UK Supreme Court rules Rwanda asylum policy unlawful

Baker McKenzie, Freshfields and Allen & Overy among firms helping to challenge controversial policy


In a landmark decision, the Supreme Court of the United Kingdom has unanimously upheld the Court of Appeal’s judgment declaring the government’s policy of sending certain asylum seekers to Rwanda as unlawful.  

The decision marks a significant setback for the controversial policy, under which certain people claiming asylum in the UK would be sent to Rwanda where their claims would be decided by the Rwandan authorities, with the result that they would be granted asylum in Rwanda if their claims were successful. 

A Baker McKenzie team led by London disputes parter Jo Ludlam worked on the case pro bono, acting for the UNHCR as interveners in proceedings. Other City firms including Freshfields Bruckhaus Deringer and Allen & Overy have also been involved in challenging the policy, as well as leading claimant firms such as Leigh Day and Duncan Lewis. 

The Court of Appeal had previously ruled, with a majority of 2:1, that Rwanda was not a safe destination for asylum seekers, based on substantial concerns about the risk of these individuals being sent back to their home countries, where they might face mistreatment. That scenario would violate the non-refoulement principle, which prohibits the return of individuals to a country where they might be subjected to persecution. 

In a unanimous judgment of the court, delivered by Lord Reed, the president of the court, and Lord Lloyd-Jones, the Supreme Court upheld the Court of Appeal's findings.  

The judges concurred with the lower court’s assessment that Rwanda’s record on human rights, a flawed asylum processing procedure and recent non-compliance with non-refoulement obligations under an agreement with Israel rendered it an unsafe country for asylum seekers. 

Lord Reed said: “We are unanimously of the view that [the Court of Appeal] were entitled to reach that conclusion. Indeed, having been taken through the evidence ourselves, we agree with their conclusion.” 

He added the Court was “not concerned with the political debate” but “evidence and the legal principles” at issue in the case. While acknowledging government submissions that Rwanda entered into the agreement in good faith, and acknowledging Rwanda’s capacity to produce fair and accurate decisions might increase, it had a “strong reputational incentive” to agree the deal, despite “evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention”.

Rwanda had “little or no experience” in dealing with asylum applications from countries from which claimants in the UK commonly came, the judgment said, noting also suggestions of a “dismissive attitude” towards asylum seekers from the Middle East and Afghanistan. 

The court found there were “substantial grounds for believing that a real risk of refoulement existed at the relevant time” and that the changes “needed to eliminate the risk of refoulement may be delivered in the future, but they have not been shown to be in place now”.   

The court also highlighted the significance of the evidence provided by UNHCR emphasising the organisation’s expertise and experience in matters of refugee protection. It criticised the Divisional Court for undermining the importance of the UNHCR’s input in its original assessment. 

The Divisional Court, it said “erred in its treatment of the evidence bearing on the risk of refoulement, essentially by failing to engage with the evidence of UNHCR concerning problems affecting the processing of asylum claims in Rwanda”. 

While focused on international law obligations, the court also found UK legislation barred the government from using the Rwanda policy owing to the risk of refoulement. It carefully considered UK law, as well as the European Convention on Human Rights, and dismissed a related cross-appeal arguing that the Rwanda policy was inherently unlawful as it contravened retained EU law.  

“UNHCR's evidence in this case was pivotal in determining the Supreme Court's ruling,” said Bakers' Ludlam. "There are many people today and in the future who have a very desperate need for safety and who, thanks to our pro bono work on this case, will be able to look on yesterday as the day that saved them from the distress, anxiety, trauma and, possibly, worse, of being sent to Rwanda. By any measure, we have made a profound humanitarian impact." 

Law Society of England and Wales president Nick Emmerson praised the “clear and unanimous decision from five independent judges”, adding the government should focus on clearing the existing asylum backlog and fund immigration solicitors to enable them to do so. 

“Quicker processing of claims means that those people granted asylum can go on to contribute fully to British society without being dependent on the state and those refused can be removed,” he said. 

The UNHCR was represented in court by a team headed by 1 Crown Office Row’s Angus McCullogh KC and Doughty Street’s Laura Dubinsky KC. 

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