Divisional Court upholds Government’s Rwanda policy – an extended look
20 December 2022
R ((AAA) Syria and Ors) v Secretary of State for the Home Department  EWHC 3230 (Admin)
On 14th April of this year, the then-Prime Minister, Boris Johnson, announced a new ‘Migration and Economic Development Partnership’ between the UK Government and the Government of Rwanda to enable the removal of certain persons to who enter the UK to claim asylum (particularly those who arrive in small boats crossing the English Channel) to Rwanda, where – if their claims succeeded – they would be resettled.
Yesterday, the Divisional Court (Lewis LJ and Swift J) held that, in principle, the relocation of asylum seekers to Rwanda was consistent with the Refugee Convention and other legal obligations on the government, including those imposed by the Human Rights Act 1998. However, the Court also held that Home Secretary had failed to properly consider the circumstances of eight individual claimants to decide whether there was anything which meant that their asylum claim should be determined in the UK or they should not be relocated to Rwanda. Therefore, the decisions in those cases were set aside and referred back to the Home Secretary for her to consider afresh.
The Court’s judgment is detailed and addresses a number of issues. In this post, the focus will be on the general challenge made to removal to Rwanda in principle and what can be expected in the (likely) event that this aspect of the case is appealed further.
Removal to Rwanda
The relevant set of decisions were made by the Home Secretary under powers set out in the Immigration Rules to treat an asylum claim as “inadmissible” in circumstances which include (but are not limited to) where “the applicant could enjoy sufficient protection in a safe third country, including benefiting from the principle of non-refoulement”, because “they could have made an application for protection to that country but did not do so and there were no exceptional circumstances preventing such an application being made” (see para 345A of the Immigration Rules).
As to this, a “safe third country” for a particular applicant will be one in which the applicant’s life and liberty “will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country”, “the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention”, “the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman, or degrading treatment as laid down in international law, is respected in that country” and “the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country” (see para 345B of the Rules).
If an application is treated as inadmissible, the Home Secretary “will attempt to remove the applicant” to a safe third country (see para 345C of the Rules). The Home Secretary will also exercise related powers of certification to prevent an appeal being brought on asylum or human rights grounds (under the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and the Nationality, Immigration and Asylum Act 2002).
The Court noted that the Claimants’ primary submission was that “the Home Secretary’s decisions under paragraph 345C of the Immigration Rules to remove the individual Claimants to Rwanda were unlawful because the conclusion that Rwanda is a “safe third country” (as defined in paragraph 345B of the Rules) is legally flawed” (para 43). This submission was put in several ways. The main contention was that this conclusion amounted to a breach of Article 3 of the ECHR, as the asylum claims would not be effectively determined in Rwanda such that there was a risk that they would be refouled directly or indirectly to the country where they experienced treatment contrary to the Refugee Convention. It was also argued that the conclusion rested on material errors of fact or a failure to comply with the obligation in Tameside v Secretary of State for Education and Science  AC 1014 (to ensure the decision rested on a sufficient factual basis by taking reasonable steps to obtain relevant information), and/or was an irrational conclusion, and/or was part of a policy which was unlawful in the sense explained in Gillick v West Norfolk and Wisbech AHA  AC 997 (in that it positively authorised or approved removals that would be in breach of Article 3).
To decide this overarching issue, an important pair of questions arose concerning whether the evidence provided, including the assurances provided by the Rwandan Government in the form of a Memorandum of Understanding made on 13th April 2022 which was supplemented by two Notes Verbales (a form of diplomatic communication): (i) meant that the Home Secretary had satisfied the obligation under Article 3 “to conduct a thorough examination of the relevant conditions in the third country concerned and, in particular the accessibility and reliability of its asylum system” (per the Strasbourg Court in Ilias and Ahmed v Hungary (2020) 71 EHRR 6 at para 139); and (ii) constituted sufficient assurance that persons removed to Rwanda would not be put at real risk of suffering ill-treatment contrary to Article 3 (per the Strasbourg Court in Othman v United Kingdom (2012) 55 EHRR 1 at paras 188 to 189).
The Rwandan assurances
The Memorandum of Understanding includes obligations on the Rwandan Government to ensure that “[a]t all times it will treat each Relocated Individual, and process their claim for asylum, in accordance with the Refugee Convention, Rwandan immigration laws and international and Rwandan standards, including under international and Rwandan human rights law, and including but not limited to ensuring their protection from inhuman and degrading treatment and refoulement” (para 9.1.1), that each individual will have “access to an interpreter and to procedural or legal assistance at every stage of their asylum claim, including if they wish to appeal a decision made on their case” (para 9.1.2) and that each individual will have access “to independent and impartial due process of appeal in accordance with Rwandan laws” (para 9.1.3).
