Court Of Appeal Finds Rwanda Policy Unlawful

• Published date: 11 July 2023
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, Human Rights, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

In a judgment published on 29 June 2023, the Court of Appeal allowed by a majority the appeal against the decision of the Divisional Court in the judicial review challenge to the Rwanda policy. The appeal was against the Divisional Court's rejection of the generic challenges to the policy. Most of the Appellants (then Claimants) had been successful in challenging the lawfulness of the decisions certifying their human rights claims on individual grounds and the Secretary of State for the Home Department ("SSHD") did not appeal against the Divisional Court's decision on this matter.

Held

Sir Geoffry Vos, Master of the Rolls ("MoR") and Underhill LJ both concluded that the Divisional Court had erred in its approach to the consideration of whether there were substantial grounds for believing that the asylum seekers removed to Rwanda would be subjected to a real risk of treatment contrary to article 3 of the European Convention on Human Rights, i.e. the test established by the Strasbourg Court in Soering v. United Kingdom (1989) 11 E.H.R.R. 439 (Soering). The Lord Burnett of Maldon, Lord Chief Justice of England and Wales ("LCJ") dissented, finding no error in the Divisional Court's decision. In view of the majority finding, the Court of Appeal proceeded to consider the matter for themselves, with reference to the relevant evidence. Underhill LJ and the MoR held by majority that there were substantial grounds for believing there were real risks of article 3 ECHR breaches in accordance with the Soering test. The LCJ reached the opposite conclusion.

The Court of Appeal further considered the Divisional Court's decision on the remaining generic grounds that had been raised by the Claimants at the judicial review stage. Given their finding on the Soering issue, it was considered unnecessary by the majority to determine the issues relating to the rationality of the SSHD's decision on whether Rwanda was a safe country, or the adequacy of the SSHD's enquiries on this matter by reference to the procedural requirement of Ilias v. Hungary (2020) 71 E.H.R.R. 6 (Ilias) and the test in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014 (Tameside). Whilst the MoR thought it unnecessary to determine this matter, he stated he would have agreed with Underhill LJ's judgment that the Rwanda policy was unlawful per the test in Gillick v. West Norfolk and Wisbech AHA [1986] AC 112 (Gillick), as it positively authorised or approved removals that would involve a breach of article 3 ECHR. In view of his dissenting judgment on the Soering issue, the LCJ held that the Rwanda policy was not unlawful in Gillick terms and that the Divisional Court had been right to conclude that the SSHD had complied with her Ilias (investigative) and Tameside duties.

Similarly, having found that Rwanda was not a safe country, MoR and Underhill LJ held that the certifications of the asylum and human rights claims under paragraphs 17(c) and 19(c) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ("2004 Act") were unlawful, separately to the individual findings of unlawfulness by the Divisional Court, which had not been challenged by the SSHD. The MoR noted that the certification test is stricter than the ("substantial grounds") Soering test. Despite his dissent to the majority finding that Rwanda was not a safe third country, the LCJ agreed that the asylum and human rights claims should not have been certified, given that the question of safety is contestable.

The Court of Appeal unanimously rejected the Appellants' remaining grounds. It was held that the Divisional Court had correctly decided that the removal of asylum seekers to Rwanda was not inconsistent with the Refugee Convention; that the Procedures Directive no longer forms part of UK law, and therefore the inconsistency between its requirements and the Rwanda policy does not render the latter unlawful; that there was no presumption of Rwanda's safety by the SSHD in circumvention of the statutory framework of the 2004 Act; and that any alleged breaches of the UK GDPR would not, even if established, have invalidated the SSHD's decisions made on the basis of the Rwanda policy. The last issue was considered for permission to appeal on a rolled-up basis and permission was refused for lack of any real prospect of success.

Finally, it was also held...