Expert Analysis: The Supreme Court rules the UK-Rwanda Policy Unlawful

Posted on: 17 November 2023 by Professor Valsamis Mitsilegas in Blog

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Our Dean of the School of Law and Social Justice reflects on this week’s decision by The Supreme Court to rule the UK Government’s policy to deport asylum seekers to Rwanda unlawful, backing the Court of Appeal’s judgement.

Article by Professor Valsamis Mitsilegas, Professor of European and Global Law, School of Law and Social Justice.

The ruling (R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants), [2023] UKSC 42), emanates from an appeal concerned with the Home Office’s policy that asylum seekers in the UK should not have their claims considered in country, but should instead be sent to Rwanda to claim asylum there. With their claims being decided by the Rwandan authorities; if their claims are successful, they will be granted asylum in Rwanda (para 1). The policy is based on a Memorandum of Understanding between the UK and Rwandan governments and two Notes Verbales including assurances by the Rwandan Government (para. 8). The Supreme Court reminds us that the MoU is not binding in international law, that it does not create or confer any right on any individual, and that compliance with it is not justiciable in any court of law (para. 12).

In a unanimous ruling, the Supreme Court held that the UK-Rwanda scheme is contrary to the principle of non-refoulement (para 105). The present commentary will highlight three key strands in the Court’s reasoning: 1) the legal foundations of the principle of non-refoulement; 2) the assessment of Rwanda as a safe third country; and 3) the role of the judiciary in scrutinising government assessments on the designation of third states as safe.

The multifaceted legal foundation of the principle of non-refoulement

The Supreme Court emphasised that the principle of non-refoulement is enshrined in a multitude of international law instruments which are binding on the UK: the Refugee Convention (para. 20); the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (“UNCAT”) (para. 21); the United Nations International Covenant on Civil and Political Rights of 1966 (“ICCPR”) (para. 22); and the ECHR (para.23). Significantly, the Supreme Court held that it may be that the principle of non-refoulement also forms part of customary international law, noting that the United Kingdom has subscribed to this view, along with the other states parties to the Refugee Convention, in the 2001 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (para. 25).

The approach of the Supreme Court in this matter is significant, as it decouples the prohibition of non-refoulement from the exclusive domain of the controversial within certain political circles ECHR. The Court concluded that the principle of non-refoulement is therefore given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party and that it is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law (para. 26). Under domestic law, asylum seekers are protected against refoulement by a variety of legal sources: not only by the Human Rights Act but also by provisions in the 1993 Act, the 2002 Act and the 2004 Act, under which Parliament has given effect to the Refugee Convention as well as the ECHR (para. 33).

Rwanda as a Safe third country

The Supreme Court came to the conclusion that the Court of Appeal was entitled, on the evidence before it, to consider that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement in the event that they were removed to Rwanda (para. 73). The Court examined in this context: i. the general human rights situation in Rwanda (paras 75-76); and the adequacy of Rwanda’s asylum system (para. 77-94). In terms of the latter, the Supreme Court held first that there are concerns which relate to the asylum process itself (para. 79). Secondly, there are concerns about the willingness of the judiciary to find against the Rwandan government (para. 82). The Supreme Court further noted that risk of a lack of independence in politically sensitive cases not only in the judiciary, but in terms of the provision of independent legal advice (para. 83) and also noted the absence of legal representation (para. 84).

Secondly, the Supreme Court raised concerns related to the outcome of the asylum process. It referred to UNHCR’s evidence showing 100% rejection rates at RSDC level during 2020-2022 for nationals of Afghanistan, Syria, and Yemen, from which asylum seekers removed from the United Kingdom may well emanate and noted that this his is a surprisingly high rejection rate for claimants from known conflict zones. By comparison, Home Office statistics for the same period show that asylum claims in the United Kingdom were granted in 74% of cases from Afghanistan, 98% of cases from Syria, and 40% of cases from Yemen (para. 85). The Court further noted UNHCR evidence raising concerns of non-compliance by Rwandan authorities with obligations under the Refugee Convention in the interests of the Rwandan government’s foreign relations (para. 86). A third concern raised by the Supreme Court is Rwanda’s practice of refoulement (paras 87-90), finding that the Home Office had failed to engage with Rwanda’s return practices, and with documented instances of refoulement (para.90). A fourth concern is the apparent inadequacy of the Rwandan government’s understanding of the requirements of refugee law, with its response to UNHCR’s evidence demonstrating a misunderstanding of the meaning of the concept of refoulement (para. 91).

A key aspect of the Supreme Court’s judgment was the question of whether to focus on reality on the ground or on the assurances given by the Rwandan government with regard to the treatment of asylum seekers in Rwanda in the future under the MoU. The Court noted that the defects in past and current practice are important factors in assessing future risk, particularly because the MEDP does not establish a new asylum process, but is based on the continuation of the existing system operated by the Rwandan authorities. The Court held that there is reason to apprehend that there is a real risk that the practices described above will not change, at least in the short term. The provision of resources by the UK government does not mean that the problems which we have described can be resolved in the short term. Monitoring arrangements may be capable of detecting failures in the asylum system, and over time may result in the introduction of improvements, but that will come too late to eliminate the risk of refoulement currently faced by asylum seekers removed to Rwanda. Furthermore, the suppression of criticism of the government by lawyers and others is liable to discourage the reporting of problems, and so undermine the effectiveness of monitoring. It is also unclear whether the monitoring arrangements could provide a solution to problems emanating from the Rwandan government’s interpretation of its obligations under the Refugee Convention, or from a lack of independence in the legal system in politically sensitive cases (para. 93).