Further, for those not recognised as refugees, there is an obligation to “consider whether the Relocated Individual has another humanitarian protection need, such that return to their country of origin would result in a real risk of their being subject to inhuman, degrading treatment or torture or a real risk to their life” and, if so, to “provide treatment consistent with that offered to those as refugees” (para 10.2).
In addition, a Joint Committee is to be formed to monitor and review the implementation of the agreement and make non-binding recommendations (para 21.2) and a Monitoring Committee is to be established to monitor and report on the entire relocation process (para 15).
Further, one of the Notes Verbales contain a range of further commitments, including that decisions will be taken within a reasonable time by decision-makers who are appropriately trained and who have appropriate support of officials or “external experts if necessary” (para 4.2), claimants will be appropriately interviewed so as to establish their claims (para 4.3), interpretation services will be provided and a record will be made of the interview (para 4.4), decisions will be recorded and supported by reasons (para 4.7 and 4.9), appeal rights will be provided, including to the Rwandan High Court by way of “full re-examination” (paras 5.4 and 5.5) and claimants will be permitted access to legal advice at each stage and, for appeals to the High Court, will be provided with legal assistance free of charge (para 8).
On this basis, on 9th May 2022 the Home published four documents comprising her “Review of Asylum Processing” in Rwanda. These were relied on for the purposes of any decision that Rwanda is a safe third country and may be found here.
The Claimants’ concerns
The Claimants placed substantial reliance on the evidence of the UN High Commissioner for Refugees’ Senior Legal Officer in the United Kingdom, which raised a number of concerns as to content and reliability of these assurances.
These included (but were not limited to): (i) concerns regarding at least five “instances where the Rwandan authorities have refused to register claims for asylum” of persons arriving at Kigali Airport; (ii) a concern that the Rwandan Directorate General of Immigration and Emigration “may discriminate against asylum claimants who are lesbian, gay, bisexual, trans-sexual or inter-sex” (with specific concern having been raised about two such cases); (iii) concerns about the expertise of decision-makers and the fairness of hearings before the Directorate General; (iv) scepticism about the efficacy of appeal rights in view of the lack of evidence of appeals having been actually filed with or heard by the High Court; (v) a concern that the definition of “political opinion” in Article 7 of Rwanda’s 2014 Law on Asylum “does not cover the possibility of protection against persecution on grounds of imputed political opinion or from the risk of ill treatment by non-state actors”; (vi) concerns about whether important aspects of asylum law would be “properly understood and properly applied”, including whether decision-makers would understand that “asylum claims should not be denied on the premise that the claimant could hide a characteristic protected under the Refugee Convention, such as his political opinion or sexual orientation”; (vii) concerns that the Rwandan system will not be able to cope with the volume of claims generated; and (vii) concern about whether claimants will have sufficient access to legal assistance and interpretation services (see para 53).
In addition, the UNHCR gave evidence that after a similar agreement was made between the State of Israel and Rwanda in 2013, “those who were transferred were not provided with support”, it appeared that “many who were transferred soon left Rwanda” and “some who were transferred to Rwanda were then removed by the Rwandan authorities to Uganda” (para 67). Further, it was stated through counsel at the hearing that “the UNHCR’s opinion was that, in the light of history of refoulment and of defects in its asylum system, Rwanda could not be relied on to comply with its obligations under that Convention and, by extension, would fail to comply with the obligations it had assumed under the MOU and Notes Verbales” (para 69).
The Claimants also raised further concerns that if a person removed to Rwanda were to be critical of their conditions or treatment afforded to them, “the response might be an extreme one”, particularly in view of what took place in 2018 when refugees from neighbouring countries at the Kiziba refugee camp protested at the conditions in the camp and it was reported (including by Human Rights Watch) that “the police who entered the camp in response to the protests used excessive force”, “fired on the refugees” and “some were killed” (paras 73). In this regard, the general limits in Rwanda on the freedom to express a political opinion critical of the Rwandan authorities were also noted (para 73).
The Court’s conclusion
The Court accepted that “the Home Secretary did comply with the obligations identified in Ilias” (para 59) and found that there was sufficient compliance with the Tameside duty (para 61). Further, it was held that the Government was entitled to rely on the assurances that had been made (para 64) and that the Court could “go behind” the opinion of the Government (expressed through the written evidence of the Director, Africa (East and Central) at the Foreign, Commonwealth and Development Office) that Rwanda will honour its obligations “only if there were compelling evidence to the contrary”, which was not found to exist in this case (para 66).
