Decisions

European Court of Human Rights April 4, 2024 Third country: Ukraine. From December 2016 to January 2017 border guards at Medyka and another crossing on the Polish-Ukrainian border turned each of them away to Ukraine at least four times, and one of them fourteen times (paragraph 5); on 1 February 2017 all four were sent back again (paragraphs 9 and 10). The Court noted that Ukraine was “a Contracting Party to the Convention” (paragraph 47).

Disposition Unanimously: the applications joined and declared admissible; “a violation of the procedural limb of Article 3 of the Convention”; a violation of Article 4 of Protocol No. 4; a violation of Article 13 taken with Article 3 and Article 4 of Protocol No. 4; and no need to examine the complaint under Article 8 in application no. 54255/17. EUR 13,000 to each applicant for non-pecuniary damage; the remainder of the claims dismissed. The judgment became final on 4 July 2024.

The four men said they asked each time for international protection “because they were at risk of political persecution in Tajikistan” (paragraph 5). On 1 February 2017 all four presented themselves at Medyka and asked to apply; a lawyer from the Helsinki Foundation, who had written authority from two of them, asked to attend their interviews and was refused (paragraph 9). The border guards recorded economic and personal reasons, and all four were sent back to Ukraine (paragraph 10). The Polish administrative courts later found that the border guards had not properly established whether the men wished to apply. The Supreme Administrative Court held on 20 September 2018 that “the official notes could not have been considered sufficient evidence of the applicants’ intentions as expressed at the border” (paragraphs 17, 19 and 20). The European Court observed that those findings “did not result in any change of the applicants’ situation, given that the appeal to those courts did not have automatic suspensive effect” (paragraph 49). That Ukraine was a party to the Convention “did not exempt the Polish authorities from conducting a thorough examination of the applicants’ situation” (paragraph 48). Poland “should either have allowed the applicants to remain in Polish territory pending the examination of their asylum application or, before sending them back to Ukraine, they should have examined whether that State was safe for the applicants and whether they would have access to an adequate asylum procedure there” (paragraph 48). Sending them back without that examination “constituted a violation of the procedural limb of that Article” (paragraph 50).

Access to asylum Pushbacks Safe third country Collective expulsion Effective remedy Article 3 ECHR Access to a lawyer

Caution The violation is of the procedural limb of Article 3: Poland did not examine whether Ukraine was safe for the applicants before sending them there. The Court did not find that Ukraine was unsafe for them or that they were ill-treated there. The judgment lists one applicant as living in Warsaw, two in Austria and one in Ukraine (appended table).

Supreme Court of the United Kingdom November 15, 2023 [2023] UKSC 42 Third country: Rwanda, under the Migration and Economic Development Partnership: a memorandum of understanding between the two governments “entered into on 13 April 2022”, and two notes verbales (paragraph 8). Rwanda was to decide their asylum claims and grant asylum in Rwanda to those who succeeded. The case summary records: “None of the claimants has any connection to Rwanda.”

Disposition “For the reasons we have explained in our discussion of Issues 2 and 3, at paras 42-105 above, we conclude that the Court of Appeal was correct to reverse the decision of the Divisional Court, and was entitled to find that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement. It was accordingly correct to hold that the Secretary of State’s policy is unlawful. The Secretary of State’s appeal is therefore dismissed. For the reasons explained in our discussion of Issue 4, at paras 107-148 above, the cross-appeal by ASM is also dismissed.” (paragraph 149)

The policy was that certain people claiming asylum in the United Kingdom “should not have their claims considered here, but should instead be sent to Rwanda in order to claim asylum there” (paragraph 1). The claimants’ claims were declared inadmissible between May and July 2022 on the basis that Rwanda was a safe third country (paragraph 13). The Divisional Court held the policy lawful; the Court of Appeal, by a majority, held it unlawful; the Home Secretary appealed (paragraphs 14 to 16). The Supreme Court held that the court must assess the risk itself: “As authorities such as Othman and Zabolotnyi make clear, the court has to make its own assessment of whether there are substantial grounds for believing that there is a real risk of refoulement. It is not required to accept the government’s evaluation of assurances unless there is compelling evidence to the contrary” (paragraph 52). The evidence it relied on concerned “the general human rights situation in Rwanda; the adequacy of Rwanda’s asylum system, including its history of refoulement; and Rwanda’s non-compliance with assurances given under the arrangement which it entered into with Israel” (paragraph 74). Its conclusion: “As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all.” … “The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings” (paragraph 105). On ASM’s cross-appeal, the court held that articles 25 and 27 of the Procedures Directive, under which removal to a safe third country requires a connection with it, no longer have effect in United Kingdom law (paragraphs 16 and 148).

