United Kingdom

Court of Appeal of England and Wales January 22, 2025 [2025] EWCA Civ 33

Disposition Appeal of the Secretary of State allowed: “For the reasons explained at [45] to [71] above, I would allow the appeal” (Males LJ, paragraph 88). Phillips LJ: “I agree.” Elisabeth Laing LJ: “I also agree, with one minor qualification.” The decision of the Special Immigration Appeals Commission that the revocation of his refugee status and the refusal of his further claim were unlawful was reversed. The Supreme Court refused permission to appeal on 5 June 2025: “The application does not raise an arguable point of law.”

The Special Immigration Appeals Commission had held the revocation unlawful because the Home Secretary had not balanced the danger D8 posed “against the cost, practicability and feasibility of any measures that might be taken to ameliorate the risk” and had not shown that revocation “was a measure of last resort” (paragraph 1). The Court of Appeal disagreed: “Once she has concluded that a refugee is a danger to national security, she is entitled to revoke his refugee status.” … “I accept that submission and would therefore allow the appeal” (paragraphs 2 and 3). Return to Iran was not in issue: “as SIAC found that D8 would face at least a real risk of torture if returned, contrary to Article 3 ECHR, and even the risk of a violation of his right to life under Article 2 ECHR, there is now no question of him being returned. Thus, whatever the outcome of this appeal, the Secretary of State accepts that some form of leave to remain will have to be granted to D8” (paragraph 12). The court put the principle in one sentence: “Put another way, we do not send people back to be killed or tortured even if they are a danger to the national security of United Kingdom” (paragraph 26). It drew the line between the two: “If it were not for the fact that to return him to Iran would put his life at risk and would expose him to a real risk of torture or other inhuman or degrading treatment, she would be entitled to refoule him.” … “Although refoulement is not possible, the Secretary of State was entitled to take the lesser steps of revoking D8’s refugee status” (paragraph 71).

Refugee status National security Article 3 ECHR Non-refoulement Refugee Convention Article 33(2)

Caution The label records that D8 lost this appeal. It does not mean that he may be sent to Iran: the Commission found a real risk of torture there, the Home Secretary did not challenge the finding, and the court recorded that there is “no question of him being returned”. What he lost was refugee status. The Commission had observed that “the distinction between full refugee status and the lesser form of discretionary leave which will have to be granted to him is significant”, a point the court was not asked to consider (paragraph 89). The court decided the appeal on the Commission’s open judgment and did not see the closed judgment or the closed material (paragraph 4).

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 January 17, 2012 ECHR 2012 (extracts)

Disposition Unanimously: the application declared admissible; “the applicant’s deportation to Jordan would not be in violation of Article 3 of the Convention”; no violation of Article 3 taken in conjunction with Article 13; deportation to Jordan would not be in violation of Article 5; and “the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention on account of the real risk of the admission at the applicant’s retrial of evidence obtained by torture of third persons”. The judgment became final on 9 May 2012, when a panel of the Grand Chamber refused his request for referral.

Omar Othman, known as Abu Qatada, was recognised as a refugee in 1994 on the basis that he had been detained and tortured by the Jordanian authorities (paragraph 7). He was convicted in his absence in Jordan in April 1999, and again after a trial in the autumn of 2000, when he was sentenced to fifteen years’ imprisonment with hard labour (paragraphs 9, 18 and 19). On 10 August 2005 the United Kingdom and Jordan signed a memorandum of understanding setting out assurances for people returned between them, and the next day he was served with notice of intention to deport (paragraphs 8 and 23). The Court restated the rule: “Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion” (paragraph 185). On assurances it held that “assurances are not in themselves sufficient to ensure adequate protection against the risk of ill‑treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment” (paragraph 187), and that “it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances” (paragraph 188). It concluded that “the applicant’s return to Jordan would not expose him to a real risk of ill-treatment” (paragraph 205). It held against the deportation because of the risk that evidence obtained by torturing other people would be used at his retrial: “the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial” (paragraph 267). It found “a real risk that the applicant’s retrial would amount to a flagrant denial of justice” (paragraph 282). The Court’s press release called it “the first time that the Court has found that an expulsion would be in violation of Article 6”.

