AAA (Syria) & Ors, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns the lawfulness of the Home Secretary's decisions to remove certain asylum seekers arriving irregularly in the United Kingdom to Rwanda under the Migration and Economic Development Partnership ("MEDP"). The appellants are ten individual asylum seekers from Syria, Iran, Iraq, Vietnam, Sudan, and Albania, and a charity representing asylum seekers. The policy aims to deter dangerous Channel crossings by relocating claimants to Rwanda, a country with which the UK has entered a Memorandum of Understanding ("MoU") and accompanying diplomatic Notes Verbales providing guarantees on asylum processing and reception conditions.

Following the announcement of the MEDP in April 2022, the Home Office declared the claims of around 47 asylum seekers inadmissible, intending to remove them to Rwanda. Judicial review proceedings were issued challenging the policy and individual decisions. Interim injunctions and interim measures from the courts and the European Court of Human Rights prevented removals. The Divisional Court dismissed the generic challenges to the policy in December 2022, and this appeal follows.

The policy and related decisions were made pursuant to Immigration Rules paragraphs 345A-345D and certification powers under Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The appellants challenge the lawfulness of these decisions on various grounds including compliance with article 3 of the European Convention on Human Rights ("ECHR"), adherence to the Refugee Convention, procedural fairness, and retained EU law.

Legal Issues Presented

1. Whether the Divisional Court applied the correct test in assessing article 3 ECHR risks, specifically whether it should have made its own assessment of substantial grounds for real risk of ill-treatment or merely reviewed the Home Secretary's decision.
2. Whether there are substantial grounds to believe that asylum seekers removed to Rwanda face a real risk of refoulement or article 3 ill-treatment due to deficiencies in the Rwandan asylum system or conditions in Rwanda.
3. Whether the Home Secretary complied with procedural duties to investigate the adequacy of Rwanda's asylum system under ECHR article 3 and domestic public law principles.
4. Whether the policy and decisions comply with the Refugee Convention, including articles 31 and 33, and whether removal to Rwanda constitutes a penalty or breaches the Convention.
5. Whether paragraphs 345A-345D of the Immigration Rules are compatible with retained EU law, specifically the Procedures Directive's connection requirement for safe third country removals.
6. Whether the certification scheme under Schedule 3 to the 2004 Act unlawfully circumvents the statutory process by creating a general presumption of Rwanda's safety without Parliamentary approval.
7. Whether the policy and decision-making process comply with data protection law and whether any breaches invalidate removal decisions.
8. Whether the procedural framework, including the seven-day period to make representations and access to legal advice, is inherently unfair and unlawful.

Arguments of the Parties

Appellants' Arguments

• The Home Secretary failed to conduct a thorough and proper assessment of Rwanda’s asylum system and safety, breaching the procedural obligations under Ilias v Hungary and Tameside.
• There are real risks of refoulement and breaches of article 3 ECHR due to systemic deficiencies in Rwanda’s asylum process and the political environment.
• The Home Secretary’s certification that Rwanda is safe under Schedule 3 to the 2004 Act was unlawful because the asylum seekers’ ECHR claims were not clearly unfounded.
• The policy breaches the Refugee Convention, including articles 31 and 33, by removing asylum seekers without proper consideration of their claims and imposing penalties for irregular entry.
• The Immigration Rules’ removal provisions conflict with retained EU law, specifically the Procedures Directive’s requirement of a connection to the safe third country.
• The certification scheme circumvents Parliamentary scrutiny by creating a general presumption of safety without statutory listing of Rwanda as safe.
• The data protection measures under the MEDP and related decisions breach UK GDPR and the Data Protection Act 2018, invalidating removal decisions.
• The seven-day period for representations is insufficient, denying claimants a fair opportunity to make effective submissions, especially given limited access to legal advice.
• Claimants should be entitled to make representations on the general safety of Rwanda, not just on individual circumstances.
• The Divisional Court erred by applying a review standard rather than making its own assessment of the article 3 risk.

Respondent's Arguments

• The Home Secretary’s decisions complied with the procedural and substantive requirements of ECHR article 3, the Refugee Convention, and domestic law.
• The MoU and Notes Verbales provide detailed and specific assurances that Rwanda will process asylum claims fairly and prevent refoulement, supported by robust monitoring mechanisms.
• The Divisional Court correctly concluded that the Home Secretary was entitled to rely on the assurances and that Rwanda is a safe third country.
• The Procedures Directive and retained EU law no longer apply to the relevant Immigration Rules provisions due to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.
• The certification scheme under Schedule 3 to the 2004 Act is lawful and does not circumvent Parliamentary procedure.
• Any breaches of data protection law do not invalidate the removal decisions, as the decisions do not depend on compliance with data protection requirements.
• The seven-day period is a reasonable baseline, with a flexible policy to grant extensions where fairness requires, and claimants had access to legal advice.
• The Divisional Court applied the correct legal test in assessing article 3 risks, reviewing the Home Secretary’s decision within the margin of appreciation.
• The policy does not unlawfully impose penalties or breach the Refugee Convention, as removal to a safe third country is lawful even if motivated by deterrence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a comprehensive and detailed evaluation of the lawfulness of the Home Secretary’s Rwanda policy and related decisions. Central to the analysis was the application of the Soering test under article 3 ECHR, which requires a determination whether there are substantial grounds for believing that removal to Rwanda would expose asylum seekers to a real risk of ill-treatment or refoulement.

