Professor Satvinder Juss Instructed by Twinwood Law Practice, Birmingham for SAA (Sudan) and others
LORD REED and LORD LLOYD-JONES (with whom Lord Hodge, Lord Briggs and Lord Sales agree):
(1) The nature of the issue before the court
- This appeal is concerned with the Secretary of State’s policy that certain people claiming asylum in the United Kingdom should not have their claims considered here, but should instead be sent to Rwanda in order to claim asylum there. Their claims will then be decided by the Rwandan authorities, with the result that if their claims are successful, they will be granted asylum in Rwanda.
- In this appeal, the court is required to decide whether the Rwanda policy is lawful. That is a legal question which the court has to decide on the basis of the evidence and established legal principles. The court is not concerned with the political debate surrounding the policy, and nothing in this judgment should be regarded as supporting or opposing any political view of the issues.
(2) The legal framework of the policy
- For asylum claims made on or before 27 June 2022, including those with which these proceedings are concerned, the policy is given effect under paragraphs 345A to 345D of the Immigration Rules (as then in force), made in accordance with section 3 of the Immigration Act 1971 (“the 1971 Act”). In broad terms, under those paragraphs an asylum claim can be ruled inadmissible, with the consequence that the merits of the claim need not be considered, where the asylum seeker had the opportunity to apply for asylum in a safe third country but did not do so. If it is decided that an asylum claim is inadmissible, the asylum seeker can be removed either to the safe third country where the opportunity to make the asylum claim arose, if that country is willing to accept the asylum seeker, or to any other safe third country which agrees to accept him or her. The policy proceeds on the basis that the asylum seekers who are to be removed to Rwanda had the opportunity to apply for asylum in a safe third country (in most cases, France) but did not do so, and that Rwanda is another safe third country which has agreed to accept them, and to which they can therefore be removed.
- The criteria for designation as a safe third country are set out in paragraph 345B:
“A country is a safe third country for a particular applicant, if:
(i) the applicant’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country;
(ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;
(iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country; and
(iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country.”
- The principle of non-refoulement, to which paragraph 345B(ii) refers, is guaranteed by the United Nations 1951 Convention relating to the Status of Refugees (Cmd 9171) and its 1967 Protocol (Cmnd 3906) (“the Refugee Convention”), to which the United Kingdom is a party. As explained below, it requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. In order to qualify as a safe third country under paragraph 345B(ii), Rwanda must accordingly be a country in which the principle of non-refoulement will be respected, ie a country which will not return refugees to another country where their life or freedom would be threatened. As we shall explain, refoulement is also prohibited under a number of other international conventions which the United Kingdom has ratified. There are also several Acts of Parliament which protect refugees against refoulement.
- The Immigration Rules are supplemented by guidance to Home Office case workers, known as Country Policy Information Notes (“CPINs”). A CPIN entitled “Inadmissibility – Safe Third Country Cases”, published by the Secretary of State on 9 May 2022, explains arrangements for the transfer and processing of asylum seekers which have been entered into by the governments of the United Kingdom and Rwanda, known as the Migration and Economic Development Partnership (“MEDP”), and advises that certain categories of asylum seeker can be removed to Rwanda in accordance with paragraphs 345A and 345B of the Immigration Rules. Another CPIN published on the same date, entitled “Review of asylum processing – Rwanda: assessment”, considers the processing of claims for asylum in Rwanda, and advises that there are no substantial grounds for believing that a person, if relocated to Rwanda, would face a real risk of treatment that is likely to be contrary to article 3 of the European Convention on Human Rights (“the ECHR”) by virtue inter alia of refoulement or shortcomings in the asylum process. Article 3 prohibits torture and inhuman or degrading treatment or punishment. As we explain in para 28 below, by enacting the Human Rights Act 1998 (“the Human Rights Act”), Parliament has given the ECHR effect in domestic law.
- At the time of the decisions with which these proceedings are concerned, it was also necessary, in order for an asylum seeker to be removed to another country while an asylum claim was pending, for the Secretary of State to certify, under paragraph 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”), that the country in question was a place where the asylum seeker’s life and liberty would not be threatened by reason of race, religion, nationality, membership of a particular social group or political opinion, and from which the asylum seeker would not be sent to another state otherwise than in accordance with the Refugee Convention.
(3) The MEDP
- The MEDP comprises a Memorandum of Understanding (“MOU”) between the governments of the United Kingdom and Rwanda, entered into on 13 April 2022, and two diplomatic Notes Verbales regarding “the asylum process of transferred individuals” and “the reception and accommodation of transferred individuals”, executed by the government of Rwanda on the same date. As we shall explain, these documents are critical to the Secretary of State’s assessment that Rwanda is a safe third country for the purposes of paragraph 345B of the Immigration Rules. It is unnecessary to set out their terms in full, but we should draw attention to certain provisions.
- Under paragraph 9 of the MOU, Rwanda undertakes that “it will treat each Relocated Individual, and process their claim for asylum, in accordance with the Refugee Convention, Rwandan immigration laws and international and Rwandan standards, including under international and Rwandan human rights law, and including, but not limited to ensuring their protection from inhuman and degrading treatment and refoulement”. Paragraph 9 also sets out a number of procedural guarantees, including access to an interpreter and to procedural or legal assistance, and to an independent and impartial process of appeal. Paragraph 10 makes provision for persons whose asylum claims are refused. Unless they are found to have another humanitarian protection need, or are granted permission to remain in Rwanda under its domestic immigration law, they are to be treated in accordance with paragraph 10.4:
“10.4 For those Relocated Individuals who are neither recognised as refugees nor to have a protection need or other basis upon which to remain in Rwanda, Rwanda will only remove such a person to a country in which they have a right to reside.”
- Under paragraph 15 of the MOU, the United Kingdom and Rwandan governments agree to establish a monitoring committee which will report on the implementation of the arrangement, including the processing of asylum claims by the Rwandan authorities. Under paragraph 16, the United Kingdom has agreed that “a portion of Rwanda’s most vulnerable refugees” will be settled in the United Kingdom. Under paragraph 21, a joint committee of representatives of the two governments is to be formed, which will meet at least once every six months. Its remit will include monitoring the implementation of the arrangement. Financial arrangements have also been made between the two governments, which are referred to in paragraph 19. It appears from the evidence that the United Kingdom paid £20 million to Rwanda in April 2022. A further £120 million was paid by the United Kingdom during that month as a contribution to a fund intended to promote economic development in Rwanda. Further payments to the fund are conditional on Rwanda’s compliance with the terms of the MEDP.
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