AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

The Defendant adopted a policy that certain asylum seekers arriving in Country A would have their claims declared inadmissible and would be removed to Country B, where the authorities of Country B would determine those claims under a bilateral Migration and Economic Development Partnership (“the MEDP”). Between May – July 2022 the Defendant issued inadmissibility decisions and removal directions against several asylum seekers (“the Plaintiffs”). The Plaintiffs, supported by a number of interested organisations and by Entity UNHCR as intervener, sought judicial review.

The Divisional Court partially quashed individual decisions on procedural grounds but upheld the overall legality of the policy. A majority of the Court of Appeal reversed that ruling, holding the policy unlawful because there were substantial grounds for believing that removal to Country B created a real risk of refoulement. The Supreme Court (the present opinion) heard the Defendant’s appeal and the Plaintiffs’ cross-appeals.

Legal Issues Presented

1. Whether the Divisional Court applied the correct legal test when assessing the risk of refoulement under article 3 of the European Convention on Human Rights (“a real risk/substantial grounds” test derived from Soering).
2. Whether, even if the correct test was applied, the Court of Appeal was entitled to interfere with the Divisional Court’s evaluation of the evidence.
3. Whether, on the evidence, there are substantial grounds for believing that asylum seekers removed to Country B face a real risk of ill-treatment by reason of refoulement.
4. Whether articles 25 and 27 of the EU Procedures Directive remained part of domestic law as “retained EU law” and, if so, whether the MEDP infringed those provisions (the cross-appeal by one Plaintiff).

Arguments of the Parties

Defendant's Arguments

• The Divisional Court adopted the correct Soering test and its assessment of Country B’s assurances was entitled to significant deference.
• The MEDP’s detailed guarantees, monitoring mechanisms and substantial financial/reputational incentives ensured compliance by Country B, eliminating any real risk of refoulement.
• Pursuant to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, articles 25 and 27 of the Procedures Directive ceased to have effect, so incompatibility with those articles was irrelevant.

Plaintiffs' Arguments

• The Divisional Court wrongly asked whether the Defendant was “entitled” to rely on assurances instead of deciding for itself whether there were substantial grounds for a real risk.
• Extensive evidence from Entity UNHCR showed systemic defects in Country B’s asylum system, a history of refoulement, and previous non-compliance with comparable assurances (e.g., a prior agreement with Country D).
• The 2020 Act did not remove the Procedures Directive from domestic law; therefore the MEDP also violated retained EU law because it allowed removal without any personal connection to Country B.

Table of Precedents Cited

Court's Reasoning and Analysis

Issue 1 – Correct Test. The Justices concluded it was unnecessary to decide definitively whether the Divisional Court adopted the wrong test because, irrespective of that question, the appellate courts could intervene given the errors identified under Issue 2.

Issue 2 – Interference with the First-Instance Evaluation. The Divisional Court treated its task as reviewing whether the Defendant was “entitled” to rely on assurances instead of making its own risk assessment, gave excessive deference to executive views, and dismissed Entity UNHCR’s detailed evidence as carrying “no special weight.” That approach contravened authority requiring courts to undertake an independent, fact-sensitive evaluation.

Issue 3 – Existence of a Real Risk. After a fresh assessment, the Supreme Court agreed with the Court of Appeal that substantial grounds existed for believing there is a real risk of refoulement in Country B. Key factors included: (a) systemic defects in Country B’s asylum process (summary rejections, unreasoned decisions, untested and potentially ineffective appeals, scarcity of legal representation); (b) documented instances of past refoulement, including airport expulsions during and after MEDP negotiations; (c) Country B’s failure to honour similar assurances in its prior agreement with Country D; (d) indications of limited judicial independence and suppression of criticism; and (e) Country B authorities’ misunderstanding of Refugee Convention obligations.

Issue 4 – Retained EU Law. The Court held that section 1 and Schedule 1 (paragraph 6) of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 removed articles 25 and 27 of the Procedures Directive from domestic law. Accordingly, the Plaintiffs’ EU-law complaint failed, but this did not affect the outcome because the policy was already unlawful on non-refoulement grounds.

Holding and Implications

HOLDING: The Defendant’s appeal is DISMISSED; the asylum-transfer policy to Country B is UNLAWFUL. The Plaintiffs’ cross-appeal on retained EU law is also DISMISSED.

Immediate Consequence: the Defendant may not implement removals to Country B under the current MEDP framework because doing so would breach domestic statutes and article 3 obligations by exposing asylum seekers to a real risk of refoulement.

Broader Implications: while the judgment does not foreclose future transfer arrangements, it underscores that any “safe third country” designation requires demonstrably reliable procedures in practice, not merely diplomatic assurances. It also clarifies that the 2020 Act disapplies unlisted EU-derived rights even outside the free-movement field.