On 15 November 2023, the UK’s five most senior Supreme Court justices held, unanimously, that the government’s flagship Rwanda policy is unlawful: R (AAA (Syria) and others) v Secretary of State for the Home Department [2023] UKSC 42. The policy, which was central to the government’s mission to ‘stop the boats’, failed to satisfy long-standing domestic and international legal principles because Rwanda is not a safe country for asylum-seekers. The judgment sets out in careful detail why there are ‘substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement in the event that they were removed to Rwanda’ (para 73).

The Supreme Court’s decision focuses on the non-refoulement principle. This protects asylum-seekers from being returned to their country of origin (refouled) before a fair decision is made as to whether they require protection as a refugee. A refugee may not be refouled to any territory on which ‘his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’ (1951 Refugee Convention article 33(1)).

Non-refoulement is a key principle of international and domestic law, which is by no means limited to the European Convention on Human Rights (ECHR) or the Human Rights Act 1998 (HRA). The court indicated that non-refoulement may form part of customary international law, meaning it may bind all states regardless of treaty obligations. The UK government has sought to get around this by sending asylum-seekers to safe third countries. However, a third country is not safe if it does not respect the non-refoulement principle. Accordingly, the government’s plan to forcibly remove certain people who had crossed the Channel to Rwanda , and for Rwanda to deal with their asylum applications, relied on the country having an effective asylum system. The key question before the court was therefore whether Rwanda’s asylum system would effectively protect against refoulement. The relevant legal principles were not contested before the Supreme Court, and neither was the fairness of outsourcing asylum applications. The issue of outsourcing was somewhat less contentious pre-Brexit, when the UK was part of an EU agreement allowing it to return asylum-seekers to other member states (Regulation (EU) 604/2013, commonly known as Dublin III).

Crucially, the Supreme Court ruled, in sharp contrast to the approach taken by the Divisional Court, that a court must ‘decide for itself’ (para 34) whether there is a real risk of refoulement, and that it was necessary to engage with the UN High Commissioner for Refugees' important evidence. Courts must carefully assess whether a person faces a real risk of ill-treatment by reason of refoulement, even if there are diplomatic assurances to the contrary. The government had asked the court to defer to its assessment of the reliability of Rwandan assurances, relying inter alia on Lord Reed’s judgment in R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7.1See July/August 2021 Legal Action 18. However, the court emphasised that even in the context of national security, as in Begum, a necessary function of the court is to make its own objective assessment where human rights are involved.

Having rejected the government’s proposed light-touch approach to the evidence, it is unsurprising that the court then agreed with the Court of Appeal that Rwanda is unsafe because the evidence was stark. The Supreme Court noted problems with the general human rights situation in Rwanda; serious deficiencies in the Rwandan asylum system; and the failed agreement between Israel and Rwanda from 2013 to 2018, which was in similar terms to the UK’s Rwanda agreement. For example: Rwandan police fired at refugees protesting cuts to food rations in 2018, killing at least 12 people; and 100 per cent of asylum applications from Syrian, Afghan and Yemeni nationals were rejected in Rwanda during 2020–22, despite nationals of those countries having high success rates in the UK. After scrutinising the evidence, the court concluded that there were substantial grounds for believing that asylum-seekers faced a real risk of refoulement from Rwanda.

The government has recommitted to its Rwanda policy despite the court’s clear verdict. It is planning a treaty with Rwanda and intends to enact legislation stating that the country is safe. Even if a treaty is agreed, however, the court’s role in any future case will still be to carefully assess the evidence as to the risk of refoulement. It will retain this role regardless of whether legislation declares Rwanda safe, and pulling out of the ECHR will not assist the government either because the laws at issue here are not only the HRA and ECHR. The government’s apparent desire to change facts via legislation is disrespectful of the court’s considered judgment, a judgment that highlights how judicial accountability can assist the government to operate humanely.