“Deportation, extradition or any other measure to remove an alien may give rise to an issue under Article 3, however, and hence engage the responsibility of the Contracting State under the Convention, where substantial grounds have been shown for believing that the person in question, if removed, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to remove the individual to that country … .”
“Where a Contracting State removes asylum seekers to a third country without examining the merits of their asylum applications, however, it is important not to lose sight of the fact that in such a situation it cannot be known whether the persons to be expelled risk treatment contrary to Article 3 in their country of origin or are simply economic migrants. It is only by means of a legal procedure resulting in a legal decision that a finding on this issue can be made and relied upon. In the absence of such a finding, removal to a third country must be preceded by thorough examination of the question whether the receiving third country’s asylum procedure affords sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without a proper evaluation of the risks he faces from the standpoint ofArticle 3 of the Convention .”
“On the basis of the well-established principles underlying its case-law underArticle 3 of the Convention in relation to expulsion of asylum-seekers, the Court considers that the above-mentioned duty requires from the national authorities applying the ‘safe third country’ concept to conduct a thorough examination of the relevant conditions in the third country concerned and, in particular, the accessibility and reliability of its asylum system.”
“… an asylum seeker is required to present his/her need for protection immediately upon arrival at the airport/entry point but not to invoke asylum claim as an alternative reason after failing to satisfy immigration entry requirements”. (There is a similar statement in the tabular response in the answer to qu. 34.) The Claimants point out that it is not the case that an asylum claim must be made immediately. (2) The answer to qu. 27 in the tabular response says (among other things): “Cases referred to by UNHCR are not recognised as refoulement because all those cases are foreigners who have been refused entry visa because they were using forged documents and thus, not meeting immigration entry requirements.”
“(i) Many of those relocated were ‘not permitted to lodge their [asylum] claims’ and reported ‘arrests for lack of documentation’, ‘threats of deportation from unknown agents, following which eight disappeared’ and ‘continuous, random overnight visits by unknown agents at their accommodations’. All ‘feared for their personal safety, and feared refoulement to their country of nationality’. Further asylum-seekers later became known to UNHCR, of whom another seven ‘went missing’. Relocated asylum-seekers were ‘routinely moved clandestinely to Uganda even if they were willing to stay in Rwanda’. Dozens of asylum-seekers reported that ‘their documents were confiscated’ on arrival, ‘and they were taken to a house in Kigali where they were kept under guard’, before being ‘smuggled to Uganda’. (ii) UNHCR’s interviews with 80 Eritrean and Sudanese asylum-seekers in Italy who had been relocated under this arrangement revealed that, ‘feeling they had no other choice, they travelled many hundreds of kilometres through conflict zones’ and had ‘suffered abuse, torture and extortion before risking their lives once again by crossing the Mediterranean to Italy’. Some reported that those travelling with them had died en route to Libya. UNHCR is aware of two individuals who were transferred from Israel to Rwanda and who (as of 2022) still have no formal status in Rwanda despite claiming asylum several years ago. UNHCR has identified at least 50 cases of refoulement or threatened refoulement under the Israel-Rwanda arrangement.”
“LGBTIQ+ not able to register. This is demonstrably untrue. The RSDC has received applications from LGBTIQ+ and has granted refugee status to those who have been determined as having a well-founded fear of persecution on the basis of their sexual orientation.”
“DGIE’s role in the RSD process consists of preparing files to be submitted to the RSDC for consideration. These files include information gathered about the asylum seeker. DGIE does not make any recommendation that may influence outcome of the RSDC decision. The RSDC takes decisions based on the information contained in the file and the additional information provided by the Eligibility Officer.”
“4.3 A decision whether a Relocated Individual is recognised as having a refugee protection need will only be taken following an appropriate examination that will, amongst other things, provide the Relocated Individual with the opportunity to: 4.3.1 make a written application and provide evidence in support; 4.3.2 attend an interview to explain their application and answer any questions the decision maker may have; 4.3.3 to further explain their claim, including any elements that may be missing from their written application or after the interviewer’s question. 4.4 The asylum interview will: 4.4.1 be transcribed or electronically recorded in full. If the interview is transcribed, the Relocated Individual will be given the opportunity to review and, if necessary, correct the transcript; and 4.4.2 be conducted under conditions which allow the Relocation Individual to present the grounds for their application in a comprehensive manner. In particular; 4.4.2.1 the person who conducts the interview will be competent to take account of the personal and general circumstances surrounding the application, including the applicant’s cultural origin, gender, sexual orientation, gender identity or vulnerability; 4.4.2.2 wherever possible, the interview with the Relocated Individual will be conducted by a person of the same sex if the Relocated Individual so requests, unless there is reason to believe that such a request is based on grounds which are not related to difficulties on the part of the Relocated Individual to present the grounds of his or her application in a comprehensive manner; 4.4.2.3 be in the presence of an interpreter who is able to ensure appropriate communication between the Relocated Individual and the person who conducts the interview. The communication shall take place in the language preferred by the applicant unless there is another language which he or she understands and in which he or she is able to communicate clearly.”
