings that individual asylum requests were ineligible were also overturned because they contained legal flaws.

According to CPR 44.2(2), the court determined that the specific asylum seekers who had one or more rulings overturned were the “successful party” (a). Additionally, it acknowledged that each claimant had only limited success and reduced costs accordingly, with orders for percentage reductions ranging from 80% to 25%. Costs were assessed against the individual claimants whose general grounds were rejected on the merits and whose judgements were not considered by the court (subject to legal aid protection).

The three organisations who were denied standing were required to cover the Home Secretary’s related expenditures. Asylum Aid was ordered to cover the Home Secretary’s defence costs up to an earlier agreed-upon amount.

The Litigation’s Potential Future

Until more appeals are decided, it appears extremely unlikely that the government will undertake another removal flight. This implies that the Court of Appeal and maybe the Supreme Court will be under pressure to hear and decide the appeals fast. If the government is successful, concerns about the policy’s compliance with Article 3 will undoubtedly be brought before the European Court of Human Rights.

The Home Office will need to make individually justified determinations to send people to Rwanda. Additionally, there will be statutory appeals to the First-tier Tribunal of the Immigration and Asylum Chamber if Article 3 allegations are not obviously erroneous. All of this suggests that, combined with a significant backlog of unresolved asylum claims, the operationalization of this policy will be left to the next government, if it ever happens at all.

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