The UK Supreme Court, in the case of AAA, HTN, RM, AS, SAA, ASM v the SSHD  EWCA Civ 745, reviewed the government’s policy to send certain asylum seekers to Rwanda. This UK Government policy, rooted in a bid to deter ‘illegal immigration’ and streamline asylum processes, faced legal challenges over its adherence, the final determination of which rested with the Supreme Court, which overturned this inhumane policy in today’s judgment.
The Legal Framework and Policy Details
The court examined the UK Government’s proposals to abdicate international responsibility in assessing the asylum claims for certain people, in certain circumstances. Instead, certain people will be sent to Rwanda to claim asylum there. Their claims will be decided by the Rwandan authorities, and if their claims are successful, they will be granted asylum in Rwanda and must remain in Rwanda. They will not be returned to the UK if their claims are successful.
Court Proceedings and Key Arguments
The court assessed the legality of this proposal. Given recent attacks by the mass media, the court reminded them that it is not concerned with the politics of the debate surrounding the policy, and their judgment ‘should not be regarded as supporting or opposing any political view of the issues.’
The idea of the UK Government is to focus on people who have traveled through safe countries before reaching the UK to claim asylum. If a person traveled through a safe country but did not claim asylum there, then their asylum claim in the UK will be designated as inadmissible (as if the claim was never made in the first place), and that person can be removed to the safe country they originally traveled through or to another safe country that agrees to accept them, such as Rwanda.
A country is considered a safe country if a person’s life and liberty are not threatened there on account of refugee grounds (race, religion, nationality, membership of a particular social group, or political opinion in that country), the safe country will not return them to the country they fled, they will not be removed to a country where their human rights will be breached, and they have an opportunity to claim asylum and request refugee status. Now that the UK is outside of Europe, it is almost impossible to remove someone to an EU country that they traveled through. So, it is crucial, if Rwanda or any similar country is to be used instead, that the UK Government is satisfied it meets these safeguards.
Supreme Court’s Analysis and Judgment
The UK Government created an agreement called a Memorandum of Understanding with the Rwanda Government, to ensure that the Rwandan Government meets the safeguards to be considered a safe third country.
The people subject to removal to Rwanda challenged the UK Government on the basis that (a) there were real risks that asylum claims would not be properly determined by the Rwandan authorities, and (b) that consequently there were real risks of being returned to the country that they sought protection from, and that so long as such risks existed, any removals would breach their human rights. The Court of Appeal agreed, and in losing at this Court, the UK Government took the case to the Supreme Court. In looking at this case, the Supreme Court warned the UK Government that the European Convention on Human Rights and the Human Rights Act were not prominent considerations and therefore attempting to withdraw the UK from these legislative protections in the future would not be the solution that they seek to attempt removals to Rwanda in the future.
The Supreme Court mainly looked at the risk of being removed to the country that they sought protection from or another 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. This includes whether there is access to adequate asylum procedures in any countries that they are sent to. The Supreme Court, in another warning to the UK Government, explained that these protections exist across various domestic and international legislation, as well as being a core principle of international law. In other words, it will be very difficult for the UK Government to withdraw from this web to achieve Rwanda removals in the future.
The Supreme Court looked at the general human rights situation in Rwanda; the adequacy of Rwanda’s asylum system, including its history of removals that may put individuals at risk; and Rwanda’s history of non-compliance in a similar agreement to the UK one that it has with Israel. The Court found that there were significant human rights concerns with Rwanda and serious questions with Rwanda’s compliance with international obligations and protections. The Court concluded that the Rwanda asylum process is inadequate and unsafe, that claims will not be processed correctly, and that individuals will be sent by the Rwandan Government to countries where they will be at risk of persecution or human rights breaches. This was backed up by Rwanda’s management of its processing of asylum seekers under the similar agreement with Israel. Any agreement Rwanda has with the UK Government to act better cannot circumvent or ignore its past and present actions, and these systemic issues cannot be quickly and easily rectified to make Rwanda a safe place for people to be sent to anytime soon.
Additionally, the Supreme Court looked at EU law that has been retained in UK law by the UK Government following Brexit, in particular, asylum procedures and minimum safeguards for processing asylum applications. In particular, that people cannot be removed to a country with which they have no prior connection, without substantive consideration of their asylum claim and without access to a right of appeal against a refusal of any asylum claim. And, in doing so, this will breach asylum procedures and minimum safeguards.
Implications and Conclusion
The Supreme Court’s decision holds far-reaching implications for the UK’s asylum policy and international refugee law. It underscores the delicate balance between a nation’s immigration control and its international human rights obligations. This case serves as a pivotal reference point in ongoing discussions about the rights of refugees and the responsibilities of nations under international law.
The Prime Minister Rishi Sunak’s response is:
“We have seen today’s judgment and will now consider next steps. This was not the outcome we wanted, but we have spent the last few months planning for all eventualities and we remain completely committed to stopping the boats. Crucially, the Supreme Court – like the Court of Appeal and the High Court before it – has confirmed that the principle of sending illegal migrants to a safe third country for processing is lawful. This confirms the Government’s clear view from the outset. Illegal migration destroys lives and costs British taxpayers millions of pounds a year. We need to end it and we will do whatever it takes to do so. Because when people know that if they come here illegally, they won’t get to stay then they will stop coming altogether, and we will stop the boats.”
However, as the Supreme Court ruled, it will be almost impossible to reignite the Rwanda policy because of the web of national and international law and international convention that protects asylum seekers and their rights. And even if the UK Government found an escape route, it will still face the realities of systemic and structural issues with Rwanda’s asylum processes and its inability to comply with international law.
The judgment is clear, succinct, and explains in plain English, that the Rwanda policy is unlawful and almost impossible to revive, certainly in the short term. It was an expensive, unrealistic, unlawful policy that breached the rights and protections of asylum seekers and threatened legal and international safeguards that all of us, not just asylum seekers, can rely upon if needed. It is unrealistic that the UK Government can overcome these hurdles before the next election and to ‘stop the boats’ anytime soon.
The UK receives fewer refugees than any other country in Europe or elsewhere. We should now concentrate on upholding our international responsibilities and obligations in offering protection to those who need it and preserve the rights and protections for all those who need it. In doing so, we can be set a high standard for other countries to follow. It is not only the economically sound thing to do, it is also the correct, humane, and lawful thing to do.
Call to Action and Further Reading
This case is a cornerstone in the evolving narrative of refugee and asylum law. For those interested in the intersection of international law, human rights, and governmental policy, further exploration is highly encouraged. Engaging with such complex issues is crucial in shaping informed and compassionate responses to global refugee crises.
This blog post aims to summarise the complexities of the Supreme Court’s judgment on the Rwanda policy, offering some insight into the legal assessment and broader humanitarian implications. For an in-depth understanding, readers are encouraged to delve into the full judgment and related resources on refugee law and international human rights.