On 15 November 2023 the UK Supreme Court, the highest jurisdiction of the United Kingdom, rendered a landmark judgment on the so-called UK-Rwanda policy.
This policy, issued by the UK Secretary of State, implies that migrants, instead of the UK, should be sent to claim asylum in Rwanda. Therefore, their claims will then be decided by the Rwandan authorities and, if successful, they will be granted asylum in Rwanda (paras 1-3 of the judgment).
The main element of the Secretary of State policy with regard to Rwanda is known as the Migration and Economic Development Partnership (“MEDP”) which advises that certain categories of asylum seeker can be removed to Rwanda in accordance with paragraphs 345A and 345B of the UK Immigration Rules on Asylum. The MEDP comprises of a Memorandum of Understanding (“MOU”) between the governments of the United Kingdom and Rwanda, entered into on 13 April 2022, and two diplomatic Notes Verbales regarding “the asylum process of transferred individuals” and “the reception and accommodation of transferred individuals”. These two documents are part of the Secretary of State’s assessment that Rwanda is a safe third country for the purposes of paragraph 345B of the Immigration Rules (para 8 of the judgment).
Several asylum seekers challenged this policy in front of UK courts (paras 13-14 of the judgment). The competent Divisional Court (a court consisting of not less than two judges of one of the Divisions (King’s Bench Division) of the High Court) held in first instance that the Secretary of State’s policy was lawful (judgment of 19 December 2022, that can be downloaded here).
The Court of Appeal, in turn, reversed that decision (judgment of 29 June 2023, that can be downloaded here) not unanimously but by a majority. The majority of the Court of Appeal considered that the Divisional Court erred on assuming that the government has a unchecked discretion when implementing UK-Rwanda’s policies (see however the diverse position of the Lord Chief Justice). The Court of Appeal also held that the Divisional Court had applied the wrong legal test and concluded that there were substantial grounds for believing that there was a real risk that asylum seekers removed to Rwanda would be subject to refoulement, because of the Rwandan authorities’ failure to determine their claims for asylum accurately and fairly. The Secretary of State’s policy was accordingly held to be unlawful.
The Secretary of State then appealed the Court of Appeal judgment in front of the UK Supreme Court and raised the following issues: (1) whether the majority of the Court of Appeal was correct to conclude that the Divisional Court had applied the incorrect legal test and (2) whether the Court of Appeal was entitled to challenge the decision of the government and declare the existence of a real risk of ill-treatment. Incidentally, the UK Supreme Court also allowed the appellants to raise an interesting ground concerning the possibility to apply retained EU law to this case.
The UK Supreme Court eventually found that the Court of Appeal rightfully reviewed the Divisional Court decision and that was consequently allowed to interfere and declare the existence of a real risk of ill-treatment, but eventually dismissed the third ground (paras 107 ff. of the judgment).
The UK Supreme Court referred to several decisions of the ECtHR and of domestic courts that applied the correct approach to a case of the present kind. These judgments (e.g., from the ECtHR Ilias v Hungary [2017] ECHR 255, Othman v United Kingdom [2012] ECHR 56, from the UK Supreme Court, Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14) make it clear that a State party cannot remove asylum seekers to a third country without determining their asylum status. This, in particular, when there is a real risk of ill-treatment in the potential destination of the asylum seeker.
According to the UK Supreme Court, the Court of Appeal was indeed entitled, while evaluating the evidence before it, to consider that there were at least four reasons for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement (also in light of the famour ECtHR case law in Soering v United Kingdom (1989) 11 EHRR 439) if they were removed to Rwanda (para 73). First, part of the process in front of the Rwandan authorities takes place in absence of legal representation (para 84 of the judgment). Second, as the UNHCR claims, the rejection rate of asylum application is extremely high, close to 100%. Third, Rwanda regularly practices, again according to the evidence brought in the proceeding by the UNHCR, refoulment of asylum applicants (para 87 of the judgment). Finally, the UK Supreme Court also underlined the apparent inadequacy of the Rwandan government’s understanding of the requirements of refugee law (para 91 of the judgment).
The UK Supreme Court eventually found that while the Divisional Court erred in its assessment of the evidence brought in front of them, the Court of Appeal on the other side correctly exercised its evaluation of the real risk of ill-treatment asylum seekers would face if removed to Rwanda (paras 101-105 of the judgment).
However, the UK Supreme Court did not contest that a case-by-case evaluation needs to be done with reference to agreements alike the UK-Rwanda one, but limited itself to underline that there is a need, for national courts, to challenge the discretion of the government in evaluating the safety of the third country.
Surprisingly, shortly after the judgment the UK government declared that “the Supreme Court – like the Court of Appeal and the High Court before it – has confirmed that the principle of sending illegal migrants to a safe third country for processing is lawful”. This statement seems to be at best manipulative, as no court in Europe has ever contested the possibility for a State to conclude an international agreement with another one. The UK Government, however, is so unlikely to recognize the defeat of its policy in front of the judges that is also seemingly planning to grant, via national legislation, the status of safe third country to Rwanda (this was stated by PM Rishi Sunak via Twitter/X).
This UK judgment brings back to the picture the centrality of judicial appreciation in evaluating agreements related to the externalization of the management of migration. This case-by-case approach, while not perhaps being sound in terms of legal certainty (as the solution of the case might vary according to the State of destination), will reinforce the importance of a judicial scrutiny based on national, supranational and ECtHR standards. Although not ruling out entirely this possibility, the presence of a high level of judicial scrutiny reduces the possibility that agreements alike this one (see also the recent comment of the Italy-Albania agreement on this Blog) will allow national authorities to circumvent supranational rules (like the EU ones) on asylum and free movement and to potentially lower the standards of protection of fundamental rights.
Giovanni Zaccaroni is a team member of the FAMIMOVE Research Unit of the University of Milan-Bicocca. This comment reflects the personal views of the author and not the ones of the Project
Photo credits: UK Supreme Court
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