The Supreme Court continued with a passage of very strong wording which we will quote verbatim:

‘The Secretary of State advances a somewhat surprising argument to the effect that it does not matter if asylum claims are not processed correctly, because asylum seekers will not be subject to refoulement in any event. In relation to that argument, we note that if an asylum claim is wrongly rejected, and the asylum seeker does not have some other entitlement to remain in Rwanda, the government of Rwanda undertakes under paragraph 10.4 of the MOU (set out at para 9 above) to remove the person only “to a country in which they have a right to reside”. That country will normally be the country of which the asylum seeker is a national or citizen: that is to say, the country which he has fled, and in which (ex hypothesi) he faces persecution.’ (para. 94).

The Supreme Court backed up these arguments by examining the precedent of the Israel/Rwanda arrangements under which persons from Eritrea and Sudan who sought asylum in Israel were removed to Rwanda in order for their claims to be processed there (para. 95). The Court noted that the apparent failure of the Rwandan government to fulfil its undertaking to comply with the principle of non-refoulement is relevant to an assessment of the risk of refoulement under the arrangements entered into with the government of the United Kingdom (para. 100). Finally, the Court addressed the argument that the Rwandan government entered into the arrangements with the UK in good faith. The Court accepted the reputational and financial incentives of the Rwandan government to adhere to the arrangements but added:

‘Nevertheless, intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice. The central issue in the present case is therefore not the good faith of the government of Rwanda at the political level, but its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement (including in the context of an analogous arrangement with Israel), and the scale of the changes in procedure, understanding and culture which are required.’ (para. 102).

The Supreme Court added that in agreement with the Court of Appeal, it considers that the past and the present cannot be effectively ignored or sidelined as the Secretary of State suggests- risk is judged in the light of what has happened in the past, and in the light of the situation as it currently exists, as well as in the light of what may be promised for the future (para. 103). The matters discussed are evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention. The evidence also goes some way to support the suggestion of a dismissive attitude towards asylum seekers from the Middle East and Afghanistan. It is also apparent from the evidence that significant changes need to be made to Rwanda’s asylum procedures, as they operate in practice, before there can be confidence that it will deal with asylum seekers sent to it by the United Kingdom in accordance with the principle of non-refoulement. The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring (para. 104).

The Supreme Court concluded that, as matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. (para. 105). The Court accepted the Secretary of States’ submission that the capacity of the Rwandan system (in the sense of its ability to can and will be built up- the structural changes and capacity-building needed to eliminate the risk of refoulement may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings (para. 105).

The relationship between the judiciary and the executive - the rule of law

A key question underpinning the Rwanda litigation in all instances from the Divisional to the Supreme Court has been the extent to which the judiciary is under the duty to scrutinise executive decisions and assessments which have human rights implications- in the present case the assessment by the UK government that Rwanda is a safe third country. This question is fundamentally a rule of law question, testing the extent to which the executive is bound by the rule of law. The Court of Appeal overturned the approach by the Divisional Court, by finding that the Divisional Court did not apply the correct scrutiny test by being essentially deferential to the executive’s assessment – with the Divisional Court seemingly seeing its function as reviewing the Secretary of State’s assessment and deciding whether it was a tenable view, rather than making its own assessment of the grounds for apprehending a risk of refoulement in the light of the evidence as a whole (para. 39). The Supreme Court did not address this issue directly, but still held that it was satisfied that the Court of Appeal was entitled in any event to interfere with the Divisional Court’s conclusion and to consider the question for itself (para. 41).

The Supreme Court held that the Divisional Court’s approach to rely primarily on the government’s assessment of Rwanda as a safe third country on the basis of assurances was mistaken (paras 51-52). The court has to make its own assessment of whether there are substantial grounds for believing that there is a real risk of refoulement. It is not required to accept the government’s evaluation of assurances unless there is compelling evidence to the contrary (para. 52). The government is not necessarily the only or the most reliable source of evidence about matters which may affect the risk of refoulement (para. 55). The Court did not accept the government’s suggestion, that assessing the value of assurances given by another country, in the present context, is analogous to assessing whether a particular course of action is in the interests of national security (para. 56). The Court further placed particular weight on the assessment made by UNHCR, both due to its institutional position and due to its expertise (paras 64-66) and noted the particular weight given to UNCHR evidence by the Strasbourg Court (para.67).

The Supreme Court’s finding is extremely important for upholding the rule of law. It sets executive action within the parameters of meaningful, independent, evidence- based judicial review focusing on the protection of human rights on the ground. The government’s reaction to the Supreme Court ruling, and proposals to pass emergency legislation designating Rwanda as a safe third country, blatantly disregard both the substance and the spirit of the Supreme Court’s ruling. The passage of emergency legislation in those terms is a challenge to the rule of law in ignoring the key findings at the heart of the Supreme Court’s ruling. The judiciary may be called to intervene again.

 

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