R (on the application of AAA (Syria) and Others); R (on the application of HTN (Vietnam)); R (on the application of RM (Iran)); R (on the application of as (Iran)); R (on the application of SAA (Sudan)); R (on the application of ASM (Iraq)) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Reed,Lord Lloyd-Jones,Lord Hodge,Lord Briggs,Lord Sales
Judgment Date15 November 2023
Neutral Citation[2023] UKSC 42
CourtSupreme Court
R (on the application of AAA (Syria) and others)
(Respondents/Cross Appellants)
and
Secretary of State for the Home Department
(Appellant/Cross Respondent);
R (on the application of HTN (Vietnam))
(Respondent/Cross Appellant)
and
Secretary of State for the Home Department
(Appellant/Cross Respondent);
R (on the application of RM (Iran))
(Respondent)
and
Secretary of State for the Home Department
(Appellant);
R (on the application of AS (Iran))
(Respondent/Cross Appellant)
and
Secretary of State for the Home Department
(Appellant/Cross Respondent)
R (on the application of SAA (Sudan))
(Respondent)
and
Secretary of State for the Home Department
(Appellant);
R (on the application of ASM (Iraq))
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

[2023] UKSC 42

before

Lord Reed, President

Lord Hodge, Deputy President

Lord Lloyd-Jones

Lord Briggs

Lord Sales

Supreme Court

Michaelmas Term

On appeal from: [2023] EWCA Civ 745

Secretary of State for the Home Department

Lord Pannick KC

Sir James Eadie KC

Neil Sheldon KC

Edward Brown KC

Mark Vinall

Sian Reeves

Jack Anderson

Natasha Barnes

(Instructed by the Government Legal Department (Immigration))

AAA (Syria) and HTN (Vietnam)

Raza Husain KC

Phillippa Kaufmann KC

Christopher Knight

Jason Pobjoy

Anirudh Mathur

Emmeline Plews

Will Bordell

Rayan Fakhoury

(Instructed by Duncan Lewis (City of London))

RM (Iran)

Phillippa Kaufmann KC

Alasdair Mackenzie

David Sellwood

Rosa Polaschek

(Instructed by Wilsons Solicitors LLP)

AS (Iran)

Sonali Naik KC

Adrian Berry

Mark Symes

Eva Doerr

Isaac Ricca-Richardson

(Instructed by Barnes Harrild & Dyer (Croydon London Road))

SAA (Sudan) and others

Manjit Gill KC

Rambert Demello

Tony Muman

Professor Satvinder Juss

Rashid Ahmed

Harjot Singh [Solicitor Advocate]

Mohd Mosem [Solicitor Advocate] (Instructed by Twinwood Law Practice, Birmingham)

ASM (Iraq) and others

Richard Drabble KC

Leonie Hirst

Sarah Dobbie

Angelina Nicolaou

(Instructed by Wilsons Solicitors LLP)

United Nations High Commissioner for Refugees (Intervener)

Angus McCullough KC

Laura Dubinsky KC

David Chirico

Jennifer MacLeod

Agata Patyna

George Molyneaux

Joshua Pemberton

(Instructed by Baker McKenzie LLP (London))

Heard on 9, 10 and 11 October 2023

Lord Reed AND Lord Lloyd-Jones ( with whom Lord Hodge, Lord Briggs and Lord Sales agree):

1. Introduction
(1) The nature of the issue before the court
1

This appeal is concerned with the Secretary of State's policy that certain people claiming asylum in the United Kingdom should not have their claims considered here, but should instead be sent to Rwanda in order to claim asylum there. Their claims will then be decided by the Rwandan authorities, with the result that if their claims are successful, they will be granted asylum in Rwanda.

2

In this appeal, the court is required to decide whether the Rwanda policy is lawful. That is a legal question which the court has to decide on the basis of the evidence and established legal principles. The court is not concerned with the political debate surrounding the policy, and nothing in this judgment should be regarded as supporting or opposing any political view of the issues.