Article 3 ECHR Diplomatic assurances National security Evidence obtained by torture Fair trial Flagrant denial of justice

Caution The Court accepted that the assurances Jordan gave answered the risk of torture; the deportation was barred only by the risk that evidence obtained by torturing other people would be admitted at his retrial. The judgment does not record what happened after it became final, and the Coalition has not read a source on it. The Supreme Court of the United Kingdom applied the Othman approach to assurances in R (AAA (Syria) and others) in 2023 (see that entry) and reached the opposite result on Rwanda.

European Court of Human Rights March 2, 2010 ECHR 2010

Disposition Unanimously: a violation of Article 3; “it is not necessary to decide whether there have been violations of Article 2 of the Convention or Article 1 of Protocol No. 13”; and no violation of Article 6. By six votes to one, “there have been violations of Articles 13 and 34 of the Convention”. Unanimously, the findings of violation “constitute sufficient just satisfaction for the non-pecuniary damage suffered by the applicants”, and EUR 40,000 to the applicants jointly for costs and expenses. The judgment became final on 4 October 2010.

British forces arrested the first applicant on 30 April 2003 and the second on 21 November 2003 and held them in British-run detention facilities in Iraq (paragraph 41). In December 2005 their cases were referred to the Iraqi courts (paragraph 162). The Divisional Court in London found: “we are satisfied that substantial grounds have been shown for believing there to be a real risk of the claimants being condemned to the death penalty and executed, contrary to Protocol No. 13, if they are transferred into the custody of the IHT”, but held that the United Kingdom was bound in international law to hand them over (paragraph 60). On 30 December 2008 the Court indicated that they “should not be removed or transferred from the custody of the United Kingdom until further notice”. The next day the Government informed it that “the applicants had nonetheless been transferred to the custody of the Iraqi authorities earlier that day” (paragraph 4). The Court held that from 1 February 2004, when Protocol No. 13 came into force for the United Kingdom, it should not have entered into any arrangement “which involved it in detaining individuals with a view to transferring them to stand trial on capital charges”, and that “the applicants’ well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention” (paragraph 137). Because British forces had arrested and held them, the United Kingdom “was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13” (paragraph 140), and the transfer “in the absence of any such binding assurance” failed to take proper account of those obligations (paragraph 143). On the interim measure: “The failure to comply with the interim measure and the transfer of the applicants out of the United Kingdom’s jurisdiction exposed them to a serious risk of grave and irreparable harm” (paragraph 165). For the same reason “the effectiveness of any appeal to the House of Lords was unjustifiably nullified as a result of the Government’s transfer of the applicants to the Iraqi authorities” (paragraph 166).

Article 3 ECHR Death penalty Transfer of custody Interim measures Article 34 ECHR Effective remedy Diplomatic assurances

Caution The Article 3 violation lies in the fear of execution to which the two men were exposed, which the Court held to be inhuman treatment; it is not a finding that they were tortured in Iraq. When the Court ruled, the Iraqi High Tribunal had cancelled the charges against them on 9 September 2009 “due to insufficient evidence”, the prosecutor had appealed, and the Court of Cassation had sent the case back for reinvestigation and retrial; they remained in custody (paragraphs 88 and 89). The Committee of Ministers of the Council of Europe, which supervised the execution of the judgment and has closed the case, records that “Al Saadoon and Mufdhi were released from custody by the Iraqi authorities in 2011”, after the Court of Cassation ratified the Tribunal’s decision to acquit them.

European Court of Human Rights November 15, 1996 Reports 1996-V

Disposition By twelve votes to seven, that “in the event of the Secretary of State's decision to deport the first applicant to India being implemented, there would be a violation of Article 3 of the Convention”. By thirteen votes to six, no violation of Article 5 § 1. Unanimously, a violation of Article 5 § 4, and a violation of Article 13 in conjunction with Article 3. By seventeen votes to two, not necessary to consider the complaint under Article 8. The findings of violation held to be sufficient just satisfaction for non-pecuniary damage; £45,000 awarded for costs and expenses, less 21,141 French francs; the remainder of the claim dismissed.

