AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42

Asylum seekers challenged the UK Government's Rwanda policy, which proposed removing them to Rwanda for asylum processing. The Supreme Court held the policy unlawful, finding substantial grounds to believe asylum seekers faced real risk of refoulement due to deficiencies in Rwanda's asylum system, despite assurances given under the Migration and Economic Development Partnership.

Facts

The Secretary of State for the Home Department implemented a policy under which certain asylum seekers arriving in the United Kingdom would not have their claims considered domestically but would instead be removed to Rwanda under the Migration and Economic Development Partnership (MEDP). The MEDP comprised a Memorandum of Understanding and diplomatic Notes Verbales between the UK and Rwandan governments, containing assurances that asylum claims would be processed in accordance with the Refugee Convention and international human rights standards.

Several asylum seekers challenged the policy through judicial review proceedings. The United Nations High Commissioner for Refugees (UNHCR) intervened, providing extensive evidence regarding deficiencies in Rwanda’s asylum system, past instances of refoulement, and Rwanda’s failure to comply with similar assurances given to Israel under a previous arrangement.

Issues

Primary Issues

1. Whether the Divisional Court applied the correct legal test when assessing the risk of refoulement.

2. Whether the Court of Appeal was entitled to interfere with the Divisional Court’s conclusion.

3. Whether there were substantial grounds for believing asylum seekers faced a real risk of ill-treatment by reason of refoulement following removal to Rwanda.

4. Whether articles 25 and 27 of the EU Procedures Directive continued to have effect in domestic law as retained EU law.

Judgment

The Legal Test

The Supreme Court confirmed that under the Soering test, the court must itself assess whether there are substantial grounds for believing removal would expose asylum seekers to a real risk of ill-treatment through refoulement. The court stated:

The question whether the Secretary of State was entitled to reach a particular conclusion is a different question from whether the court assesses that there are in fact substantial grounds for thinking that there is a real risk of refoulement.

Treatment of Evidence

The Court held that the Divisional Court erred in its approach to evidence by failing to engage properly with UNHCR’s evidence. Lord Reed and Lord Lloyd-Jones stated:

The Divisional Court did not follow this approach in its consideration of the evidence… The Divisional Court had before it evidence that there were serious and systemic defects in Rwanda’s procedures and institutions for processing asylum claims; that it had a history of acting in breach of the principle of non-refoulement… and that it had, in the recent past, failed to abide by similar assurances which it had given to another foreign government.

Regarding UNHCR’s evidence, the Court emphasised:

particular importance should have been attached to the evidence of UNHCR in the present case… its evidence on significant matters of fact is essentially uncontradicted by any cogent evidence to the contrary.

Assessment of Rwanda’s Asylum System

The Court identified serious deficiencies including: summary rejections by the DGIE without written reasons; perfunctory decision-making by the RSDC; 100% rejection rates for nationals from known conflict zones; instances of refoulement during and after MEDP negotiations; and an untested right of appeal to courts whose independence was questionable.

The Court concluded:

As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.

Retained EU Law

The Court dismissed the cross-appeal regarding retained EU law, holding that the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 disapplied the relevant provisions of the Procedures Directive. References to ‘immigration’ in that Act were broad enough to include asylum matters.

Implications

This judgment significantly impacts UK immigration policy by establishing that governmental assurances from receiving countries must be assessed against evidence of actual practice, including past compliance with similar undertakings. The decision reinforces the court’s duty to make independent assessments of refoulement risk rather than deferring to executive evaluations. It confirms the particular weight to be accorded to UNHCR evidence given its supervisory role under the Refugee Convention. The judgment does not permanently preclude the Rwanda policy but requires demonstrable systemic improvements before removals could lawfully proceed.

Verdict: The Secretary of State’s appeal was dismissed. The Court of Appeal’s decision that the Rwanda policy was unlawful was upheld. The cross-appeal by ASM regarding retained EU law was also dismissed.

Source: AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42