Asylum Seekers, the Government’s Rwandan policy and the Domestic and European Courts

The government’s announcement that individuals seeking asylum in the United Kingdom would be sent to Rwanda to have their applications processed for entry into that country was met with almost universal condemnation. The Archbishop of Canterbury, together with the entire senior clergy, described it as “immoral and ‘‘a policy that shames Britain.’’ More recently, and possibly in breach of constitutional convention – although who obeys those these days? – Prince Charles described the policy as ‘‘appalling’’. Such sentiments are not, of course, the basis for legal challenge, which must concentrate on the legality and rationality of the policy, together with its compliance with relevant human rights law.

The policy itself will be legally tested by the High Court in July, but three weeks before that decision individuals sought an interim injunction, preventing asylum seekers being sent to Rwanda until the domestic courts ruled on the legality of the policy. On 10 June, the High Court refused that request: R (NSK (Iraq)) v Secretary of State for the Home Department. Although there was a serious issue of legality to be decided in July, Swift J held that the Home Secretary was entitled to consider the Rwandan government’s assurances about the human rights of any asylum seeker, and that the balance of convenience lay with her, who wished to continue with the policy in the meantime. The judge also considered the Secretary’s assurance, made through her legal team, that should the claimants succeed in July, the Secretary would use her best endeavours to return any individual to the United Kingdom.

On 13 June, the Court of Appeal upheld the judge’s decision and the Supreme Court was asked to grant permission to appeal. In refusing permission, Lord Reed noted that the sole appellant still facing removal claimed that the Court of Appeal erred in law in holding that the judge was entitled, when conducting his assessment of the balance of convenience, to proceed on the assumption that the Government of Rwanda would comply with the assurances provided in the memorandum of understanding. However, the Supreme Court was not persuaded that the Court of Appeal committed such an error. Although the judge did attach weight to the assurances given in that document and was entitled to do so in the light of the evidence before him, the degree of weight which he gave to that evidence was a matter for his assessment; and he had not decided the application on that ground alone. Thus, the real matter of concern to the Supreme Court was whether, if the appellant were to succeed at the full hearing, they would then be returned to this country, where it would follow that his asylum claim ought properly to be dealt with. In that regard, the Supreme Court had regard to the Home Secretary’s assurance, above, and refused permission to appeal.

However, there was to be another twist, as on 14 June, the European Court of Human Rights heard the case of KN v United Kingdom (application no. 28774/22), where the applicant sought, under Rule 39 of the Rules of Court, an urgent interim measure against the UK Government to prevent their removal to Rwanda. The European Court then indicated to the government that the applicant should not be removed until three weeks after the delivery of the final domestic decision in the ongoing judicial review proceedings. In particular, the Court had regard to the concerns identified by the United Nations High Commissioner for Refugees (UNHCR), that asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status. It also took into account the High Court’s finding that the question whether the decision to treat Rwanda as a safe third country was irrational gave rise to “serious triable issues”. Thus in light of that risk of treatment contrary to the applicant’s Convention rights, as well as the fact that Rwanda is not bound by the European Convention on Human Rights, together with the absence of any legally enforceable (my italics) mechanism for the applicant’s return to the United Kingdom should the applicant successfully challenge before the domestic courts, the Court decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to consider those issues at full trial.

The whole sorry and shameful affair raises a number of legal and moral issues, which can be outlined here.

First, the decision of the Strasbourg Court will have infuriated the government, and further fuelled its desire to break from the jurisprudence of the European Court of Human Rights. Before this decision at least, there was no plan to leave the Council of Europe, or remove the jurisdiction of the European Court of Human Rights. Nevertheless, this recent decision will be seen by some as a clear justification for amending the Human Rights Act 1998, and the current requirement (under s.2 of the Act) to take into account decisions of the Strasbourg Court when determining cases that raise Convention rights. Indeed, would this present decision, albeit an interim measure, have to be considered at the full hearing in July?

Second, why is it that three domestic courts (being bound by legislation passed by the UK Parliament to consider the case law and principles of the European Convention and Court), were satisfied that executing the policy is not only (presently) lawful, but outweighs the human rights concerns, whereas the European Court are not? The European Court considered the UN Human Rights Commissioner’s concerns in coming to its conclusion, and gave precedence to liberty and human rights in stopping the flights until the policy can be challenged. Where was that presumption of liberty in the domestic court’s rulings? Surely, the role of our courts is to presume that liberty is retained and that government actions are unlawful until proved otherwise? Instead further misery and indignity is heaped on these individuals, with the promise that they will be returned to the UK (and the chaos of its own asylum processes) should the judicial review succeed in July.

Thirdly, all domestic courts were satisfied that the Home Secretary would honour her ‘promise’ to return the individuals to the UK should the July case be decided against the government. As the European Court noted, this was not a legally effective assurance or remedy, but let us remember that this is a Home Secretary who was found to have refused to comply with a court order to return a deported person to the UK to ensure their presence as a witness in a death in detention inquiry. It is the same Home Secretary who admitted to a court that deportation and detention decisions were carried out without any legal authority, and who has misled Parliament on the meaning and reach of asylum and immigration policies. Little wonder that the Strasbourg Court failed to show any deference to the government’s assurances.

The July hearing is eagerly awaited, where we will see the extent to which our courts will question government policy when it conflicts with Convention rights and wider arguments on human dignity and civilised behaviour. In the meantime, the Strasbourg Court has, once again, come to the rescue.