Immigration and Asylum News: Court of Appeal Rules That Rwanda is Not a Safe Country
In a majority decision, the court of appeal has recently ruled that Rwanda is not a safe third country for asylum seekers. The government has said it intends to appeal the decision to the supreme court.
In this blog, our immigration solicitors examine the court of appeal judgment in the widely publicised case of AAA and others v Secretary of State for the Home Department.
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The decision in AAA and others v Secretary of State for the Home Department [2023] EWCA Civ 745
The court of appeal has allowed an appeal against the UK government‘s planned ‘Rwanda policy’ involving the offshoring of asylum claimants to Rwanda. The court of appeal decision centres on whether Rwanda is a safe country for asylum seekers to have their asylum claims processed. The court of appeal, in a 2 to 1 majority decision, found in favour of the appellants on this point and decided that Rwanda is not a safe third country.
It perhaps is not surprising that there was no consensus among the judges sitting in the court of appeal as the Rwanda policy has divided many and produced a lot of articles in the media, for and against.
The dissenting judge who found himself in the minority (Lord Burnett of Maldon) said that the assurances given by the Rwandan government were sufficient for him to find that Rwanda was a safe third country for asylum seekers. Many politicians and the general public would agree, perhaps persuaded by the quality of the reported hotel accommodation set aside for asylum seekers sent from the UK to Rwanda. However, the court case was not about the physical accommodation in Rwanda but whether the UK government policy is compliant with Article 3 of the European Convention on Human Rights.
The two judges in the majority (Sir Geoffrey Vos and Lord Justice Underhill) concluded that if the UK were to send asylum seekers claiming asylum in the UK to Rwanda the UK would be in breach of its obligations. That’s because they thought there are substantial grounds for believing there is a real risk that asylum seekers sent to Rwanda could be returned to their home countries and face persecution.
To challenge the majority court of appeal decision the UK government needs leave to appeal to the supreme court. There will then be a further wait for a supreme court date to rule on the Rwanda policy.
The decision in AAA and offshoring of asylum seekers
Offshoring is the term used for the plans to send asylum seekers who have arrived in the UK by illegal means to Rwanda for their asylum claim to be processed. The government believes the deterrent effect will stop (or at least reduce) the number of small boats crossing the English Channel and the lucrative trade in misery by the people smugglers.
There is a lot of debate (for and against) about whether offshoring will prove to be a deterrent and the cost of sending an asylum seeker to a third country for processing rather than investing the resources to speed up the asylum claim decision-making process in the UK.
What is interesting about the decision in AAA is that the court of appeal did not say that offshoring to a third county would breach the UK’s legal obligations to asylum seekers. The court of appeal ruled that Article 31 of the Refugee Convention does not in principle prevent the UK from removing asylum-seekers to a safe third country.
The majority decision of the court of appeal says that Rwanda is not deemed a safe third country (or at least not now). Immigration solicitors and others are running through a list of countries in their minds to work out which third countries could be deemed ‘safe’. At present, you can anticipate potential arguments over France if the UK government were to strike a similar deal with France to that negotiated with the Rwandan government, even though the human rights records of the two countries are wholly different.
The AAA appeal
The appellants in the case of AAA were asylum seekers from Albania, Syria, Iraq, Iran, Vietnam, and Sudan as well as an appeal by an asylum charity. All the individual asylum seekers had arrived in the UK on small boats so were said to have entered the UK by illegal means as the asylum seekers had not waited in refugee camps in the hope of selection to come to the UK.
Each of the individual appellants had been told that they would be sent to Rwanda for their asylum claim to be processed there and all ten objected. Their cases first came before the high court.
In essence, the asylum seekers said that:
- There are substantial grounds for believing that there is a real risk that asylum seekers sent to Rwanda will be removed to their home country even if they have a valid asylum claim and
- Sending asylum seekers to Rwanda is in breach of Article 3 of the European Convention on Human Rights as Rwanda is not a safe third country
The high court judge ruled there was procedural unfairness in the handling of the ten claimant’s cases but the high court did not rule that the Rwanda policy was in breach of Article 3 or rule that Rwanda was not a safe third country. That led to the appeal to the court of appeal on the general issue of whether Rwanda was a safe country to send asylum seekers, assuming that the future procedures to select and send asylum seekers were carried out fairly in individual cases.
The appeal was allowed concerning whether Rwanda is a safe third country. The majority decision concluded that Rwanda was not a safe third country because of its historical record of treatment of asylum claimants rather than because of any inadequacy in the assurances provided in good faith by the Rwandan government as part of its agreement with the UK.
The majority decision of the court of appeal in effect said that the good faith assurances were not backed up by evidence of change in the way Rwanda would deal with asylum seekers sent to Rwanda from the UK. Therefore, if the UK sent asylum seekers to Rwanda it would amount to a breach of Article 3 of the European Convention on Human Rights. The UK government must comply with Article 3 by virtue of the Human Rights Act 1998.
The dissenting judge in the court of appeal said in essence that the detailed agreement between the UK and Rwanda, the planned monitoring of compliance with the agreement, and the commitment to make the offshoring work for both the UK and Rwanda were sufficient to hold that Rwanda is a safe third country.
The effect of the judgment in AAA is that no removals to Rwanda will take place until the supreme court rules on the point in a further appeal or the law is changed.
UK Online and London-Based Immigration Solicitors and Asylum Lawyers
For immigration and asylum law advice call London-based OTS Solicitors on 0203 959 9123 or contact us online.
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