In its judgment of 15 November 2023, the Supreme Court considered whether the Home Secretary’s Rwanda policy (“the policy”) was lawful. It unanimously dismissed the Home Secretary’s appeal, upholding the Court of Appeal judgment that the policy is unlawful.
Under the intended policy, certain individuals claiming asylum in the United Kingdom would be sent to Rwanda where their claims would be decided by the Rwandan authorities: if successful, they would be granted asylum in Rwanda. On 13 April 2022, the UK and Rwandan governments entered into a Migration and Economic Development Partnership (“MEDP”) which designated Rwanda as a safe third country for removal and made provision for the implementation of this arrangement.
Those seeking asylum are, however, protected against refoulement by virtue of the Human Rights Act 1998. In the Court of Appeal case, it was determined that unless and until the deficiencies in the Rwandan asylum system were corrected, any removal of asylum seekers to Rwanda under the MEDP would breach section 6 of the Human Rights Act 1998.
The appeal arose out of claims brought by individual asylum seekers who had travelled to the UK. Their claims for asylum were declared inadmissible by the Home Secretary, who indicated they should be deported to Rwanda under the Rwanda policy, where their asylum claims would be decided by those authorities.
The judgment focused on three issues:
1) Did the Divisional Court apply the correct test in considering the risk of refoulement?
2) If so, was the Court of Appeal entitled to interfere with its conclusion on that risk?
3) Was the Court of Appeal entitled to conclude that there were substantial grounds for believing that asylum seekers would face a real risk of ill treatment by reason of refoulement following their removal to Rwanda?
The correct legal test is whether there are “substantial grounds for believing that the
removal of asylum seekers to [the third country] would expose them to a real risk of ill treatment, as a consequence, of refoulement to another country. The assessment is one which must be made by the court” .
The Court of Appeal was entitled to interfere with the findings of the Divisional Court because the Divisional Court had erred in its treatment of the evidence. A state party cannot:
“…remove asylum seekers to a third country without determining their asylum status unless it has established that there are adequate procedures in place in that country to ensure that their asylum claims are properly determined and that they do not face a risk of refoulement to their country of origin.” 
The Court of Appeal was entitled to conclude that there were substantial grounds for believing that asylum seekers would be at real risk of ill treatment by reason of refoulement if they were removed to Rwanda .
As a result, the Supreme Court found that the removal of individuals to Rwanda under the policy would be unlawful because it would breach section 6 of the Human Rights Act 1998, as well as Article 3 of the ECHR, which prohibits torture and inhuman and degrading treatment. This is because the Court found there was a “real risk” of ill treatment should asylum seekers be removed to Rwanda.
Notably, the Supreme Court did reject the cross-appeal brought on the grounds that the Rwanda policy was incompatible with retained EU law.
It has been widely reported that the UK Government will now seek to implement emergency legislation to bypass the Supreme Court’s ruling in a bid to sustain its flagship immigration policy.
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