Upcoming Rwanda Appeal
In July 2023, the UK government was granted permission to appeal the Rwanda judgement. The appeals have been expedited and scheduled to be heard by the Supreme Court judges on 9th – 11th of October 2023. It is almost certain that the Supreme Court will reserve its judgement and announce it together with its justification later considering that the Court of Appeal took two months and the Divisional Court almost three months to render their judgement.
The Court of Appeal allowed the Home Secretary permission to appeal against the judgment that the removal of asylum seekers to Rwanda breaches article 3 of the European Convention on Human Rights (ECHR) due to the risk of refoulment.
The Home Secretary has three grounds of appeal. It is believed that the correct legal test was used by the Divisional Court when determining that there were no substantial grounds to think that sending asylum seekers back to Rwanda would put them at danger of mistreatment in violation of article 3 ECHR. The Home Secretary argues that the Court of Appeal was wrong to interfere with the court’s findings and to conclude that there were in fact substantial grounds for believing that the removal of asylum seekers would put them in danger of mistreatment in violation of article 3 ECHR. This point stands as an umbrella for a variety of topics, such as the importance of formal and informal monitoring of the agreement’s implementation, incentives for the Rwandan government and judiciary to act in accordance with the terms of the agreement regarding how asylum claims will be handled, and a claim that Rwanda has a low practical likelihood of sending asylum seekers back to their countries of origin because it does not have a returns agreement with any other country. Finally, the Home Secretary’s last ground of appeal is that the Court of Appeal failed to give weight to the government’s judgement of the likelihood of the Rwandan government abiding by its assurances. Should their judgement be accepted, Rwanda would adhere to the requirements of the Memorandum of Understanding and Notes Verbales regarding how asylum claims will be overseen and the living conditions they would experience in Rwanda.
As such, the Supreme Court has granted claimants permission to cross appeal on the point that there are substantial grounds for believing that asylum seekers would face a risk of mistreatment for reasons other than the risk of refoulment. It was argued that they would suffer similar risks in the future due to past evidence that refugees had previously been mistreated by the Rwandan government. Vos MR, one of the Court of Appeal judges, determined that such a danger existed whilst the Division Court ruled that the risk was hypothetical and not sufficient to qualify as a “real risk”. In addition, it is argued that the Home Secretary failed to uphold her duty of a thorough investigation of the Rwandan refugee status determination system.
In turn, the Court of Appeal granted one of the claimants permission to appeal against its unanimous decision to uphold the Divisional Court’s ruling, that the Procedures Directive is not retained EU law because of the effect of section 1 and paragraph 6 of Schedule 1 of the Immigration and Social Security Coordination (EU Withdrawal) Act 2020. It is believed that the agreement violates the Procedures Directive if it is still a part of UK legislation because there is no requirement that individuals removed as refugees under the agreement have any link to Rwanda.
As of now, there continues to be uncertainty regarding the future of the asylum seekers and the asylum system in the UK.
By: Hanna Barzinji