Thursday's Court of Appeal ruling was the culmination of a year-long legal battle. Photo: Tom Pilgrim/PA
Deportation flights to Rwanda were blocked by the Court of Appeal due to «weaknesses» in its asylum system that made it unsafe and therefore illegal to send migrants to the East African state, court documents show.
In a separate decision, two of the three judges ruled that there was a real risk that asylum seekers sent to Rwanda would be returned to their country, where they would face persecution or other inhuman treatment in violation of Article 3 of the European Convention. on human rights.
However, Lord Burnett, Lord Chief Justice, disagreed with Sir Geoffrey Vos, Master of the Lists, and Lord Justice Underhill, arguing that there were sufficient guarantees in Rwanda to ensure that this was a safe country to which migrants could be sent for asylum.
The decision also dismissed all other grounds of appeal, stating that the principle of sending migrants who have entered the UK illegally to a third country for asylum does not violate international law and the way the UK handles migrants is fair.
Lord Burnett's argument that Rwanda has no agreements to return displaced asylum seekers to any of the countries they came from will be central to the government's appeal to the Supreme Court in which it will seek to overturn the Court of Appeal decision.
The origins of the case
Thursday's Court of Appeal decision was the culmination of a year-long trial that began last June year, when a single judge behind closed doors issued a so-called rule 39 injunction blocking the first deportation flight to Rwanda at 11 a.m.
The overnight decision suspended flights until British courts rule on the legality of the Rwanda policy, a key point of Rishi Sunak's illegal migration bill.
December 19, the High Court ruled in favor of the policy, but that decision was appealed by 10 asylum seekers and the charity Asylum Aid, leading to a four-day hearing before the Court of Appeal in April. jpg» />Why Two Judges Declared Rwanda's Plan Illegal
The Court of Appeal ruled by majority that Rwanda's plan was illegal because it was not a safe enough country to deal with asylum seekers' applications.
This was because the Rwandan authorities were not yet able to reliably separate genuine refugees from unsubstantiated asylum claims, which increased the risk that genuine refugees would be returned to their countries where they could face persecution. Afghans and Syrians, for example, in Rwanda currently have a 100 per cent refusal rate.
LJ Underhill referred to the applicants' lack of access to lawyers in Rwanda, low-skilled and inexperienced asylum professionals, an untested appeals system; and the inability of NGOs to offer legal advice. “The Rwandan system for determining refugee status at the relevant date was not reliably fair and effective,” he said.
Sir Geoffrey concluded that «on the basis of the evidence presented to this court, there was simply not enough evidence.» to demonstrate that officials will be properly trained to make sound and informed decisions.”
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Assurances given to the UK government by Rwanda were considered insufficient, the judges said, and not sufficiently verified by British civil servants.
“Perhaps due to the pressure of the schedule they had to work on, I believe that the officials in question were too willing to accept assurances that were vague or unsubstantiated or whose details were not examined,” Lord Justice Underhill said. .
In a summary of the verdict, the judges concluded as follows: “As a result, the High Court’s decision that Rwanda was a safe third country is overturned and that until the shortcomings in its asylum process are corrected, the expulsion of asylum seekers, to Rwanda would be illegal.»
Suella Braverman, Minister of the Interior, visited Rwanda earlier this year to review a house construction project for asylum seekers. Photo: Stephan Russo/Pennsylvania. Why Lord Burnett didn't agree
Lord Burnett argued that the procedures put in place in Rwanda and the Rwandan Government's assurances were «sufficient to ensure that there was 'no real risk' that asylum seekers would be erroneously returned to countries for persecution or other inhuman treatment.
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He concluded that the chances of rejected asylum seekers returning to their countries of origin were low, not least because Rwanda had no valid agreements with any of the countries in question.
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“Furthermore, the extensive monitoring mechanisms, formal and informal, of all those sent to Rwanda and their asylum claims once there provide powerful protection,” he said.
“Accepted the measures provide sufficient assurance in a context where both governments are determined to make the agreement work and are seen to do so.”
Why deportation is legal
All other grounds for asylum-seekers to appeal against Rwanda's plan were unanimously rejected by the Court of Appeal.
Most importantly, the court ruled that Article 31 of the Refugee Convention does not “in principle” prevent a government from expelling asylum-seekers.
Article 31 states that States should not impose penalties on refugees who enter a country “directly from their home country to apply for asylum. This is central to the government's defense that Channel-crossing migrants did not enter the UK «directly» but entered illegally, passing through safe countries where they could seek asylum.
Reports of illegal arrivals
The Court also ruled that due to Brexit, the UK is no longer subject to EU law, which allowed the removal of asylum seekers to a safe third country only if they had anything to do with her.
It also wasn't wrong or illegal, as asylum seekers claim, in that the government issued new guidance to interior ministry officials designating countries as «safe», as was the case in Rwanda.
The court also rejected Asylum Aid's claims that the short timeframes for processing migrants for deportation are «inherently unfair.»
What's next?
The government must file a petition for leave to appeal to the Supreme Court by next Thursday, July 6th It will be considered by the Court of Appeal, but commentators expect it to be granted given the split among the judges of the Court of Appeal and the dismissal on all other grounds.
However, the Supreme Court is unlikely to hear it before the fall, potentially delaying the first deportation flights until Christmas or New Year's Day.
Senior judicial sources said the case in July would be «somewhat of a drag» before the courts will be closed for August and September.
They will reopen on October 2, meaning that even a post-tracked Supreme Court ruling may not come until mid-to-late November. Even if the government wins, challengers can still appeal to the European Court of Human Rights.
Lord Burnett: voice of disagreement with Rwanda
Lord Burnett, the youngest Lord Chief Justice in six decades, has played a central role. in leading the criminal justice system during the Covid pandemic and its aftermath.
In his six years in office, the 65-year-old has made numerous public statements calling for reform of obsolete or inefficient aspects of the UK's law.
While the courts have continued to operate during the Covid crisis, including the use of Nightingale's five temporary quarters, Lord Burnett said the restrictions caused «profoundly disruptive» delays in the wider system, suggesting that the number of juries should be smaller to clear the backlog.< /p>
In his 2021 annual report, he insisted that the only way to reduce waiting times is to make the most of the Crown Courts for the foreseeable future.
He warned ministers that «adequately resourced courts and tribunals» was «vital to the future», adding: «Too little attention has been given to the value that the rule of law, a properly functioning justice system and courts bring to the general prosperity of a nation.»< /p>
Lord Burnett also called for broader reforms of the technology used by the judiciary, as he sought to «use the clunky old systems that, frankly, a Science Museum should have.»
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Thursday's ruling on the government's deportation scheme from Rwanda showed he disagreed with the verdict. The court's decision will be one of the last major decisions against Lord Burnett before his resignation on September 30.
His varied and distinguished legal career began after graduating from Oxford, where he studied law. In 1998 he was appointed Queen's Counsel and went on to specialize in administrative law. In the course of his work, he participated in the inquiries into the Guildford Four's convictions, the fire at King's Cross and the death of Princess Diana and Dodi Fayed.
Dame Sue Carr, who replaced him, will be the first female Lord. Chief Judge since the post was created about 755 years ago.
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