It was found that the Divisional Court did not consistently apply the correct test. While it correctly stated the Soering principles, it primarily assessed whether the Home Secretary was entitled to reach her conclusions rather than making an independent assessment of the actual risk. This court therefore undertook the article 3 risk evaluation afresh, paying particular regard to the evidence of the United Nations High Commissioner for Refugees ("UNHCR") due to their expertise and role.

The court analysed the Rwandan asylum system in detail, relying heavily on the extensive evidence from the UNHCR, including witness statements highlighting systemic deficiencies such as:

• Gatekeeping by the Directorate General of Immigration and Emigration (DGIE) that often rejects or delays asylum claims without proper reasons or appeal;
• Non-specialist, part-time composition of the Refugee Status Determination Committee (RSDC) with inadequate training and lack of legal representation or interpreters for claimants;
• High rejection rates for asylum claims, particularly from nationals of Middle Eastern countries, and evidence of bias;
• Limited effectiveness and independence of appeals to the Ministry in Charge of Emergency Management (MINEMA) and the High Court, with no known appeals brought;
• Concerns about the independence of the Rwandan judiciary in politically sensitive cases.

The court acknowledged the good faith of the Rwandan Government and the detailed assurances provided in the MoU and Notes Verbales, as well as the extensive monitoring arrangements including embedded UK officials and an independent Monitoring Committee. However, it found that the practical capacity and reliability of the Rwandan asylum system to deliver fair and effective decisions had not yet been demonstrated to the required standard.

The court concluded that substantial grounds existed for believing that asylum seekers removed to Rwanda faced a real risk of refoulement and article 3 ill-treatment due to the inadequacies of the asylum system, notwithstanding the assurances and monitoring mechanisms. The risk of ill-treatment due to general conditions in Rwanda was not established.

On the Refugee Convention issues, the court rejected arguments that removal to Rwanda without individual claim determination violated the Convention or constituted a penalty, holding that removal to a safe third country is lawful if there is no real risk of refoulement. The court held that retained EU law, including the Procedures Directive’s connection requirement, was disapplied by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 to the extent inconsistent with the Immigration Rules.

The court found that the certification scheme under Schedule 3 to the 2004 Act did not unlawfully circumvent Parliamentary scrutiny, as the assessments in the Home Office’s Country Policy and Information Notes (CPINs) were general guidance rather than binding presumptions.

Regarding data protection, the court held that alleged breaches of UK GDPR and the Data Protection Act 2018 did not invalidate the removal decisions because compliance with data protection law was not integral to the validity of those decisions.

On procedural fairness, the court accepted that claimants should be allowed to make representations on matters specific to their circumstances but rejected that they had a legal right to make representations on the general safety of Rwanda. It held the seven-day period for representations was not inherently unfair given the Secretary of State’s flexible policy to grant extensions, though it recommended formalising and publishing such a policy. The court also found that access to legal advice, while important, was not always a procedural fairness requirement in these cases. The court dismissed challenges to the disclosure of provisional conclusions and the adequacy of the notice period before removal.

The court emphasized that the central legal question was whether substantial grounds existed for a real risk of article 3 breaches through removal to Rwanda, and concluded that such grounds existed, rendering the policy and related decisions unlawful.

Holding and Implications

ALLOW THE APPEAL

The court allowed the appeal on the basis that there are substantial grounds for believing that asylum seekers removed to Rwanda face real risks of refoulement and breaches of article 3 ECHR due to deficiencies in Rwanda’s asylum system. It held that the Home Secretary’s certification of Rwanda as a safe third country and the related removal decisions were unlawful.

The direct effect is that the policy to remove asylum seekers to Rwanda under the MEDP cannot lawfully be implemented until the deficiencies identified are remedied. No removals under the policy have taken place to date due to interim court orders and the legal challenges.

The court did not establish new legal precedent beyond clarifying the application of the Soering test and related principles to the facts of this case. It reaffirmed the importance of a thorough and independent assessment of risks, the weight to be given to UNHCR evidence, and the necessity of effective asylum procedures in safe third countries to prevent refoulement. The judgment underscores the critical role of procedural fairness and proper evaluation in asylum removal decisions.