On 19 December 2022, the High Court ruled in the case of AAA and others v Secretary of State for the Home Department that the government’s plan to deport migrants to Rwanda is lawful.
Despite the claimants’ efforts to argue that the plan is contrary to the Refugee Convention, the High Court declared that it does not breach the UN Refugee Convention nor the legal obligations imposed by the Human Rights Act 1998. However, this is not a definitive decision, as it will likely be appealed to the Court of Appeal and Supreme Court.
The Rwanda asylum plan was first announced by the Conservative government in April 2022. It aims to remove some asylum seekers from the UK to Rwanda so that their claims be assessed according to Rwandan law, which will lift the UK’s responsibilities to these migrants. Once in Rwanda, they can either be granted asylum or removed back to their country of origin. The launch of the plan triggered a widespread wave of protests among activist groups and the challenge to the lawfulness of the removal policy brought by AAA & Otrs, four individual asylum seekers (who also brought individual challenges against the decisions to remove them under the policy) together with the Public and Commercial Services Union, Detention Action and Care4Calais. When the UK sought to remove its first group of asylum seekers to Rwanda under the policy in May, a a last-minute injunction from the European Court of Human Rights pending the outcome of AAA & Otrs led to the flight being abandoned.
In making its judgment in December 2022, the High Court concluded that it is lawful to make arrangements to relocate asylum seekers to Rwanda. The court did not itself determine whether Rwanda is a safe country for migrants’ removal, instead they looked at whether the Home Secretary had made a lawful decision in deciding that it is. The court held that the Home Secretary had made a lawful decision because she had done a “thorough examination of all relevant generally available information”. This assessment was favored by a lack of evidence that could show how these asylum-seekers might be treated in Rwanda, as removals have not yet taken place. The court did not want to consider past instances where Rwanda had breached its obligations, as using past evidence to show some future concerns would only be “speculative”.
The court also rejected the claimants’ argument that the Rwanda plan breached two provisions of the Refugee Convention. They held that there is a “clear consensus” that Article 31, which provides that penalties should not be imposed on refugees based on their illegal entry or presence, does not prevent a state from removing a refugee. In addition, since the judges had already held that the Home Secretary’s decision to establish Rwanda as a safe country was lawful, the court rejected the claimants’ argument that the policy breached Article 33, which provides that a refugee should not be expelled or returned to a territory where their life or freedom would be threatened.
The court also rejected additional arguments made by the claimants. The judges did not hold that the policy was discriminatory, despite the special provisions made by the Home Secretary for Ukrainian refugees. They also believed that the claimants had been given an adequate opportunity to explain why they had not claimed asylum in countries they had been to, and that procedural fairness did not mean they had to be provided with legal representation as this was a question of fact, not of law.
The individual decisions for the four asylum-seeking claimants were found to be inadequate and will need re-making, even though the policy itself remains lawful. However, as it is likely the High Court’s decision will be appealed, for now, removals to Rwanda remain suspended thanks to the interim measure issued by the European Court of Human Rights, which has stated that removals cannot take place until 3 weeks after the delivery of the final domestic decision of the judicial review proceedings.