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On Monday 19 December, the High Court found the Rwanda deportation policy to be lawful and compliant with the legal obligations under 1951 Refugee Convention and the Human Rights Act 1998, following a five-day judicial review.
Refugee charities Asylum Aid, Care4Calais, Detention Action, and the Public and Commercial Services (‘the challengers’) had joined forces with asylum seekers from Iraq, Syria, Iran, Albania and Vietnam, to challenge the policy.
The Home Secretary’s determination that Rwanda is a safe third country was not considered legally flawed, as she had carried out a “thorough examination” of all “the relevant generally available information” of the type envisaged by the European Court of Human Rights, in the case of Ilias and Ahmed v Hungary (2020) 71 EHRR 6 (Ilias).
In the case of Ilias, the Court stated that removal of an asylum claimant, whose claim had not been determined on its merits, would amount to a breach of Article 3 rights if “adequate asylum procedures protecting [the claimant] against refoulement” were not in place in the receiving state. Refoulment means forcing the refugee or asylum seekers to return to the country where they are likely to face persecution. Article 3 of the ECHR is the right to not be tortured or be treated in a degrading or inhumane way.
The ECHR further held in Ilias, that if a state wished, consistently with Article 3 of the ECHR, to remove an asylum claimant without first determining his asylum claim on its merits, it should “examine thoroughly whether [the receiving country’s] asylum system could deal adequately with those claims.
The High Court found that the assessment documents (9 May assessment), the Memorandum of Understanding, Notes Verbales (an informal diplomatic note), and the consideration of the further information that came to light from United Nations High Commissioner for Refugees (UNCHR) was sufficient to show that the Home Secretary carried out a thorough examination of all the relevant generally available information, as to whether Rwanda could deal properly with the asylum claims. It was also held that she had asked the right question as to the above, and took reasonable steps to acquaint herself with the relevant information to enable her to answer that question, as per the case of Tameside.
As to the concerns raised about Rwanda’s ability to process the number of claims, it was noted that significant resources will be provided to Rwanda to assist, and the number of people transferred would depend on the consent of the Rwandan government, depending on their capacity. As significant financial assistance is being provided by the UK, it was held that there is a clear incentive for the Rwandan authorities to ensure compliance with the terms of the arrangement.
The Claimant’s had also contended that the Rwandan authorities would respond extremely if the individuals criticised their treatment or conditions, which would be contrary to Article 3 of ECHR. They referred to an incident where the Rwandan police had opened fire and killed refugees in the Kiziba refugee camp in 2018 for protesting about the conditions in the camp.
The Court found that no inference can be drawn from this incident, that the UK-Rwanda arrangement makes provisions for the individuals to raise a complaint about the accommodation and support, that the Rwandan authorities have an incentive to abide by the agreement, and that there was no evidence to suggest that the asylum seekers (the claimants) who had joined with the charities to bring this judicial review, would have to conceal any presently held political or other views.
Fundamentally, the High Court held that the Home Secretary is required to consider the circumstances of each individual. They are required to consider if there is anything about their circumstances which would make it necessary for their claim to be dealt with in the UK. The decisions in the Claimant’s cases were set aside and the Home Secretary was asked to consider them afresh.
A further hearing is due to take place on 16 January 2023 where the court will be considering any applications for permission to appeal. It is understood that the challengers will be appealing the decision.
This article is intended for guidance only and ‘must not’ be relied upon for specific advice.
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