Third-country removal Safe third country Chain refoulement Diplomatic assurances Article 3 ECHR Evidence of destination conditions Judicial review

Caution The court decided on the evidence about Rwanda when the decisions were made in 2022, and said that the changes needed “may be delivered in the future”. Parliament then passed the Safety of Rwanda (Asylum and Immigration) Act 2024, which provided: “Every decision-maker must conclusively treat the Republic of Rwanda as a safe country.” The Act was repealed with effect from 2 December 2025. The Coalition’s page on the United Kingdom quotes the Act and sets out what followed.

Court of Appeal of England and Wales June 29, 2023 [2023] EWCA Civ 745 Third country: Rwanda, under the Migration and Economic Development Partnership, which “comprises a Memorandum of Understanding of 13 April 2022 (MoU) and three Notes Verbales” (paragraph 3). The Home Secretary declared the claims of “some 47 asylum seekers” inadmissible in May and June 2022, intending to remove them to Rwanda by charter flight on 14 June 2022 (paragraph 17).

Disposition “I would, as I have said, allow the appeal on the Soering issue. The Lord Chief Justice, for the reasons he gives, would dismiss the appeal. Since Underhill LJ agrees with me on the Soering issue, the appeal will be allowed.” (Sir Geoffrey Vos MR, paragraph 119.) All three judges held that the other grounds of appeal failed (paragraphs 14 and 527), and Asylum Aid’s appeal on the fairness of the decision-making process was dismissed (paragraph 455).

The Divisional Court had rejected all the generic challenges to the policy (paragraph 1). The Master of the Rolls held that it “did not universally apply the correct test to the issues relating to the safety of Rwanda”, that the Court of Appeal had to consider those issues afresh, and that “special regard should be paid by the court to the views of the UNHCR on the grounds of its special expertise and the fact that the subject matter is within its remit” (paragraph 13). He concluded that “there were substantial grounds for thinking that there were real risks that the asylum seekers that the SSHD decided to send to Rwanda in May 2022 would be refouled or subject to breaches of article 3, or that their asylum claims would not be properly or fairly determined in Rwanda” (paragraph 13). Underhill LJ agreed that the evidence “established that there were substantial grounds to believe that asylum-seekers relocated to Rwanda under the MEDP were at real risk of refoulement, and that accordingly such relocation would constitute a breach of article 3 of the ECHR and contravene section 6 of the 1998 Act” (paragraph 293). The Lord Chief Justice dissented on that issue: “My conclusion accords with that of the Divisional Court. The evidence taken as a whole does not support such a real risk in either case.” … “In the result, I would dismiss the appeals” (paragraph 527). The Master of the Rolls also held that “the SSHD’s certification under [19(c)] was unlawful, because the asylum seekers’ ECHR claims were not clearly unfounded”, and that it was unnecessary to decide whether the Home Secretary had failed in her duties of inquiry (paragraph 13).

Third-country removal Safe third country Chain refoulement Diplomatic assurances Article 3 ECHR Evidence of destination conditions UNHCR evidence Judicial review

Caution The decision on the safety of Rwanda was by two votes to one, and all three judges agreed that the other grounds failed. In Underhill LJ’s words, “the position should now be judged as at the dates of the hearing in the Divisional Court” (paragraph 262). The Home Secretary appealed; the Supreme Court dismissed the appeal on 15 November 2023, and its entry records what Parliament did next.

European Court of Human Rights June 14, 2022 Third country: Rwanda, under the asylum partnership arrangement in the memorandum of understanding the United Kingdom entered into with Rwanda on 13 April 2022. He was served with removal directions to Rwanda for 14 June 2022, on a charter flight due to leave at 22:30 (BST) that evening (press releases ECHR 197 (2022) and ECHR 199 (2022)).

Disposition On 14 June 2022 the Court decided “in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of the United Kingdom, under Rule 39, that the applicant should not be removed until the expiry of a period of three weeks following the delivery of the final domestic decision in the ongoing judicial review proceedings.” On 3 October 2024 a Committee struck the application out of the list after the applicant said that he wished to withdraw it “as he had been afforded access to the United Kingdom asylum system” (decision notified on 24 October 2024).

