24 April 2023

Judges showed ‘deference’ to Home Office view of Rwanda’s promises, court told

24 April 2023

Judges showed “excessive deference” to the Home Office’s view towards promises by the Rwandan government that asylum seekers there would be protected from ill-treatment, the Court of Appeal has heard.

In December, two judges at the High Court dismissed a series of legal bids, ruling the Government’s plan to send asylum seekers to the east African nation is lawful.

Lord Justice Lewis and Mr Justice Swift gave the go-ahead to several individual asylum seekers and the charity Asylum Aid to challenge their decision.

At the start of a four-day hearing on Monday, Raza Husain KC, for six individual asylum seekers, told the Court of Appeal in London there were “serious evidential gaps and deficiencies” that the judges at the High Court had not properly examined.

The Home Office previously argued that a memorandum of understanding agreed between the two countries provides assurances that ensure everyone sent there will have a “safe and effective” refugee status determination procedure.

However, Mr Husain described Rwanda as “a highly autocratic repressive state” that “imprisons, tortures and murders those it considers to be its opponents”.

In written submissions, Mr Husain said that the judges at the High Court were required to decide whether the assurances made by the Rwandan authorities “provide a sufficient guarantee to protect relocated asylum-seekers” from a risk of torture or inhuman treatment.

The barrister continued: “The court showed excessive deference to the Home Office’s own assessment of those assurances, by proceeding on the basis that it should not ‘go behind’ that assessment without ‘compelling evidence to the contrary’.

“By adopting this approach, the court failed to scrutinise the Home Office’s view in the manner required.”

Mr Husain later said that material provided by the Rwandan authorities “lacked credibility, consisting of blanket denials and clear contradictions. It was partisan”.

He continued: “All these features should have been, but were not, considered by the court in assessing the evidence.”

The hearing, attended by at least 30 barristers, was later told the judges at the High Court did not properly consider a similar arrangement between Israel and Rwanda, which operated between 2013 and 2018.

Mr Husain said the Home Office could not thoroughly assess the risk of refoulement – that people would be expelled or returned to a country where their safety might be in danger – without investigating the deal with Israel.

Lord Pannick KC, for the Home Office, said in written submissions that the Rwandan government has “indicated a clear willingness to co-operate with international monitoring mechanisms” and that there are “reciprocal obligations with strong incentives for compliance”.

The crossbench peer, who is expected to make oral submissions later this week, said some evidence about whether the Rwandan government will comply with its obligations came from the Foreign, Commonwealth and Development Office “based on experience of bilateral relations extending over almost 25 years”.

He continued: “It provided a clear and compelling set of reasons why the UK Government is confident the Rwandan authorities will comply with the assurances.

“These are matters falling squarely within the institutional competence of the UK Government.

“The divisional court’s observation that compelling evidence would be required to displace the Government’s assessment of Rwanda’s likely compliance was correct.”

Lord Pannick later said when assessing whether a country will keep to the terms of an international deal, courts should “accord appropriate weight to the judgment of (the Government) as to the likelihood of compliance, including the opinion of those directly involved in concluding the agreement”.

“The divisional court did not show ‘excessive deference’ to the Home Office’s assessment. On the contrary, the approach … was correct,” he added.

Lord Pannick also said the previous arrangement between Israel and Rwanda “was of no relevance” to the UK’s arrangements.

He continued in written submissions: “The financial arrangements under the Israel-Rwanda agreement would appear to have been very different.

“Neither the UNHCR, nor the appellants, nor the Home Office are privy to the detail of the Israel-Rwanda agreement in 2013.

“The divisional court was correct to focus on the lawfulness of the arrangements being challenged here.”

The Rwanda deportation plan, along with the Illegal Migration Bill — which is due to return to the Commons on Wednesday — is part of Prime Minister Rishi Sunak’s pledge to stop migrants crossing the English Channel in small boats.

In April last year, then-home secretary Priti Patel signed an agreement with Rwanda for it to receive migrants deemed by the UK to have arrived “illegally”, and therefore inadmissible under new immigration rules.

The first deportation flight – due to take off on June 14 – was then grounded amid a series of objections against individual removals and the policy as a whole.

Last month, Mr Sunak told the Commons Liaison Committee that flights to the east African nation would leave only once the legal challenges had finished.

The hearing before the Lord Chief Justice Lord Burnett, Sir Geoffrey Vos and Lord Justice Underhill is expected to conclude on Thursday with a decision at a later date.

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