On 14 August 1990 the Home Secretary decided that Karamjit Singh Chahal should be deported to India because his presence in the United Kingdom was “unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism” (paragraph 25). He said that on a visit to Punjab in 1984 the police had held him for twenty-one days, beaten him to unconsciousness, electrocuted him and subjected him to a mock execution (paragraph 18). The Home Secretary obtained an assurance from the government of India, repeated in December 1995, that he “would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities” (paragraph 37). The Grand Chamber held that the risk could not be weighed against the danger he was said to pose: “The prohibition provided by Article 3 (art. 3) against ill-treatment is equally absolute in expulsion cases.” … “In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 (art. 3) is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees” (paragraph 80). On the assurance: “Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above (paragraph 92), it would appear that, despite the efforts of that Government, the NHRC and the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem (see paragraph 104 above). Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety” (paragraph 105). It concluded that “the order for his deportation to India would, if executed, give rise to a violation of Article 3 (art. 3)” (paragraph 107). The Court also found that “neither the advisory panel nor the courts could review the decision of the Home Secretary to deport Mr Chahal to India with reference solely to the question of risk, leaving aside national security considerations” (paragraph 153), so that he had no effective remedy, and that neither habeas corpus, judicial review nor the advisory panel met the requirements of Article 5 § 4 for the review of his detention (paragraph 132). The detention itself, with a view to deportation, did not breach Article 5 § 1.

Article 3 ECHR Non-refoulement National security Diplomatic assurances Detention pending removal Effective remedy Judicial review

Caution The Article 3 finding was made by twelve votes to seven. The judgment decides whether the deportation order could be carried out on the evidence before the Court in 1996, when Mr Chahal was still detained; it does not record what happened to him afterwards, and the Coalition has not read a source that does. The Court applied the same rule, that the risk of ill-treatment cannot be weighed against the reasons for removal, in Othman (Abu Qatada) v. the United Kingdom in 2012 (see that entry), where it accepted the assurances Jordan gave.

European Court of Human Rights October 30, 1991 Series A no. 215

Disposition The Court held “by eight votes to one that there has been no violation of Article 3” and “by seven votes to two that there has been no violation of Article 13”.

After the House of Lords upheld the refusals of asylum on 11 December 1987, the European Commission of Human Rights refused on 18 December 1987 to indicate that the men should not be removed (paragraphs 68 and 70), and they were sent back to Sri Lanka in February 1988. Their appeals went on from abroad. On 13 March 1989 an Adjudicator held that they had had a well-founded fear of persecution, largely believed their accounts, and directed “that they should be returned to the United Kingdom with the minimum of delay” (paragraph 71). They came back in August and October 1989 and were given exceptional leave to remain (paragraphs 20, 31, 44, 58 and 66). Three of them described ill-treatment after their return. The second applicant said he was taken to a camp of the Indian Peace Keeping Forces in Jaffna, “where he was beaten for about three hours” (paragraph 28); the third that, in the custody of those forces, he was “tortured every four or five days” (paragraph 43); the fourth that the police arrested him and he was “beaten with belts and kicked for about half an hour” (paragraph 56). The Court judged the risk as it stood when the men were removed: the examination “must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka in the light of the general situation there in February 1988 as well as on their personal circumstances” (paragraph 108). It found that the evidence did “not establish that their personal position was any worse than the generality of other members of the Tamil community or other young male Tamils who were returning to their country”, and that “A mere possibility of ill-treatment, however, in such circumstances, is not in itself sufficient to give rise to a breach of Article 3” (paragraph 111). Of the later ill-treatment it said: “Be that as it may, however, there existed no special distinguishing features in their cases that could or ought to have enabled the Secretary of State to foresee that they would be treated in this way” (paragraph 112). On Article 13 the majority held that the courts’ powers in judicial review “do provide an effective degree of control over the decisions of the administrative authorities in asylum cases and are sufficient to satisfy the requirements of Article 13” (paragraph 126). Judge Walsh, joined by Judge Russo, disagreed: “Judicial review cannot grant any relief simply on the grounds that the facts of any given case disclose a breach of the Convention.”

Article 3 ECHR Non-refoulement Removal already carried out Evidence of destination conditions Effective remedy Judicial review

Caution The Court decided on what the Home Secretary knew or ought to have known in February 1988. It said that it may have regard to information that comes to light after an expulsion, but that the risk “must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion” (paragraph 107). It did not find the men’s accounts of ill-treatment untrue. By the time it ruled, all five had been allowed to return to the United Kingdom. The Coalition’s page on the United Kingdom discusses the judgment among the material that runs the other way.