On 24 May 2022 he was served with a notice that the authorities were considering treating his asylum claim as inadmissible and relocating him to Rwanda. On 27 May 2022 a doctor at the immigration removal centre issued a report “indicating that the applicant might have been a victim of torture”. On 6 June 2022 he was told that his claim had been deemed inadmissible. The High Court refused interim relief, though it accepted that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry raised serious triable issues; an appeal was dismissed on 13 June, and the Supreme Court refused permission to appeal on 14 June 2022 (press release ECHR 197 (2022)). The Court had regard to the concerns of UNHCR that asylum seekers transferred from the United Kingdom to Rwanda “will not have access to fair and efficient procedures for the determination of refugee status”, and to the High Court’s finding. It decided: “In light of the resulting risk of treatment contrary to the applicant’s Convention rights as well as the fact that Rwanda is outside the Convention legal space (and is therefore not bound by the European Convention on Human Rights) and the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts, the Court has decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues.” Five other people due on the same flight applied to the Court that day. It stayed the removal of R.M. and H.N. until 20 June 2022 to consider their requests in more detail; it rejected two requests “as those applicants had not made use of the suspensive remedies available before the national courts”; and one request was withdrawn after the Home Office withdrew the removal directions (press release ECHR 199 (2022)). The stays for R.M. and H.N., which concerned Iranian and Vietnamese asylum seekers, were not extended and expired (press release ECHR 112 (2023)). The Court of Appeal later recorded that NSK, RM and HTN were granted interim measures and that “The practical consequence was that no removals to Rwanda have yet taken place” ([2023] EWCA Civ 745, paragraph 17). On 24 June 2022 the Government asked the Court to lift the measure. The Court confirmed it on 1 July 2022, because the material the Government presented did not satisfy it that he “could and would be returned to the United Kingdom” if his legal proceedings succeeded. On 19 December 2022 the High Court held the Rwanda arrangement lawful in principle but quashed the decisions in his case, because the Home Secretary had not given adequate reasons for treating his asylum claim as inadmissible and the decision refusing his human rights claim had not considered the evidence he put forward; an order of 16 January 2023 formally quashed them. The Court then informed the parties that the measure “ceased to have effect on 6 February 2023, being three weeks after the individual decisions in N.S.K.’s case were formally quashed” (press release ECHR 112 (2023)). The complaint under Article 3 was communicated to the Government on 5 April 2023, with the question whether he could still claim to be a victim, given that he “cannot be removed to Rwanda without the Home Secretary reconsidering the decisions in his case”. The Court never decided it: on 2 September 2024 he told the Court that he wished to withdraw the application, and it was struck out.

Interim measures Third-country removal Safe third country Offshore processing Article 3 ECHR Judicial review

Caution An interim measure is not a judgment. In the Court’s words, measures under Rule 39 “are decided in connection with proceedings before the Court, without prejudging any subsequent decisions on the admissibility or merits of the case”. The measure, its reasons and its end are known from the Court’s press releases and its communication of the case, which quote the decisions; press releases state that they do not bind the Court. The Court’s documents give two different years of birth for him, so this entry gives none. The domestic courts later held the Rwanda policy unlawful: see the entries for the Court of Appeal (29 June 2023) and the Supreme Court (15 November 2023).

European Court of Human Rights July 8, 2021 Third country: Belarus. Border guards at Terespol turned them away to Belarus on five occasions in July 2017, including on the day the Court indicated an interim measure and the day after (paragraphs 5, 11, 14 and 69). The Court found that returning them there risked “chain‑refoulement” to Syria (paragraphs 63 and 64).

Disposition Unanimously: a violation of Article 3 “on account of the applicants being denied access to the asylum procedure and exposed to a risk of inhuman and degrading treatment and torture in Syria”; not necessary to examine the complaint about their treatment during border checks; a violation of Article 4 of Protocol No. 4; a violation of Article 13 taken with Article 3 and Article 4 of Protocol No. 4; and Poland “has failed to discharge its obligations under Article 34 of the Convention”. The Court continued to indicate that the applicants should not be removed to Belarus “if and when they present themselves at the Polish border crossing” until the judgment became final, and awarded EUR 10,000 to each applicant for non-pecuniary damage. The judgment became final on 22 November 2021.