The core reasons for these conclusions were as follows:
(i) The 9th May 2022 assessment documents were considered to be a “thorough examination” of “all relevant generally available information” of the type envisaged by the European Court of Human Rights in Ilias (para 59).
(ii) On their face, the obligations arising from the Memorandum of Understanding and the Notes Verbales “address all significant concerns raised in the UNHCR’s evidence” (para 62).
(iii) It was considered that the UK Government was “entitled to rely on the assurances” on the basis that the UK and Rwanda have a “well-established relationship” which was “kept under review”, including having been suspended at times in the past, which the Court considered meant that “the Rwandan government has reason to know that the United Kingdom government places importance on Rwanda’s compliance in good faith with the terms on which the relationship is conducted” (para 64).
(iv) The terms of the Memorandum of Understanding and the Notes Verbales were considered to be “specific and detailed” and to set out “clear” obligations, which would be supported by “significant resources” to be provided under the Migration and Economic Development Partnership and by relevant monitoring mechanisms (para 65).
(v) As to the agreement between Israel and Rwanda, the Court stated that whilst it appeared that “with the agreement of the Rwandan government, the Israeli government offered asylum seekers in Israel a choice between detention in Israel or removal to Rwanda together with a payment of $3,500 and the opportunity to make an asylum claim in Rwanda” (para 67), “[w]e have not been provided with definitive evidence on the nature and terms of that agreement, but we do not consider that is critical for our purposes” (para 68). As to this, there was “no evidence” that the UK Government “sought to investigate either the terms of the Rwanda/Israel agreement or the way it had worked in practice” (para 68). However, it was found that it was “permissible” for the merits of the UK/Rwanda arrangements to be assessed by the UK Government “on their own terms, not by way of comparison with the Rwanda/Israel agreement” (para 68).
(vi) It was considered to be “surprising” that the UNHCR’s doubts that Rwanda could be relied on to comply with its assurances were stated through counsel at the hearing rather than in any of the witness statements and that it did not sit particularly easily with the UNHCR’s previously published views (including in a July 2020 Universal Periodic Review document), such that the Home Secretary’s contrary opinion was not found to be legally flawed (paras 70-71).
(vii) It was not considered that any direct inference could be drawn from the events at Kiziba refugee camp in 2018, as it was held that the circumstances that led to those protests “are unlikely to be repeated for any person transferred to Rwanda under the MEDP”, in view of the obligations set out in the Memorandum of Understanding and the Notes Verbales, which included providing for a mechanism to be established to allow complaints about accommodation and support to be raised and addressed (para 74).
(viii) Despite the wider submission concerning the way that the Rwandan authorities might respond to expressions of opinion adverse to them, or acts of political protest, it was held that there was “no suggestion that any of the individual Claimants” (even one who stated that he had been politically active in Iran) “holds any political or other opinion that is adverse to the Rwandan authorities” and that, even if there were such evidence, a proper application of paragraph 345B (i) of the Immigration Rules “would be sufficient to ensure that were a person to face a real risk of article 3 ill-treatment, he would not be transferred” (paras 75-76). Further, as to the contention that, following removal to Rwanda, it was possible that one or more of those transferred might come to hold opinions critical of the Rwandan authorities, the Court stated that “we do not consider there is any force in this submission at all”, as it was considered to be “speculative”. In any event, it was expected that the treatment to be afforded to those transferred would be kept under the review by the Monitoring Committee and the Joint Committee and “the advantages that accrue to the Rwandan authorities from the MEDP provide a real incentive against any mis-treatment (whether or not reaching the standard of article 3 ill-treatment) of any transferred person” (para 77).
It has been noted by respected commentators that a challenge to a general policy will always be difficult and suggested that even if (as seems likely) this aspect of the case is appealed further, it is unlikely that an appeal by the Claimants will ultimately be successful (see e.g. here and here).
However, I would suggest that there are aspects of the Divisional Court’s judgment which warrant careful examination.
LGBTQ+ individuals and political activists
The reports concerning the treatment of LGBTQ+ individuals and persons who engage in political activism in Rwanda seem to me to raise real questions regarding the assurances made by the Rwanda Government.
It is a principle of UK asylum law that if an individual claiming asylum would, if returned to their country of origin, seek to ‘live discreetly’ due to a well-founded fear of persecution if they were to live openly, then their claim for asylum should be upheld (per HJ (Iran) v Secretary of State for the Home Department  UKSC 31, as affirmed in LC (Albania) v Secretary of State for the Home Department  EWCA Civ 351 at para 53). This is because, as stated by Sir John Dyson (a former Supreme Court Justice and Master of the Rolls):
If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.HJ (Iran), para 110
For this principle properly to be applied — not only in form but in substance — by decision-maker(s) assessing an asylum claim, I would suggest that it is likely to require an underlying ethical commitment by the decision-maker(s) to the principle that a person’s sexual, gender and/or political identity constitutes a very important part of their personhood and that it would be unconscionable for them to be required to conceal it to try to avoid persecution in their country of origin.
