Supreme Court rules that Government’s Rwanda policy is unlawful
In a landmark and unanimous judgment, the Supreme Court has upheld the earlier Court of Appeal ruling in AAA v Secretary of State for the Home Department [2023] EWCA Civ 745 that the Government’s policy of sending asylum-seekers to Rwanda is unlawful.
The Supreme Court held that the majority of the Court of Appeal was entitled to conclude that there are substantial grounds for believing that asylum seekers removed from the UK to Rwanda would be exposed to a real risk of ill treatment. There is a real risk that the asylum claims of those transferred would not be determined properly in Rwanda’s asylum system and that refugees (those with well-founded fears of persecution) would be refouled (expelled) from Rwanda directly or indirectly, to their countries of origin.
The Supreme Court also reviewed the evidence for itself and, again unanimously, agreed with the conclusions of the majority of the Court of Appeal.
The Supreme Court was emphatic that its judgment is not solely the result of the rights protected by the European Convention of Human Rights (‘ECHR’). Its judgment is concerned with the prohibition of refoulement. That principle prohibits the expulsion, whether directly or indirectly, of a refugee to a country of persecution. As the Supreme Court explained, the prohibition of refoulement is enshrined in the Refugee Convention 1951 but also given effect by other international treaties to which the United Kingdom is a party, including the United Nations Convention against Torture 1984 and the United Nations International Covenant on Civil and Political Rights 1966. The prohibition of refoulement may also, as the Supreme Court observed, form part of customary international law so that it binds all states in international law regardless of whether they are party to any treaties which give it effect.
The Supreme Court moreover noted that the expulsion of an individual in breach of the prohibition of refoulement would be contrary to various provisions of the Immigration Acts (primary legislation) as well as a violation of the Human Rights Act 1998.
The evidence from the United Nations High Commissioner for Refugees (‘UNHCR’) concerning defects in Rwanda’s asylum system had ‘particular significance’ in this case owing to UNHCR’s status, role, expertise and experience, and specifically its undoubted expertise in the Rwandan asylum system.
The Supreme Court concluded that the structural changes and capacity-building needed to eliminate the real risks for asylum seekers in Rwanda may be delivered in future, but were not shown to be in place at the time when the lawfulness of the policy had to be considered.
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Numerous members of Doughty Street Chambers have appeared in the case in the Supreme Court:
Laura Dubinsky KC and Agata Patyna appeared for UNHCR, with Angus McCullough KC, David Chirico, Jennifer MacLeod, George Molyneaux and Joshua Pemberton, instructed by a team from Baker McKenzie led by Joanna Ludlam. All UNHCR’s counsel and solicitors acted pro bono.
Alasdair Mackenzie and Rosa Polaschek appeared for RM (an individual appellant), with David Sellwood and led by Phillippa Kaufmann KC, instructed by Daniel Merriman and Tim Davies at Wilsons LLP.
Leonie Hirst and Sarah Dobbie appeared for ASM (an individual appellant), with Angelina Nicolaou and led by Richard Drabble KC, instructed by Jed Pennington at Wilsons LLP.
Numerous other members have also appeared in challenges to the policy in the courts below.
Michelle Knorr and Sarah Dobbie appeared for Asylum Aid in the Court of Appeal and Divisional Court, 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 in the Court of Appeal), instructed by Allen & Overy LLP.
Access the judgment here.