The applicants went to the border crossing at Terespol three times between 14 and 18 July 2017 and, they said, asked each time for international protection (paragraph 5). Each time the border guards issued decisions turning them away on the ground that they were “simply trying to emigrate for economic or personal reasons”, based on official notes that the applicants had not signed (paragraph 8). On 20 July 2017, “at 10.08 a.m. the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be removed to Belarus until 3 August 2017. The Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicants were returned to Belarus at 11.25 a.m.” (paragraph 11). The next day they came back with a copy of the Court’s letter and the conscription orders, and were sent back again (paragraphs 13 and 14). The Court held that the applicants “could arguably claim that there was no guarantee that their asylum applications would be seriously examined by the Belarusian authorities and that their return to Syria could violate Article 3 of the Convention”, and that Poland was obliged to allow them “to remain within Polish jurisdiction until such time that their claims had been properly reviewed by a competent domestic authority” (paragraph 64). It rejected the argument that EU law required the refusals: the measure “fell outside the scope of Poland’s strict international legal obligations” (paragraph 67). Sending them back on each of the five occasions “constituted a violation of Article 3 of the Convention” (paragraph 69). Their cases “were part of the same wider policy” found in M.K. and Others v. Poland, and the decisions “constituted a collective expulsion of aliens within the meaning of Article 4 of Protocol No. 4” (paragraph 83).

Access to asylum Pushbacks Chain refoulement Collective expulsion Effective remedy Interim measures Article 3 ECHR Safe third country

Caution Like M.K. and Others v. Poland (see that entry), the judgment concerns an official border crossing in 2016 and 2017. It does not decide the summary returns at the Belarusian border from the summer of 2021, which are before the Grand Chamber in A.R. and Others v. Poland, to be ruled on 24 November 2026. The judgment records that the applicants “currently reside in Belarus” (paragraph 2); it does not record what happened to them after it was delivered.

European Court of Human Rights July 23, 2020 Third country: Belarus. Polish border guards at Terespol and Czeremcha-Połowce refused them entry and returned them to Belarus, on thirty-five, eight and nineteen or more occasions respectively (paragraph 185). The Court held that sending them back there exposed them to a serious risk of chain refoulement to Chechnya.

Disposition Applications joined and, unanimously, declared admissible. Unanimously: a violation of Article 3 “on account of the applicants being denied access to the asylum procedure and exposed to a risk of inhuman and degrading treatment and torture in Chechnya”; not necessary to examine the complaint under Article 3 about their treatment during border checks; a violation of Article 4 of Protocol No. 4; a violation of Article 13 taken with Article 3 and Article 4 of Protocol No. 4; and Poland “has failed to discharge its obligations under Article 34 of the Convention”. The Court continued to indicate to Poland “not to remove the applicants in cases nos. 40503/17 and 43643/17 to Belarus” … “until such time as the present judgment becomes final, or until a further decision is made”. By six votes to one, EUR 34,000 for non-pecuniary damage in each of the three applications, with costs; the remainder of the claim dismissed unanimously. The judgment became final on 14 December 2020, when a panel of the Grand Chamber rejected the requests for referral by the applicants and by the government.

The applicants came to the border crossings repeatedly and asked for international protection. The border guards refused them entry and sent them back to Belarus. In June 2017 the Court indicated interim measures that they not be returned to Belarus (paragraph 3). The Court held that “pending an application for international protection, a State cannot deny access to its territory to a person presenting himself or herself at a border checkpoint who alleges that he or she may be subjected to ill-treatment if he or she remains on the territory of the neighbouring State, unless adequate measures are taken to eliminate such a risk” (paragraph 179). The applicants “could arguably claim that there was no guarantee that their asylum applications would be seriously examined by the Belarusian authorities and that their return to Chechnya could violate Article 3 of the Convention” (paragraph 178), and “the Polish authorities, by failing to allow the applicants to remain on Polish territory pending the examination of their applications, knowingly exposed them to a serious risk of chain refoulement and treatment prohibited by Article 3 of the Convention” (paragraph 185). It found a collective expulsion. The applicants “attempted to cross the border in a legal manner, using an official checkpoint and subjecting themselves to border checks as required by the relevant law” (paragraph 207), and their cases were “an exemplification of a wider State policy of refusing entry to foreigners coming from Belarus, regardless of whether they were clearly economic migrants or whether they expressed a fear of persecution in their countries of origin” (paragraph 208).

Access to asylum Pushbacks Chain refoulement Collective expulsion Effective remedy Interim measures Article 3 ECHR Safe third country

Caution The applicants presented themselves at official border crossings, and the Court relied on that in finding a collective expulsion (paragraph 207). The judgment does not decide the summary returns at the Belarusian border from the summer of 2021, which are before the Grand Chamber in A.R. and Others v. Poland, to be ruled on 24 November 2026. Judge Eicke’s dissent concerned only the assessment of non-pecuniary damage.