29/06/2023
Court rules Rwanda ‘not safe’ for asylum seekers as government loses latest stage of court battle
Appeal judges reverse decisions that Rwanda ‘safe third country’, warning deportations will be unlawful ‘deficiencies in its asylum processes are corrected’
The Rwanda deal has been ruled unlawful by the Court of Appeal, with judges finding that it is not a safe country to receive asylum seekers from the UK.
The government lost the latest stage of the long-running legal battle over the scheme to forcibly deport asylum seekers to the African nation, but flights will remain suspended ahead of an expected showdown at the UK Supreme Court.
The Court of Appeal ruled granted an appeal by asylum seekers selected for deportation, who were backed by the United Nations Refugee Agency (UNHCR), on the ground of Rwanda’s safety but dismissed other arguments.
The outgoing Lord Chief Justice, Lord Burnett, said: “The High Court’s decision that Rwanda is a safe third country is reversed. Unless and until the deficiencies in its asylum processes are corrected, removal of asylum seekers to Rwanda will be unlawful.”
The Rwanda plan is a core part of Rishi Sunak’s pledge to stop small boat crossings, and an important pillar of the new Illegal Migration Bill, which aims to see all small boat migrants detained and deported without asylum claims being considered.
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The prime minister previously told parliament that no flights would leave for Kigali until legal challenges had been resolved, and that will take several more months if the case is appealed to the Supreme Court.
A group of asylum seekers challenged the lawfulness of the Rwanda policy on eight grounds, including by arguing that it constitutes an unlawful “penalty” punishing refugees for using small boats.
Lawyers representing the Asylum Aid charity separately argued that the way people are selected for the scheme and given the opportunity to resist deportation is unlawful.
The UN Refugee Agency (UNHCR) also intervened in the battle, telling the Court of Appeal that safeguards in the agreement signed by Priti Patel in April 2022 “do not exist or have never been used”, and that it had never known Rwanda to treat asylum seekers in the ways promised.
Lord Burnett reconsidered the case with Sir Geoffrey Vos and Lord Justice Underhill, after the High Court initially ruled the Rwanda deal lawful in December.
The government hailed that judgment as a victory, although all individual cases were quashed as unlawful and only the policy itself was allowed to stand.
During a four-day hearing in April, the Court of Appeal was told that the Home Office breached several legal duties in deciding that Rwanda was a safe country to receive refugees, and failed to properly investigate the outcome of a similar deal with Israel which operated from 2013 to 2018.
A barrister representing six men selected for deportation said there was a risk they would be denied proper access to asylum in Rwanda, and that judges had previously shown “excessive deference” to promises made by the Rwandan government that were not backed up by evidence.
Raza Husain KC described Rwanda as “an authoritarian one-party state”, which “imprisons, tortures and murders those it considers its opponents”.
The court heard that asylum seekers previously sent from Tel Aviv were detained without the opportunity of claiming asylum, sometimes justified on the grounds of “security concerns”, then arrested for a lack of documentation.
Some asylum seekers disappeared, while others were smuggled to Uganda and some died while fleeing Rwanda and attempting to journey towards Libya.
The court was told that the situation asylum seekers found upon arrival in Rwanda was “completely different to what they had been promised”, and there were no documents showing what Paul Kagame’s government promised Israel.
Mr Husain argued that the High Court had wrongly put “partisan” claims by the government of Rwanda on the same level as sworn documents from the UN Refugee Agency (UNHCR).
A witness statement from the authority said: “Asylum seekers transferred to Rwanda are at serious risk of both direct and indirect refoulement and will not have access to fair and efficient asylum procedures, adequate standards of treatment or durable solutions, in line with the requirements set out in international refugee law.”
Mr Husain said the Home Office had deliberately excluded the UNHCR during its consideration of the scheme because of its anticipated disapproval, and based its judgement on Rwanda’s safety on inadequate civil service reports based on two visits in early 2022.
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The Home Office’s legal representatives said there were “clear and compelling reasons” why the British government believed Rwandan authorities would comply with their promises.
They argued that the previous arrangement between Israel and Rwanda was “irrelevant to the up-to-date assessment of the accessibility and functioning of Rwanda’s asylum system”, and involved “very different” financial arrangements.
