AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023)
Citation: AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023)
Rule of thumb: Stare-decisis: What is the Rwanda policy - is the British Government immigration policy of dumping in Rwanda asylum seekers who arrive in the UK by boat legal? Yes. This would not be allowed under EU law, but since Brexit, this is legal in general as long as ‘refoulement’ issues can be ironed out.
Background facts: The basic facts of this case were that the British Government’s new immigration policy for asylum seekers fleeing persecution in their home country was to send every single one of them off to Rwanda and leave them (with the Rwandan Government being paid a fee for this).
Parties argued: The asylum seekers argued that Rwanda did return some asylum seekers to their country of origin in some circumstances, where they would be persecuted, which was called ‘refoulement’, and this was a violation of the human right not to be tortured or suffer inhumane & degrading treatment.
The Government argued that this strategy was the clear democratic will of the people of the United Kingdom since Brexit – this immigration practice is not allowed under EU law – it was one of the reasons for leaving the EU so as Britain could take back absolute control of its borders.
Court held: The Court held that there was a risk of refoulement in Rwanda, so the policy was technically a breach of Article 3, the right not to be subject to torture & inhumane conditions. However, it was held that it was technically not a breach of the law for Britain to send all asylum seekers to a third party country. Prime Minister Sunak has since confirmed that an updated Treaty with Rwanda will be agreed whereby if any asylum seekers are to be returned to their country of origin they should be returned to Britain to make the policy compliant, and ensure that this is set to be the new British immigration policy for asylum seekers.
Ratio-decidendi:
‘1. This appeal is concerned with the Secretary of State’s policy that certain people claiming asylum in the United Kingdom should not have their claims considered here, but should instead be sent to Rwanda in order to claim asylum there. Their claims will then be decided by the Rwandan authorities, with the result that if their claims are successful, they will be granted asylum in Rwanda.
2. In this appeal, the court is required to decide whether the Rwanda policy is lawful. That is a legal question which the court has to decide on the basis of the evidence and established legal principles. The court is not concerned with the political debate surrounding the policy, and nothing in this judgment should be regarded as supporting or opposing any political view of the issues…
148 … On the present appeal, the Supreme Court, having heard full argument on the point, has come to the clear conclusion that the effect of the 2020 Act is that articles 25 and 27 of the Procedures Directive do not have effect in the domestic law of the United Kingdom as retained EU law…
149 … we conclude that the Court of Appeal was correct to reverse the decision of the Divisional Court, and was entitled to find that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement….’
Lord Reed
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.