R (AAA (Syria) and others) v Secretary of State for the Home Department

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).