Supreme Court Rules UK Policy Sending Asylum Seekers to Rwanda Unlawful

Citation: [2023] UKSC 42
Judgment on

Introduction

In R (on the application of AAA (Syria) and others) v Secretary of State for the Home Department, the UK Supreme Court addressed the legality of the Secretary of State’s policy regarding the removal of certain asylum seekers to Rwanda to have their claims processed there. The judgment scrutinizes the policy against the principles of non-refoulement under international and domestic law, as well as retained EU law post-Brexit.

Key Facts

The case involves the UK’s policy to send asylum seekers to Rwanda under the Migration and Economic Development Partnership (MEDP) — a policy underpinned by a Memorandum of Understanding and assurances from the Rwandan government regarding the treatment and asylum process asylum seekers would undergo in Rwanda. The primary contention revolved around whether there were substantial grounds for believing that individuals removed to Rwanda would be at real risk of refoulement (being returned to a country where they may face danger) in contravention of both international and domestic UK law, as well as relevant retained EU law.

The legal principles at stake in this case pertain to the principle of non-refoulement, which is fundamental to refugee law. The principle, enshrined in international treaties including the United Nations 1951 Refugee Convention, the UN Convention against Torture, and others, prohibits the return of refugees to a territory where their life or freedom would be threatened. This principle has attained a significant status, often regarded as part of customary international law, and overrides conflicting legislative enactments.

Domestically, several UK legislations embed the non-refoulement principle, such as the Immigration Act 1971, the Asylum and Immigration Appeals Act 1993, and the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK law, specifically Article 3 prohibiting torture, and inhuman or degrading treatment or punishment.

The European Union’s Procedures Directive, which the UK had enacted into its domestic legislation, mandates that asylum claims cannot be considered inadmissible unless there is a connection between the asylum seeker and the third country that is deemed safe, raising questions about retained EU law after Brexit.

Outcomes

The Supreme Court, in agreement with the Court of Appeal, concluded that there were substantial grounds for believing that individuals removed to Rwanda would be at risk of refoulement, thereby rendering the policy unlawful. This conclusion based on evidence including Rwanda’s past non-compliance with similar assurances, its history of refoulement, deficiencies in its asylum procedures, and a possible disconnect between the Rwandan authorities’ understanding of their international obligations and the required actions to uphold them.

In a separate but related matter, the court refuted the argument that retained EU law — specifically Articles 25 and 27 of the Procedures Directive — continues to have a legal effect post-Brexit, according to the European Union (Withdrawal) Act 2018 and the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. The Court of Appeal had also upheld that these provisions no longer formed part of UK domestic law, dismissing the cross-appeal by ASM on the EU law retention issue.

Conclusion

The Supreme Court’s decision underlines the UK’s commitment to upholding international legal principles concerning the protection of refugees, specifically non-refoulement. This case exemplifies the UK judiciary’s continued role in interpreting and enforcing both international and domestic legal standards concerning refugee and human rights protections. It also highlights the legal consequences of Brexit on the application of EU law within the UK, affirming the cessation of the application of the EU Procedures Directive as retained EU law in terms of UK domestic asylum policies.

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