(2) The legal framework of the policy
3

For asylum claims made on or before 27 June 2022, including those with which these proceedings are concerned, the policy is given effect under paragraphs 345A to 345D of the Immigration Rules (as then in force), made in accordance with section 3 of the Immigration Act 1971 (“the 1971 Act”). In broad terms, under those paragraphs an asylum claim can be ruled inadmissible, with the consequence that the merits of the claim need not be considered, where the asylum seeker had the opportunity to apply for asylum in a safe third country but did not do so. If it is decided that an asylum claim is inadmissible, the asylum seeker can be removed either to the safe third country where the opportunity to make the asylum claim arose, if that country is willing to accept the asylum seeker, or to any other safe third country which agrees to accept him or her. The policy proceeds on the basis that the asylum seekers who are to be removed to Rwanda had the opportunity to apply for asylum in a safe third country (in most cases, France) but did not do so, and that Rwanda is another safe third country which has agreed to accept them, and to which they can therefore be removed.

4

The criteria for designation as a safe third country are set out in paragraph 345B:

“A country is a safe third country for a particular applicant, if:

(i) the applicant's life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country;

(ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;

(iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country; and

(iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country.”

5

The principle of non-refoulement, to which paragraph 345B(ii) refers, is guaranteed by the United Nations 1951 Convention relating to the Status of Refugees (Cmd 9171) and its 1967 Protocol (Cmnd 3906) (“the Refugee Convention”), to which the United Kingdom is a party. As explained below, it requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. In order to qualify as a safe third country under paragraph 345B(ii), Rwanda must accordingly be a country in which the principle of non-refoulement will be respected, ie a country which will not return refugees to another country where their life or freedom would be threatened. As we shall explain, refoulement is also prohibited under a number of other international conventions which the United Kingdom has ratified. There are also several Acts of Parliament which protect refugees against refoulement.

6

The Immigration Rules are supplemented by guidance to Home Office case workers, known as Country Policy Information Notes (“CPINs”). A CPIN entitled “Inadmissibility — Safe Third Country Cases”, published by the Secretary of State on 9 May 2022, explains arrangements for the transfer and processing of asylum seekers which have been entered into by the governments of the United Kingdom and Rwanda, known as the Migration and Economic Development Partnership (“MEDP”), and advises that certain categories of asylum seeker can be removed to Rwanda in accordance with paragraphs 345A and 345B of the Immigration Rules. Another CPIN published on the same date, entitled “Review of asylum processing – Rwanda: assessment”, considers the processing of claims for asylum in Rwanda, and advises that there are no substantial grounds for believing that a person, if relocated to Rwanda, would face a real risk of treatment that is likely to be contrary to article 3 of the European Convention on Human Rights (“the ECHR”) by virtue inter alia of refoulement or shortcomings in the asylum process. Article 3 prohibits torture and inhuman or degrading treatment or punishment. As we explain in para 28 below, by enacting the Human Rights Act 1998 (“the Human Rights Act”), Parliament has given the ECHR effect in domestic law.

7

At the time of the decisions with which these proceedings are concerned, it was also necessary, in order for an asylum seeker to be removed to another country while an asylum claim was pending, for the Secretary of State to certify, under paragraph 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”), that the country in question was a place where the asylum seeker's life and liberty would not be threatened by reason of race, religion, nationality, membership of a particular social group or political opinion, and from which the asylum seeker would not be sent to another state otherwise than in accordance with the Refugee Convention.

(3) The MEDP
8

The MEDP comprises a Memorandum of Understanding (“MOU”) between the governments of the United Kingdom and Rwanda, entered into on 13 April 2022, and two diplomatic Notes Verbales regarding “the asylum process of transferred individuals” and “the reception and accommodation of transferred individuals”, executed by the government of Rwanda on the same date. As we shall explain, these documents are critical to the Secretary of State's assessment that Rwanda is a safe third country for the purposes of paragraph 345B of the Immigration Rules. It is unnecessary to set out their terms in full, but we should draw attention to certain provisions.

9

Under paragraph 9 of the MOU, Rwanda undertakes that “it will treat each Relocated Individual, and process their claim for asylum, in accordance with the Refugee Convention, Rwandan immigration laws and international and Rwandan standards, including under international and Rwandan human rights law, and including, but not limited to ensuring their protection from inhuman and degrading treatment and refoulement”. Paragraph 9 also sets out a number of procedural guarantees, including access to an interpreter and to procedural or legal assistance, and to an independent and impartial process of appeal....

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