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In AAA v Secretary of State for the Home Department [2023] EWCA Civ 745, a majority of the Court of Appeal (Sir Geoffrey Vos MR, and Underhill LJ, with the Lord Chief Justice dissenting) held that the Government’s policy of removing asylum-seekers whose claims are deemed “inadmissible” to Rwanda is unlawful. That policy had been held to be lawful in the Divisional Court. The challenge arose from a number of linked judicial review claims challenging Home Office decisions to remove asylum seekers to Rwanda and the legality of the overall removal policy.
The court held that Rwanda was not a “safe third country” because there was a real risk that any person sent to Rwanda will be removed to their home country without their claims being properly decided and will thereby face treatment that would breach article 3 of the European Convention on Human Rights. The majority held that this risk was created by well established (and in large part admitted) deficiencies in Rwanda’s system for processing asylum claims, and that that risk could not be sufficiently ameliorated by the assurances given by the Government of Rwanda. There was no evidence that the promised changes had reliably been acted on so as to change the structural concerns.
With respect to the fairness of the procedure for deciding whether to send people to Rwanda, the Court accepted that seven days would not be enough time in the majority of cases for detained asylum seekers to make representations on why they should not be sent to Rwanda. It also accepted that the High Court was wrong to conclude that people did not need to be given enough time to make representations on why Rwanda was generally unsafe and wrong to say they did not need to have access to lawyers. The court held however that this deficiency in the published policy for processing claims did not in itself render the policy unlawful, given the government’s assurance that the system would be operated flexibly, so that the seven-day time period would not be treated as a time limit in all cases. It made clear its view that this aspect of the decision-making fairness requires “improvement”.
Richard Drabble KC acted for a number of individual claimants.
Tim Buley KC acted for Freedom from Torture, intervening particularly on the procedural fairness issue.
The judgment may be accessed here.
