On Monday 5 September in the High Court judges were informed that Rwanda is an ‘authoritarian state’ that ‘tortures and murders opponents’. This comes as the latest in a series of legal challenges predicated on Articles 3, 8 & 14 of the European Convention on Human Rights (as enacted in the UK by the Human Rights Act 1998).
Each are interpreted by the Claimants to support the argument that the court ought to use judicial review to force reconsideration of Rwanda deportations. This is claimed to breach the collective rights of the asylum seekers and do not offer a safe place to seek asylum, a requirement under the United Nations Convention on asylum.
The first flights were due to take place on 14 June 2021 but were grounded by the European Court Human Rights (ECHR) which issued specific interim measures ordering the UK authorities not to remove asylum seekers until three weeks after the resolution of the ongoing judicial proceedings. The ECHR cited concerns raised by the UN High Commissioner for Refugees that asylum seekers moved to Rwanda as part of the plan will not be able to access “fair and efficient procedures” related to their refugee status claims. This in turn triggered domestic legal mechanisms that prevented a further six planned flights. It is important to understand that the ECHR did not determine that the flights were unlawful, it only stated that the national and European courts should be given more time to decide this case properly. However, if the UK were to deport those concerned before the ECHR measures expire or are lifted, it would then be violating international law.
There have already been two rejected domestic applications for injunctions against the flights when the ECHR made its ruling, although appeals on various Human Rights, Equality Act, and Modern Slavery grounds have succeeded for individual Claimants.
The judicial review case now being heard in the Royal Courts of Justice is one brought by a number of charities, unions, and individuals and makes the argument that the deportation flights are in breach of the rights of those seeking asylum on the basis that “A presumption of safety must be sufficiently supported at the outset.” Further that “neither the claimed economic benefit” of the policy, “nor its asserted efficacy as a deterrent, has any evidential foundation” and that the policy is therefore both illegal and irrational.
In short Judicial review can be brought on four different basis:
- That a public body is acting illegally
- That a public body is acting irrationally (using the Wednesbury standard of irrationality e.g. that a decision is “so unreasonable that no reasonable authority could ever have come to it”)
- That a public body has acted with procedural unfairness, or
- That the individuals had a legitimate expectation of a different decision.
Due to the high bar that is set against judicial review decisions it is often difficult for Claimants to convince judges to intervene in the decisions of public bodies. This is because it is generally the courts view that it is the domain of public bodies and not judges to set policy. This reluctance is reflected in the courts rejection of initial injunction challenges in which the High Court judge ruled that there was “material public interest in the Home Secretary [Priti Patel] being able to implement immigration decisions”. This decision was upheld by the Court of Appeal.
The Defendants have argued that it is permissible under the legislation for asylum claims to be considered by those not domiciled in the UK and that temporary relocation to Rwanda whilst individual claims are considered is a legal and rational measure. Lord Pannick QC and Sir James Eadie QC, members of Ms Patel’s legal team, argued that “Rwanda does not conduct forcible removals to the countries of which these claimants are nationals.” Therefore, there was no risk of those who are not granted refugee status in Rwanda being removed to their country of origin. The members of Ms Patel’s team further added: “Arrangements have been made to ensure they are provided with suitable accommodation and support in Rwanda.”
The hearing is due to last for five days, with a second hearing in a claim brought by the group Asylum Aid set to take place in October. The determination of this case is likely to have significant implications for the interpretation of Human Rights legislation as it applies to those seeking asylum. It remains to be seen how these rights might be further affected or diminished by the proposed British Bill of Rights now under discussion by the government.
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email firstname.lastname@example.org or visit our Linkedin page.
Gregory Horne September 2022