Court of Appeal rules that Government’s Rwanda policy is unlawful

The Court of Appeal has ruled in AAA v Secretary of State for the Home Department [2023] EWCA Civ 745 that the Government’s policy of removing asylum-seekers whose claims are deemed “inadmissible” to Rwanda is unlawful. That policy had been held to be lawful in the Divisional Court. The challenge arose from a number of linked judicial review claims challenging Home Office decisions to remove asylum seekers to Rwanda and the legality of the overall removal policy.

The Court of Appeal, by majority, held that Rwanda was not a “safe third country” because there was a real risk that any person sent to Rwanda will be removed to their home country without their claims being properly decided and will thereby face treatment that would breach article 3 of the European Convention on Human Rights. The Master of the Rolls and Lord Justice Underhill held that the deficiencies in the asylum system in Rwanda created this risk because the system itself was an insufficient safeguard against refoulement. Those risks were demonstrated by the evidence of the UN High Commissioner for Refugees and the factual realities of the present asylum system in Rwanda, notwithstanding the good faith assurances of the Government of Rwanda made to the United Kingdom Government. There was no evidence that the promised changes had reliably been acted on so as to change the structural concerns.

With respect to the fairness of the procedure for deciding whether to send people to Rwanda, the Court accepted that seven days would not be enough time in the majority of cases for detained asylum seekers to make representations on why they should not be sent to Rwanda. It also accepted that the High Court was wrong to conclude that people did not need to be given enough time to make representations on why Rwanda was generally unsafe and wrong to say they did not need to have access to lawyers. But the Court found the policy was not inherently unfair.

The Court rejected a number of other grounds of appeal, including on the effect of the Refugee Convention; whether the Procedures Directive remained retained EU law and its effect on the Rwanda policy.

Numerous members of Doughty Street Chambers appeared in the Divisional Court and/or the Court of Appeal:

Laura Dubinsky KC and Agata Patyna appeared for the United Nations High Commissioner for Refugees (intervening), with Angus McCullough KC, David Chirico, Jennifer MacLeod, Aarushi Sahore and Joshua Pemberton.

Alasdair Mackenzie and Rosa Polaschek appeared for RM (an individual appellant), with David Sellwood and led by Richard Drabble KC, instructed by Daniel Merriman and Tim Davies at Wilsons LLP.

Leonie Hirst appeared for ASM (an individual appellant), with Angelina Nicolaou and led by Richard Drabble KC, instructed by Jed Pennington at Wilsons LLP.

Michelle Knorr and Sarah Dobbie appeared for Asylum Aid, led by Charlotte Kilroy KC, instructed by Leigh Day.

Adam Straw KC, Catherine Meredith, Zoe Harper and Michael Spencer for the United Nations Special Rapporteur on trafficking in persons especially women and children, Professor Siobhán Mullally (intervening with written submissions), instructed by Allen & Overy LLP.

Access the judgment here