The King on the application of AAA (Syria) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice Underhill,Lord Burnett of Maldon, CJ |
| Judgment Date | 29 June 2023 |
| Neutral Citation | [2023] EWCA Civ 745 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: CA-2023-000176; CA-2023-000180; CA-2023-000170; CA-2023-000172; CA-2023-000185; CA-2023-000193; CA-2023-000189 |
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[2023] EWCA Civ 745
The Lord Burnett of Maldon,
Lord Chief Justice of England and Wales
Sir Geoffrey Vos, MASTER OF THE ROLLS
and
Lord Justice Underhill
Vice-President of the Court of Appeal
(Civil Division)
Case Nos: CA-2023-000176; CA-2023-000180; CA-2023-000170; CA-2023-000172; CA-2023-000185; CA-2023-000193; CA-2023-000189
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
LORD JUSTICE LEWIS AND MR JUSTICE SWIFT
Royal Courts of Justice
Strand, London, WC2A 2LL
Raza Husain KC, Phillippa Kaufmann KC, Sam Grodzinski KC, Christopher Knight, Paul Luckhurst, Tim Johnston, Jason Pobjoy, Emma Mockford, Anirudh Mathur, Allan Cerim, Emmeline Plews, Will Bordell, and Rayan Fakhoury (instructed by Duncan Lewis Solicitors) for the Appellants in AAA and others and HTN (Vietnam)
Richard Drabble KC, Alasdair Mackenzie, David Sellwood, and Rosa Polaschek (instructed by Wilsons Solicitors LLP) for the Appellant in RM (Iran)
Richard Drabble KC, Leonie Hirst and Angelina Nicolaou (instructed by Wilsons Solicitors LLP) for the Appellant in ASM (Iraq)
Sonali Naik KC, Adrian Berry, Mark Symes, Eva Doerr, and Isaac Ricca-Richardson (instructed by Barnes Harrild & Dyer) for the Appellant in AS (Iraq)
Manjit S Gill KC, Ramby de Mello, Tony Muman and Harjot Singh, solicitor advocate (instructed by Twinwood Law Practice) for the Appellant in SAA (Sudan)
Charlotte Kilroy KC, Michelle Knorr, and Sarah Dobbie (instructed by Leigh Day) for Asylum Aid
Lord Pannick KC, Sir James Eadie KC, Neil Sheldon KC, Edward Brown KC, Mark Vinall, Jack Anderson, Sian Reeves, Robin Hopkins, and Natasha Barnes (instructed by Government Legal Department) for the Respondent
Angus McCullough KC, Laura Dubinsky KC, David Chirico, Jennifer MacLeod, Agata Patyna, Aarushi Sahore and Joshua Pemberton (instructed by Baker McKenzie LLP) for the United Nations High Commissioner for Refugees
Tim Buley KC, Nikolaus Grubeck, and Julianne Kerr Morrison (instructed by Freshfields Bruckhaus Deringer LLP) for Freedom from Torture (written submissions only)
Adam Straw KC, Catherine Meredith, Zoe Harper and Michael Spencer (instructed by Allen & Overy LLP) for the United Nations Special Rapporteur on Trafficking in Persons (written submissions only)
Hearing dates: 24 – 27 April 2023
Approved Judgment
This judgment was handed down in court shortly after 10.00am on Thursday 29 June 2023 and thereafter released to the National Archives.
