On 15 November 2023, the UK Supreme Court unanimously found the Secretary of State’s Rwanda Policy to be unlawful, upholding the Court of Appeal’s judgement. The Supreme Court decided that Rwanda was not a safe third-country for asylum seekers, and that there is a real risk that the principle of “non-refoulement” will not be respected there. Non-refoulement means that asylum seekers should 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.

The Prime Minister announced later that day that the government is devising a new treaty with Rwanda to make changes to the policy in light of the Supreme Court judgement. He announced plans to pass emergency legislation to give statutory effect to the plan preventing further judicial challenges and confirmed the government’s willingness to revisit international treaties such as the ECHR to deliver its Rwanda plan.

The legal basis of this policy, at the relevant time of the asylum claims, was set out in the Immigration Rules which gave the Secretary of State powers to remove certain asylum seekers to a safe third country where their claims would be heard and where they would remain following a successful claim. The Rules set out the criteria for a safe third country, importantly, requiring that the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention. On 13 April 2022, the UK and Rwandan governments recorded a Memorandum of Understanding entering into a Migration and Economic Development Partnership (MEDP) declaring Rwanda to be a safe third country.

The policy was judicially challenged and the High Court found that the Secretary of State’s policy was lawful (while quashing the individual removal decisions preventing the deportation flight from going ahead). The judgement was appealed in the Court of Appeal, which by a majority of 2:1 overturned the High Court judgement and held the policy to be unlawful on the basis of Rwanda not being a safe third country. The Secretary of State appealed this decision to the Supreme Court.

R v SSHD – the Supreme Court’s judgement

Issues The Supreme Court had to decide on the following issues in this appeal:

  1. Whether the Court of Appeal was correct to decide that the High Court applied the incorrect legal test;
  2. Whether the Court of Appeal was entitled to interfere with the High Court’s conclusion; and
  3. If yes to 2, whether it was wrong to conclude that on the basis of the evidence in the High Court, there were substantial grounds to conclude that asylum seekers would face a real risk of refoulement following a removal to Rwanda.

Held At the outset, the Supreme Court emphasised that it is not interested is any aspect of the political debate surrounding this policy and focussed on the legal questions stated above.

The Court emphasised the UK’s obligation to respect the principle of non-refoulement in asylum cases. Leading up to this judgement, there had been talk about the UK’s commitments under the ECHR possibly preventing the Rwanda policy from going ahead. To mitigate that, the Court emphasised that asylum seekers are protected against refoulement not only by the Human Rights Act (giving effect to ECHR in the UK) but by several international treaties ratified by the UK such as the Refugee Convention 1951 and domestic legislation including section 2 of the Asylum and Immigration Appeals Act 1993.

The Supreme Court held that the correct test, derived from the ECtHR judgment in Soering vs UK, required the Court to undertake a factual analysis and decide whether there are substantial grounds to believe that the removal of asylum seekers to Rwanda would expose them to a real risk of ill-treatment as a consequence of refoulement to another country. The High Court had dealt with this issue on the basis that the Court’s role was to decide if the Secretary of State was entitled to form the view that there was no such risk instead of deciding for itself, hence, applying the incorrect test.

The United Nations Divisional Commissioner for Refugees (UNHCR) intervened in this appeal and gave lengthy evidence on the deficiencies in the Rwandan asylum system and general human rights situation in Rwanda. The UNHCR emphasised (i) the concerns with the asylum process in Rwanda, (ii) the Divisional rate of rejections of asylum claims, (iii) Rwanda’s practice of refoulement and (iv) the inability of the Rwandan government to understand the requirements of the Refugee Convention.

The High Court gave little weight to UNHCR’s evidence. However, the Supreme Court held that UNHCR’s evidence should have been given significant weight in the factual analysis given its lengthy and on the ground experience of working with the Rwandan asylum system. As such, the Supreme Court upheld the Court of Appeal’s findings that there were substantial grounds for believing that asylum seekers would be at a real risk of refoulement following their removal to Rwanda. The Court did not rule out these changes could be delivered in the future but the current state of the Rwandan asylum system makes it an unsafe third country. Therefore, the government’s Rwanda policy was held unlawful.

Government’s response

The government was disappointed in the decision but emphasised that the Courts have not said the principle of removing asylum seekers to a safe third country is illegal. It announced that it is in the process of devising a new treaty with Rwanda which would be finalised soon in light of the points raised in the Supreme Court’s judgement. Nick Rollason, our head of Immigration, was quoted in the FT that the government’s hope the new treaty will address the concerns raised by the Court is “pie in the sky”.

The government further announced plans to introduce “emergency legislation” through parliament to declare Rwanda as a safe third country to return asylum seekers - contrary to the determination of the Supreme Court.

The government has previously taken steps to undermine judicial oversight in its plans to “stop the boats”. A recent example is the ouster clauses in the recent Illegal Migration Act 2023 discussed in our previous blog. However, the emergency legislation would be one step further as it would reverse a finding of fact by the highest Court of the land after careful review of extensive evidence in the case. This raises questions about fundamental public law principles such as separation of powers and the rule of law. Lord Sumption, a former Supreme Court justice, criticised these recent plans stating:

I have never heard of them [the government] trying to change the facts, by law. For as long as black isn’t white, the business of passing acts of parliament to say that it is profoundly discreditable.”

The prime minister further vowed that he would ensure that no “foreign court” (European Court of Human Rights) will be allowed to block further removals to Rwanda, doubling on its anti-ECHR rhetoric discussed in our previous blog.

The Rwanda plan has cost the government at least £140m to date. However, no person has been removed to Rwanda and no removal is in near sight. The government’s desperation can be seen by its recent announcement but it could still face several legal challenges, domestically and internationally, to deliver its plans. There is no timeline currently for the emergency legislation but the government hopes for the first flight to Rwanda to take off in Spring 2024. If the ECtHR does challenge the government’s plans, The Times reports that short of completely ignoring it, the government may proceed in earnest with flights to Rwanda pending any full hearing – likely to be after the next general election.