Today (19 December 2022), the High Court ruled that the government’s plan to send asylum seekers to Rwanda for the processing of their claims was lawful. The full judgment can be found here. The applicants will be appealing and so the final decision awaits.
Back in the summer, the European Court of Human Rights ruling against the plan specified that no removals should take place until the after final decision is reached. It is unlikely that the UK government will breach that ruling and so early removals are unlikely.
The court’s task
The task of the court was to determine if the government acted legally. Its task was not to consider the merits of the plan or whether Rwanda was a safe country, but to consider whether the government had taken the right steps to satisfy itself that Rwanda was a safe and suitable country to which refugees might be removed.
The court concluded that the government had assessed all the information available and so the decision was lawful. The extent to which the available information had been taken into account, or the quality of that information, was not for determination. The court only decided that the process of reaching its decision was lawful.
A major plank of the Home Office’s defence was that, irrespective of how refugees in general, or those previously sent by Israel, were treated in Rwanda, the memorandum of understanding (MOU) the UK government had reached with Rwanda, although not legally binding, meant that Rwanda was obliged to treat those sent by the UK fairly and without discrimination.
It was for the applicants to demonstrate that not only were there examples of mistreatment of other refugees but that the Rwanda government was likely to breach the MOU and mistreat those sent from the UK. As none have yet been deported, it is impossible to prove that these refugees will be mistreated. The court, therefore, opined that any evidence of how other refugees in Rwanda had fared was not relevant to the legality of the case because the MOU was, effectively, a guarantee of good treatment.
The Rwanda judgment
The court took the view that the UK was entitled to ‘expel’ a refugee so long as it did not breach the UN refugee convention principle of refoulement (expelling someone to a country where their life of freedom would be threatened). The EU Dublin III provisions (which allow one EU country to send back to another, an asylum seeker who has passed through it) to which the UK had been a party and was not in breach of UN principles, indicate expulsion is legal so long as the country is safe or, in this case, the government has taken sufficient steps to assures itself that the country was safe.
The court accepted the government argument that the Rwanda plan was intended as a deterrent to “protect refugees from exploitation by criminal gangs”. Again, the likely effectiveness of the policy in this regard was not under consideration. Having established the objective to be lawfully arrived at, the court found the government did not discriminate in choosing those arriving by small boats or young men to be the target of the policy.
There were also some procedural and technical points raised by the applicants about the immigration rules and their coherence/clarity, the timing of the start of the Rwanda scheme, and whether it was lawful only under the Nationality and Borders Act and not prior legislation (and so unlawful for these applicants). The government won these decisions.
Each case to be determined on its merits
However, the court also ruled:
“The Home Secretary must consider properly the circumstances of each individual claimant. The Home Secretary must decide if there is anything about each person’s particular circumstances which means that his asylum claim should be determined in the United Kingdom or whether there are other reasons why he should not be relocated to Rwanda.
“The Home Secretary has not properly considered the circumstances of the eight individual claimants whose cases we have considered. For that reason, the decisions in those cases will be set aside and their cases will be referred back to the Home Secretary for her to consider afresh.”
At least in the short-term, this element of the judgment may be significant in preventing the Rwanda scheme from going ahead. The Home Office gave scant consideration to the circumstances of those it attempted to send to Rwanda, not just the eight applicants. Some were seriously ill, mentally or physically. Few understood what was happening to them and had been unable to access legal advice. A number had family in the UK and had good reason to apply for asylum in the UK. All were vulnerable.
Home Office must properly consider each application
In the piece Yorkshire Bylines has just published on the use of holiday camps to hold asylum seekers, I wrote:
“Rather than ensure applicants can obtain good legal advice from the beginning, unhelpful barriers are built into the system: not telling people of the available advice and how to access it; only providing information in English; failing to explain how the system works and what sort of legal or other advice applicants need and when. This leads to more appeals against immigration decisions and late applications for appeals against removals, at enormous financial and reputational cost.”
Time and again the Home Office hopes to get away with its failure to properly consider an applicant’s situation as an individual, or to put in place the necessary supports and processes that would enable it to do this better. In turn this has led to the inevitable need for ‘lefty lawyers’, successful appeals and policy failure.
The Rwanda scheme may yet go ahead, but if the Home Office believes it can forcibly detain and remove new arrivals without first undertaking a thorough assessment, this court judgment has made it clear that the government cannot do this when people’s lives and futures are at stake.