TABLE OF CONTENTS
| THE MASTER OF THE ROLLS | [1]–[119] |
| Essential factual background | [16]–[28] |
| Essential legal background | [29]–[34] |
| Authorities | [29]–[32] |
| Relevant immigration rules | [33]–[34] |
| The reasoning of the Divisional Court | [35]–[52] |
| (i) Thorough examination and reasonable inquiries | [40]–[44] |
| (ii) Adequacy of asylum system | [45]–[47] |
| (iii) The Gillick issue | [48] |
| (iv) Conditions in Rwanda generally | [49]–[52] |
| The issues | [53]–[72] |
| The safety of Rwanda issues | [57]–[67] |
| The remaining issues | [68]–[72] |
| Discussion of the issues | [73]–[118] |
| Conclusions | [119] |
| LORD JUSTICE UNDERHILL | [120]–[451] |
| Introduction | [120] |
| A. Safety of Rwanda | [121]–[302] |
| The Background Law | [121]–[125] |
| The Shape of the Case | [126]–[132] |
| The Rwandan Asylum System | [133]–[144] |
| Criticisms of Particular Stages of the Process | [145]–[223] |
| Access to the RSD Process | [145]–[157] |
| Stage (1): DGIE | [158]–[174] |
| Stage (2): Eligibility Officer | [175]–[180] |
| Stage (3): the RSDC | [181]–[206] |
| Stage (4): Appeal to MINEMA | [207]–[210] |
| Stage (5): Appeal to the High Court | [211]–[223] |
| Criticisms Common to the System as a Whole | [224]–[260] |
| Legal Assistance/Representation | [224]–[240] |
| Interpreters | [241]–[244] |
| Training | [245]–[260] |
| Conclusion on the Adequacy of the Rwandan Asylum System | [261]–[272] |
| Risk of Refoulement | [273]–[286] |
| Article 3 Risks Other Than Refoulement | [287]–[292] |
| Conclusion on the Safety of Rwanda Issue | [293]–[295] |
| Issue 10: Gillick | [296]–[301] |
| Issue 11: Certification | [302] |
| B. The Remaining Issues | [303]–[455] |
| Issue 12: Breach of the Refugee Convention | [304]–[339] |
| Issue 13: Retained EU Law | [340]–[367] |
| Issue 14: Circumvention of Schedule 3 to the 2004 Act | [368]–[377] |
| Issue 15: Data Protection | [378]–[400] |
| Issue 16: Procedural Fairness | [401]–[455] |
| Introduction | [401]–[402] |
| The Procedure | [403]–[412] |
| The Grounds: Overview | [413]–[416] |
| Ground 15: Scope of Representations | [417]–[424] |
| Ground 16: Access to Legal Advice | [425]–[430] |
| Ground 17: Seven Days | [431]–[445] |
| Ground 18: Disclosure of Provisional Conclusions | [446]–[450] |
| Ground 19: Access to Justice | [451]–[453] |
| Ground 20: Construction of the Immigration Rules | [454] |
| Conclusion on Procedural Fairness | [455] |
| THE LORD CHIEF JUSTICE | [456]–[525] |
| The Issues on the Appeal | [475] |
| Summary of Conclusions | [476]–[478] |
| The Divisional Court's Judgment on the Article 3 and Allied Public Law Issues | [479]–[491] |
| Safety of Rwanda: The asylum system and refoulement issue | [492]–[515] |
| Safety of Rwanda: conditions in Rwanda | [516]–[518] |
| The procedural questions | [519]–[522] |
| Gillick | [523]–[524] |
| Conclusion | [525] |
Sir Geoffrey Vos, MASTER OF THE ROLLS:
The Divisional Court (Lewis LJ and Swift J) decided, in essence, to reject all the generic challenges made in these proceedings to the policy of the Secretary of State for the Home Department (SSHD) to relocate certain asylum seekers to Rwanda. The 10 individual appellants and Asylum Aid have been given permission to argue some 22 grounds of appeal in this court, and seek permission to argue one more. We have been provided with thousands of pages of documents and authorities and heard 4 days of concentrated argument.
Yet, at its foundation, the issue we have to decide is short. It is, at its most basic, whether the Divisional Court was right to decide, if that is what it did decide, one fairly straightforward issue, bearing in mind the guarantees and assurances that the Government of Rwanda had given to the UK Government. The SSHD submits that the Divisional Court decided, in effect, that there were no substantial grounds for thinking that: (a) Rwanda was not a safe third country, (b) there were real risks of refoulement (asylum seekers being sent back to their home countries) or breaches of article 3 (article 3) of the European Convention on Human Rights (ECHR), and (c) there were real risks that asylum claims would not be properly and fairly determined in Rwanda. The question is whether that was right. There are, of course, other issues but that is the central one. Article 3 provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
On 14 April 2022, the then Prime Minister announced the Migration and Economic Development Partnership (MEDP) with Rwanda, which he said would mean that anyone entering the UK illegally might be relocated to Rwanda. He said that “[t]he deal we have done is uncapped and Rwanda will have the capacity to resettle tens of thousands of people in the years ahead”. The MEDP comprises a Memorandum of Understanding of 13 April 2022 (MoU) and two Notes Verbales. The MoU has an initial term of 5 years. The Notes Verbales provide the guarantees of the Government of Rwanda regarding “the asylum process of transferred individuals”, and “the reception and accommodation of transferred individuals”.
The MEDP was developed to deter people from risking their lives in making dangerous journeys to the UK to claim asylum. These journeys are typically made by crossing the English Channel in small boats. They are often facilitated by people smugglers and criminal gangs, to whom asylum seekers pay considerable sums of money. The policy is a politically sensitive one which has attracted significant public and media attention. Notwithstanding that position, the case must be determined on the basis of the evidence and of accepted and familiar principles of public law. Nothing in this judgment should be construed as supporting or opposing any political view of the issues.
The appellants complain that the...
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