UK:n korkein oikeus ei hyväksynyt turvapaikanhakijoiden sijoittamista Ruandaan

15.11.2023 | Oikeusuutiset

Markku Fredman

Background to the Appeal

Under the Home Secretary’s Rwanda policy, certain people claiming asylum in the UK will be sent to Rwanda where their claims will be decided by the Rwandan authorities. If their claims are successful, they will be granted asylum in Rwanda. In this appeal, the Supreme Court is required to decide whether the Rwanda policy is lawful. This is a legal question which the Court has been asked to decide on the basis of the evidence and established legal principles, including the law as laid down by Parliament. The Court is not concerned with and should not be regarded as supporting or opposing any aspect of the political debate surrounding the policy.

For the asylum claims in these proceedings, the legal basis for the Rwanda policy was set out in paragraphs 345A to 345D of the Immigration Rules, made in accordance with section 3 of the Immigration Act 1971. Broadly speaking, these paragraphs permit the Home Secretary to treat an asylum claim as inadmissible if the claimant had the opportunity to apply for asylum in a safe third country but did not do so. The claimant can then be removed from the UK to any safe third country which agrees to accept them. Under paragraph 345B, a country will only qualify as a safe third country if the principle of “non-refoulement” is respected there. This principle requires that asylum seekers are not returned, directly or indirectly, 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, or they would be at real risk of torture or inhuman or degrading treatment.

On 13 April 2022, the UK and Rwandan governments entered into a Migration and Economic Development Partnership (“MEDP”), recorded in a Memorandum of Understanding and two diplomatic “Notes Verbales”. On the basis of the arrangements made and assurances given in the MEDP, the Home Secretary decided that Rwanda was a safe third country to which asylum seekers could be removed.

A number of asylum seekers, including the respondents to the Home Secretary’s appeal, challenged both the lawfulness of the Rwanda policy and the Home Secretary’s decisions to remove each particular claimant to Rwanda. The United Nations High Commissioner for Refugees (“UNHCR”), the UN Refugee Agency, intervened in the proceedings. The Divisional Court held that the Rwanda policy was, in principle, lawful. However, the way in which the Home Secretary had implemented the policy in the claimants’ individual cases was procedurally flawed. The decisions in those cases would consequently be quashed and remitted to the Home Secretary for reconsideration.

The appeal to the Court of Appeal concerned only the challenge to the lawfulness of the Rwanda policy. By a majority, the Court of Appeal held that the Rwanda policy was unlawful. This was because, on the evidence before the Divisional Court, there were substantial grounds for believing that there were real risks that asylum claims would not be properly determined by the Rwandan authorities. There were, therefore, real risks of refoulement. Accordingly, unless and until the deficiencies in the Rwandan asylum system were corrected, any removal of asylum seekers to Rwanda under the MEDP would breach section 6 of the Human Rights Act 1998.

The Court of Appeal rejected an argument that the Rwanda policy is also incompatible with retained EU law, namely Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status (“the Procedures Directive”). This is relevant because articles 25 and 27 of the Procedures Directive only permit asylum seekers to be removed to a safe third country if they have some connection to it. None of the asylum seekers in these proceedings has any connection to Rwanda.

The Home Secretary appeals to the Supreme Court against the Court of Appeal’s decision on the refoulement ground. ASM (Iraq) cross appeals against the Court of Appeal’s decision on the retained EU law ground.


The Supreme Court unanimously dismisses the Home Secretary’s appeal, and upholds the Court of Appeal’s conclusion that the Rwanda policy is unlawful. This is because there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda. Lord Reed and Lord Lloyd-Jones give a joint judgment with which the other members of the Court agree.

Reasons for the Judgment

The Supreme Court’s judgment focusses primarily on the grounds of appeal concerning: (1) refoulement, and (2) retained EU law. Some of the asylum seekers were granted permission to cross-appeal on two other grounds, but given the Court’s conclusion on the refoulement ground, it is unnecessary for the Court to determine them [17], [106].

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