Decisions

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.