29 June 2023

Rwanda appeal decision ‘did not support or oppose any political view’ – judge

29 June 2023

A Court of Appeal ruling which found that Government plans to deport asylum seekers to Rwanda are unlawful was determined “on the basis of evidence” and the judgment did not support or oppose “any political view”, one of the appeal judges said.

In a 161-page judgment on Thursday, Sir Geoffrey Vos, supported by Lord Justice Underhill, found there were “substantial grounds” to think that asylum seekers sent to Rwanda faced “real risks” of torture or inhuman treatment, or that their claims for asylum would not be properly determined in the east African nation.

The ruling overturned the High Court’s finding that the east African nation could be considered a “safe third country” for asylum seekers.

However, the Lord Chief Justice Lord Burnett – who heard the appeal with the other two judges in April – disagreed, saying he would dismiss the challenge.

In the judgment, Sir Geoffrey said the court needed to look at the situation in Rwanda for asylum seekers alongside the assurances given by the authorities and the agreement between the two countries, the UK-Rwanda Migration and Economic Development Partnership (MEDP).

He described the MEDP policy as “a politically sensitive one which has attracted significant public and media attention”.

Sir Geoffrey continued: “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 judge noted it was accepted the UK Government has “huge experience of diplomatic relations” with the Rwandan authorities.

He also said that Home Office lawyers had argued that “in the light of the detailed guarantees and assurances in the MEDP and the longstanding relationship with Rwanda and its financial and other incentives to perform on its obligations, what happened in the past was of limited, if any, real significance”.

However, Sir Geoffrey disagreed, finding: “I do not accept that the past and the present can either be ignored or side-lined as the Home Office suggests.”

“The likelihood of promises being performed must, anyway in part, be judged by reference to what has happened in the past and the capacity and capability of the entity making the promises to keep them,” the judge added.

In his decision, Sir Geoffrey referred to evidence from the UN refugee agency, the UNHCR, who said there were several deficiencies in the legal rights of asylum seekers in Rwanda.

Sir Geoffrey said the UK Government acknowledges that Rwanda is “a one-party state which reacts unfavourably to dissent”, adding: “It is not an answer to say that Rwanda will have accepted the people sent under the MEDP, because the advanced information they will have about them will be limited and they may form adverse political opinions once there.”

Lord Justice Underhill, who largely supported Sir Geoffrey’s conclusions, said the Court of Appeal was “concerned with the risk to the group as a whole to whom the asylum policy is intended to be applied”.

The judge said there was “evidence of a culture of, at best, insufficient appreciation by Directorate General of Immigration and Emigration officials of Rwanda’s obligations under the refugee convention, and at worst a deliberate disregard for those obligations”.

Lord Justice Underhill said the UNHCR had alleged that the Rwandan authorities were biased against asylum seekers from the Middle East and Afghanistan, calling the figures “statistically frail”.

He continued: “But I do not believe they can be disregarded, particularly when taken with its evidence about the views expressed by senior Government of Rwanda officials that they should have sought asylum nearer to home.”

The appeal judge said there was no evidence that showed the Rwandan government has entered into the agreements “in bad faith”.

He continued: “There is no reason to suppose that it does not wish to ensure that relocated individuals have their asylum claims determined fairly and effectively.

“But aspiration and reality do not necessarily coincide.”

“I have reached the conclusion that the Rwandan system for refugee status determination was not, as at the relevant date, reliably fair and effective,” Lord Justice Underhill concluded.

However, in his dissenting judgment, Lord Burnett said the High Court had not considered whether it was “safe” for “substantial” numbers of people to be immediately sent to Rwanda.

He continued: “Similarly, the voluminous papers in this case identify hypothetical special problems it is said that some groups of people would face.

“But we are not considering whether it would be ‘safe’ for every conceivable type of person to be sent to Rwanda.”

He also said: “In much of the political hyperbole which surrounded the announcement of the Rwanda policy there was talk of Rwanda, within a few years, being a destination for thousands of asylum seekers who arrived irregularly in the United Kingdom.”

However, Lord Burnett said that the High Court was told that the physical capacity for housing asylum seekers in Rwanda was limited to 100.

The most senior judge in England and Wales later said that there would be both formal and “informal” monitoring of anyone who was deported to Rwanda.

As well as the formal monitoring described in the agreement itself and arrangements by the British High Commission, Lord Burnett continued: “With the assistance of lawyers in England, those unwilling to be removed to Rwanda would have been engaged in resisting on all available grounds.

“In referring to ‘informal’ monitoring I have in mind the reality that anyone removed to Rwanda, with their internet connected mobile phone, will be in a strong position to raise any personal concerns that they are not being treated in accordance with the agreement.”

The judge also said that while there was “certainly evidence of poor practice” in the Rwandan asylum system, “there will, no doubt, be changes in respect of those considered under the agreement with the United Kingdom”.

“But the question is whether the system as a whole can be relied upon to deliver appropriate outcomes,” he added.

Lord Burnett concluded that the people bringing the appeal “fall short” in proving there are substantial grounds to believe there is a “real risk” they would face torture or inhuman treatment in Rwanda.

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