Whilst, unlike in neighbouring Uganda, Tanzania and Burundi, same-sex activity is not illegal in Rwanda, the Home Office’s own Review of asylum processing Rwanda: country information on general human rights (Version 1.0) (May 2022) (one of the May 2022 documents relied on by the Home Secretary in his case) states that in a meeting between the Home Office and UNHCR on 21st March 2022, concern was raised that “LGBT asylum seekers have not been able to register their claims”, they “have to report to the local authorities and are told by the most junior immigration staff that Rwanda is not the place for them, or Rwanda does not deal with such issues” and “are given immediate verbal rejection” (para 9.5.1).
Further, the US State Department’s Rwanda 2021 Human Rights Report states that LGBTQ+ organizations “reported barriers to open participation in the political process in that candidates and government officials were unwilling to engage openly on LGBTQI+ concerns” (p. 29), advocates “reported law enforcement officials routinely abused LGBTQI+ persons in transit centers, with transgender persons targeted for particularly severe hate speech and violence” and the Government “did not report investigating these cases” (p. 40). In addition, the law does not explicitly prohibit discrimination against LGBTQ+ persons in a number of areas and “LGBTQI+ persons reported societal discrimination and abuse, including problems officially registering NGOs” (pp. 40-41).
Moreover, Human Rights Watch reports that “in practice, lesbian, gay, bisexual, and transgender (LGBT) people have reported facing stigma” and that, in 2021, nine transgender or gay people were arbitrarily detained by the authorities at Gikondo transit center in Kigali, where “police officers or guards accused them of being homeless, thieves, or delinquents and held them in a room reserved for “delinquent” men”.
This evidence raises a question about the reliability of the assurances given, particularly concerning whether there are sufficiently well-established ethical norms in Rwanda regarding the moral right of LGBTQ+ individuals to manifest their identity for it to be safe to conclude that asylum claims that they may make (including on the basis that they would conceal their identity to avoid persecution) will be properly determined. This issue was raised explicitly in the evidence and submissions relied on by the Claimants (see para 53 (1) of the judgment), but it did not receive specific consideration by the Divisional Court.
Further, the evidence noted by the Court (including from a US State Department report of 2020) concerning the detention, torture and ill-treatment of political opponents of the Rwandan Government (see para 77) and the treatment of protestors at the Kiziba refugee camp in 2018 (see para 74) also raises a question of whether political activists claiming asylum in Rwanda will have their claims examined through a lens which properly affirms the moral importance of having the freedom to criticise one’s own government.
Therefore, the questions of whether the UK Government undertook a sufficiently thorough examination of relevant conditions in Rwanda (per Ilias, para 139) and/or whether the assurances provided are sufficiently specific or reliable (per Othman, para 189) in relation to the potential asylum claims of LGBTQ+ individuals and/or political activists may well be a matter worthy of further consideration.
The previous arrangements between Rwanda and Israel
The Court dealt relatively speedily with the issue raised concerning previous similar arrangements between Rwanda and Israel and their outcome. However, I would suggest that this is a potentially very concerning precedent, which may well undermine the reliability of the assurances that were made by the Rwandan Government. There was no evidence of any specific investigation by the UK Government of the terms or outcome of the Israel/Rwanda agreement, despite its apparent similarities to the UK/Rwanda agreement. The lack of any such investigation, which could have been undertaken in order to determine whether potential doubts concerning the reliability of assurances by the Rwandan government were well-founded and whether these were dispelled under the new arrangements, may well indicate that there is real doubt about whether the UK Government undertook a sufficiently thorough examination and/or whether the assurances provided by Rwanda are sufficiently specific and reliable. It may be that this question will be considered by the higher courts.
The commentators’ prediction that the Claimants are unlikely to succeed on the overall policy challenge may be proven right. But it will be very interesting to see how this case is assessed in the (likely) event that it is examined by the higher courts.
Jonathan Metzer is a barrister at 1 Crown Office Row and a member of the Editorial Team at the UK Human Rights Blog.
Members of 1 Crown Office Row are instructed in the proceedings: Angus McCullough KC as leading counsel for UNHCR, and Natasha Barnes as junior counsel for the Home Secretary; neither was involved in the drafting of this post.