Background
As a signatory to the Refugee Convention, the UK must consider asylum claims made within its jurisdiction. However, the difficulty of accessing lawful routes has led many to arrive irregularly with the assistance of smugglers. In April 2022, the government signed an agreement with Rwanda to relocate asylum seekers whose claims would otherwise be processed in the UK.
The first scheduled flight included seven migrants, although forty more had initially been listed. Lawyers acting for the migrants applied to the High Court to stop the flight, arguing that removal breached Article 3 ECHR. The High Court refused. As the plane prepared for take‑off, the European Court of Human Rights issued an interim measure preventing departure, stating that the policy required full evaluation before implementation.
The Asylum Seekers
The Supreme Court hearings concern ten asylum seekers with varied backgrounds and reasons for fleeing their home countries. Although their circumstances differ, the Court is treating them collectively for the appeal.
Three men fled Syria to avoid conscription. One man left Turkey five years ago to join family in the UK. An Iranian applicant claimed police shot at him during a political uprising. An Iraqi man fled after discovering his wife with a senior intelligence official’s bodyguard. A Vietnamese applicant left due to death threats linked to debt, travelled to Ukraine, became caught in conflict and later arrived in the UK. Another Iranian applicant had previously been granted asylum in Greece, later reapplied in Germany and eventually travelled to the UK.
The High Court found that none of the men had been given a proper opportunity to present their cases before being listed for removal to Rwanda.
Although the High Court ruled in December 2022 that the Rwanda plan was lawful, the Home Secretary had no individuals eligible for removal then. The case proceeded to the Court of Appeal, where the government faced significant difficulty.
Court of Appeal: Lack of Safety in Rwanda
In June 2023, the Court of Appeal held by a majority that Rwanda’s asylum system was not sufficiently safe. The judges found that systemic deficiencies created a real risk that genuine refugees could be returned to their home countries, where they might face persecution or torture. This would breach Article 3 ECHR.
Sir Geoffrey Vos and Lord Justice Underhill delivered separate judgments but agreed that Rwanda’s authorities could not reliably distinguish genuine refugees from non‑genuine applicants. For example, applicants from Afghanistan and Syria currently face a 100 per cent rejection rate.
The Court applied the test in Soering v United Kingdom, which prohibits removal where substantial grounds exist to believe an individual faces a real risk of Article 3 mistreatment. The majority concluded that Rwanda was not a safe country for determining asylum claims. They also noted that while the UK is not obliged to decide claims itself, any third country must be demonstrably safe.
The then‑Lord Chief Justice dissented, stating that the risk was not plausible.
What Happens Next
The Supreme Court must determine the correct legal standard for assessing Rwanda’s asylum system and the risk of torture or ill‑treatment. If the Supreme Court agrees with the Court of Appeal, the Rwanda plan in its current form will be unlawful. This may affect future agreements with other countries.
If the government succeeds, ministers theoretically need only twelve days’ notice to schedule a flight. In practice, delays are likely. Individuals facing removal may apply to the European Court of Human Rights for interim measures. Strasbourg intervened previously because UK courts had insufficient time to review the policy. Any future intervention would require showing that, after sixteen months of litigation, UK courts still failed to consider all human rights implications.
The Home Secretary could attempt to rely on new powers under the Illegal Migration Act to disregard interim rulings from Strasbourg. However, using this power would likely trigger further legal challenges.
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