Appeal to the Supreme Court
Following the Court of Appeal’s judgement, the UK Government have already confirmed that they intend to appeal the decision to the UK Supreme Court.
The main disagreements between the Court of Appeal majority (the Master of the Rolls and the Vice President), on the one hand, and the Divisional Court and the Lord Chief Justice, on the other, include the weight to be given to the diplomatic assurances made by the Rwandan government in the Memorandum of Understanding (MoU) and Notes Verbales (NV); the relevance of informal and informal reporting mechanisms on the implementation of the arrangement; and lastly the likelihood that individuals who apply for refuge in Rwanda will be turned away and sent to nations where they may face persecution.
The UK Government believes that the court should give significant weight to the expert institution’s opinion, that the government of Rwanda can be expected to abide by the good faith guarantees it has made in the MoU and NV regarding how asylum claims will be handled and how individuals removed under the arrangement will be treated.
Further, The Lord Chief Justice also gave both formal and informal monitoring arrangements a lot of consideration. These include a Joint Committee made up of members chosen by both countries, the UNHCR’s presence in Rwanda, and the RIs’ access to lawyers and NGOs in the UK.
He further noted that the likelihood that individuals who apply for refuge in Rwanda will be turned away and sent to nations where they may face persecution to be very minimal. According to the agreement, Rwanda must decide whether to provide leave to remain on other humanitarian grounds or on any other basis if asylum is denied. It specifies that Rwanda will regularise that person’s immigration status if there is no chance of expulsion from Rwanda for any reason.
Implementation of the Rwanda Polity
The Vice President and the Master of the Rolls are the two judges that make up the majority, and both of their judgements are incredibly thorough and well-supported. An appellate court should be reluctant to challenge their conclusions regarding the evidence and the facts, with the exception of the above-mentioned matters of principle. They might have their rulings upheld by the Supreme Court. However, should this be the case, it may be difficult to see how some of the structural issues mentioned may be rectified. For example, Rwanda is a one-party state, there is evidence that it commits human rights violations against its opponents, and there is evidence (that was presented to the court) that it has arbitrarily killed refugees in the past.
If the Supreme Court rule in favour of the UK Government, the issue of whether it would be consistent with article 3 (in particular, Soering) to send any individual asylum seeker to face these challenges in Rwanda itself will remain.
It is believed that if the UK Government loses in the Supreme Court, it would be unable to take its case to Strasbourg. However, should they win, individual asylum seekers will have the option of presenting their case in Strasbourg.
The Illegal Migration Bill
None of the justices disputed with the basic concept of Rwanda’s policy, which is that it is consistent with the Refugee Convention and the ECHR for asylum seekers to be transported to a safe third country to have their asylum applications decided there.
This principle underpins the Illegal Migration Bill that is currently before Parliament. Rwanda is designated as a safe country in Schedule 1 of the bill, but whether it is safe for any one individual must be determined on an individual basis. Following the judgement, it should now be removed and only reinstated if the Supreme Court find it to be safe for asylum seekers.
Asylum Aid
According to the evidence presented in court, there was an unpublished policy or practise of exercising flexibility in the timeline for responding to notices of intent, and Underhill LJ ruled that there had to be a stated flexibility policy. Further, in terms of retained EU law, the Court of Appeal’s ruling that the Procedures Directive is not retained EU law contradicts the Supreme Court’s decision in G v G. The Court of Appeal ruled that the wording in the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (ISSCA) was broad. However, they found that the key question was whether the UK Government deliberately intended those rights derived from EU asylum law be excluded from the scope of ISSCA. Given that the Court of Appeal’s ruling contradicts G v G, the Supreme Court will most likely review this matter.
Interim relief and Rule 39
The UK Government maintain their position that Strasbourg’s Rule 39 indication, which stopped the June 2022 flight, was arbitrary or abnormal, and that this justifies efforts to reform the court’s procedures and legislation that would empower ministers to disregard Rule 39 indications.
The UK courts decision on interim relief was deemed incorrect. First, the decision was based on the fact that the time between removal and case determination was short which has proven to be wholly unrealistic. Second, the Administrative Court ruled that the individual judgements that led to removal were illegal and dismissed them. If the High Court’s interim relief judgement had remained and removals had proceeded, all those people would have had to be brought back. Lastly, the Court of Appeal decided categorically that sending any asylum seeker to Rwanda would be a violation of Article 3 of the ECHR.
In conclusion, the Court of Appeal’s decision upholds the rule of law and human rights. Despite this, the UK Government may be able to successfully appeal to the Supreme Court.
Hanna Barzinji 21/07/2023