"5. This claim has been heralded as a challenge to the Home Secretary's general decision of removal to asylum claimants to Rwanda. This is a notion that needs to be handled with care. 6. There are some documents that are of general effect. There is a Memorandum of Understanding ("
'This note provides an assessment of Rwanda's asylum system, support provisions, integration opportunities as well as some of the general, related human rights issues, for use by Home Office decision makers handling particular types of protection and human rights claims.'
'[This document] must be read in conjunction with the separate country information reports: • Review of asylum processing Rwanda: county information on the asylum system: • Review of asylum processing Rwanda: country information on general human rights in Rwanda; • Review of asylum processing Rwanda: notes of interviews'
"10. Section 33 of the 2004 Act gives effect to Schedule 3 to the Act. Schedule 3 contains provisions about the removal of persons claiming asylum to 'countries known to protect refugees and respect human rights'. Absent Schedule 3, the operative provision issection 77 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). That prevents the removal from the United Kingdom of a person who has an asylum claim pending. Schedule 3 to the 2004 Act contains four distinct schemes that provide exceptions to the default provision insection 77 of the 2002 Act . Persons who have made asylum claims that have yet to be determined may be removed under any of these exceptions. The premise of these exceptions is that the person concerned will then be able to pursue an asylum claim in the country to which he has been removed. 11. Part Two of Schedule 3 to the 2004 Act prescribes a list of countries (all EU or EEA states) and provides that each is to be treated as a country in which a person would not be at risk of ill-treatment on any Refugee Convention ground; would not be sent to another country in breach of the Refugee Convention; and would not be sent to another country in breach of ECHR rights. Asylum claimants can be removed to such countries so long the Secretary of State certifies the person concerned is not a national of the country concerned. Part Two is not an issue in these proceedings; Rwanda is not on the list of states. Parts Three and Four of Schedule 3 permit the Secretary of State to make orders specifying states. If an order is made, the state concerned is to be treated as being one in which a person would not be a risk of ill-treatment on any Refugee Convention ground; and would not be sent to another country in breach of the Refugee Convention. Neither Part 3 nor Part 4 is material for present purposes; no such order has been made in respect of Rwanda. 12. Part 5 of Schedule 3 is material. By paragraph 17, the Secretary of State has the power to certify that she proposes to remove a person to a specified state; that the person is not a national of that state; and that it is her opinion that the specified state is a place where the person would not be at risk of ill-treatment on any Refugee Convention ground or be sent to any other country in breach of the Convention. If the Secretary of State has so certified, paragraph 18 of Schedule 3 disappliessection 77 of the 2002 Act so that the person concerned may be removed from the United Kingdom notwithstanding an extant asylum claim. The paragraph 17 power is the power that has been exercised in respect of each of the individual Claimants and is the power that is the legal premise for the Secretary of State's policy to remove certain asylum seekers from the United Kingdom to Rwanda. 13. The statutory provisions in the 2004 Act are supplemented by paragraphs 345 A - D of the Rules. These rules permit the Secretary of State to treat a claim for asylum as 'inadmissible" and not to decide the claim if the asylum claimant has already been recognised as a refugee in a third "safe country", or the claimant "otherwise" enjoys sufficient protection in a safe third country, or: '(iii) the applicant could enjoy sufficient protection in a safe third country, including benefiting from the principle of non-refoulement because: (a) they have already made an application for protection to that country; (b) they could have made an application for protection to that country but did not do so and there were no exceptional circumstances preventing such an application being made, or (c) they have a connection to that country, such that it would be reasonable for them to go there to obtain protection.' 'Safe third country' is defined at paragraph 345B: 'A country is a safe third country for a particular applicant, if: (i) the applicant's life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion in that country; (ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention: (iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhumane, or degrading treatment as laid down in international law, is respected in that country; and (iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country."
"Ground 1 The judge erred in law in finding that (i) in particular there was no compelling case in respect of Ground 1; (ii) there was no compelling case on the balance of the grounds, and indeed in respect of Grounds 4, 6 and 7, no serious issue to be tried. In consequence he erred in refusing to give any weight to the strength of the Claimants' case in determining the balance of convenience. Ground 2 The judge's conclusion that the balance of convenience did not favour the stay of removal: (i) was irreconcilable with the evidence that was before the Court; (ii) failed to take into account, and/or give adequate weight, to obviously material considerations (including failing to afford sufficient weight to the institutional expertise of UNHCR); (iii) was made on the legally erroneous basis that the judge was entitled to presume that an untested, unenforceable and unmonitored Memorandum of Understanding and Note Verbale would be complied with, notwithstanding the absence of any sound objective basis that the assurances contained therein would be fulfilled and/or any mechanism for enforcement or present monitoring; (iv) proceeded on the false premise that the analysis could be confined to the period through to the judgment of the Administrative Court; and (v) was otherwise 'plainly wrong'. Ground 3 The judge erred in law in refusing general interim relief on the basis that there was a 'mismatch' between the generic relief claimed and the decisions the legality of which would be in issue in the proceedings."
"(1) The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so. (2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks just."
"Further, the adequacy of damages as a remedy will rarely determine whether or not it is appropriate to grant or refuse an interim injunction. For that reason, the courts will normally need to consider the wider balance of convenience and in doing so, the courts must take the wider public interest into account."
"66. There is support at first instance for the proposition that, in a public law claim, the court will generally be reluctant to grant interim relief in the absence of a "strong prima facie case" to justify the granting of an interim injunction … This is not to say that the relevant case law at first instance supports the concept of a "strong prima facie case" being deployed as a "threshold" or "gateway" test in such cases, but rather that the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations weighing for or against the granting of an injunction."
"16. … The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. At the interlocutory stage, the court must therefore assess whether granting or withholding an injunction is more likely to produce a just result. … 17. … the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other."
"(3) The appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."
"6-021 … The appeal, whether from an interim or a final judgment, is by way of a review of the decision of the lower court unless the court considers that in the circumstances of a particular case the appeal should be by way of rehearing… The appeal court is not required to consider whether it would have granted an injunction, but whether the judge had been wrong to do so, respecting the judge's findings where the remedy was a discretionary one (Frank Industries Pty UK v Nike Retail BV[2018] EWCA Civ 497 applying Re DB's Application for Judicial Review[2017] UKSC 7 ; [2017] NI 301). … It is not the function of an appellate court in an injunction case to substitute its own discretion for that of the judge (Hadmor Productions Ltd v Hamilton[1983] 1 AC 191 ). It may do so however, where the judge has misdirected himself on the law (Mercury Communications Ltd v Scott-Garner[1984] Ch 37 )."
"17. We are not hearing an application for an interim injunction but an appeal. The question is not whether we would have made the same order as the judge, but whether the judge was wrong to make the order that he did. I do not consider that these alleged failings and the judge's treatment of the evidence are such as would entitle an appeal court to intervene. Even where a trial judge evaluates evidence given in writing without the benefit of live evidence an appeal court should generally respect his evaluation, (see DB v The Chief Constable for Northern Ireland … at paragraph [80]). This applies all the more strongly where the remedy that the judge has granted is a discretionary remedy."
"Only if the lower court's conclusions are irrational or otherwise plainly incorrect in law will its decision be reversed. As Sir James rightly reminded us, the grant of interim relief is discretionary and the exercise of discretion by a judge should be afforded appropriate deference by the appellate court."