“This is not true. The interview takes as much time as necessary for the applicant [to] explain clearly his or her case. The interview guiding questions are set in way that provides the applicant the possibility to provide all information to support their application. Applicants can be invited for more interviews if necessary.”
“Records of the DGIE interview: The DGIE conducts interviews with the asylum seeker in the initial stages of the asylum process with a view to submit the information to the RSDC and to grant the asylum seeker a temporary residence permit. The DGIE interviews consist of the asylum seeker describing their reasons for seeking asylum in Rwanda. The interview is recorded electronically and at the end of the interview, the asylum seeker is presented with a written record of the interview. The asylum seeker verifies the information and can confirm the record with a signature or can amend the record by correcting the information or providing more information. A copy of the DGIE record of interview as verified by the asylum seeker will be made available to the asylum seeker. The legal representative retained by the asylum seeker can assist with reviewing the records of the interviews.”
“Ability for Relocated Individual to review transcription RIs will have the ability to review the transcript and correct the record immediately after the interview process. The transcript can be printed there and then. After the interview is conducted and information recorded by DGIE on their digital system, it will be reviewed again to confirm the transcript is correct, including where relevant, that translations are correct as transcribed by the interpreter. Once all parties are content the document will be signed.”
“There is currently one Eligibility Officer which is adequate for the usual volume of claims received. (ToR of an Eligibility Officer are attached below). MINEMA is actively recruiting more Eligibility Officer to cater for the expected increase in asylum claims under this partnership.”
“JOB PURPOSE The Eligibility and Protection Specialist will be in charge of checking, record keeping, filing, and advocating on behalf of migrant families. He/She will determine whether or not migrant families’ various needs are met and propose corrective measures. DUTIES AND RESPONSIBILITIES Under the direct supervision of the Program Manager, the Eligibility Specialist will perform the following duties: · Assist in the monitoring and analysis of statistics related to migrant case processing in order to identify and respond to developments or issues affecting decision‐making quality, and to propose corrective measures. · Ensure the reception of migrants and asylum seekers and assist them in providing feedback on individual cases. · Conduct Migrants, asylum seekers’ interviews and draft their Assessments in accordance with set guidelines. · Conduct research on country of origin information and legal issues concerning migrants and asylum seekers, and assist in the maintenance of a local database of relevant information. · Maintain accurate and up‐to date records and data related to all work on individual cases.”
“4.5 For the purpose of taking decisions on asylum claims, decision makers will obtain up-to-date information as to the general situation prevailing in the countries of origin of the Relocated Individual. This information will be available to decision-makers, and they will have appropriate resources to further research and access expertise where needed. 4.6 A decision on a Relocated Individual’s asylum application will: 4.6.1 be taken on the merits of the individual application; and 4.6.2 will be objective and impartial. 4.7 Arrangements will be made to ensure that the decisions taken on individual claims are recorded. 4.8 Relocated Individuals will be notified in writing of the decision that has been taken on their asylum claim. 4.9 A decision will: 4.9.1 be in one of the official languages of Rwanda and, if needed for understanding, it will be translated in writing by an interpreter into a language that the Relocated Individual understands, free of charge; 4.9.2 include the reasons for the decision in both fact and law; and 4.9.3 a decision that is a refusal of the asylum claim will notify a Relocated Individual that they will be able to appeal the decision on their asylum claim and provide an explanation of how to do this.”
“The refugee status determination by the RSDC is an administrative process wherein minutes of the decision-making process are recorded. These minutes will be made available to the relocated individual attached to their notification of decision by the RSDC.”
“There is no opportunity for asylum seekers (whether or not interviewed) to make submissions (in person or through a lawyer) to the RSDC. Lawyers are not permitted at the RSDC stage. UNHCR and its legal aid partners have been told repeatedly that if a person was telling the truth, they had no need for a lawyer. Over the years, when legal aid partners have inquired about the possibility of legal representation, they have been told that as the relevant national refugee law does not specifically refer to provision of legal representation, it cannot be permitted.”
“The reasons are briefly provided in the notification and more detailed reasons are communicated to the applicant in person. Templates are being adjusted to provide detailed reasons on the notification.”
“The notification is provided by the RSDC. One of the main responsibility [sic] of the MINEMA Eligibility Officer is to give detailed reasons for refusal and advise the applicant on the way forward (how to lodge an appeal, etc.).”
“UNHCR has observed a lack of training or sufficient knowledge at all stages of the Rwandan RSD system. The changing, part-time and non-specialist composition of what is in principle the main decision-making body on asylum claims, the RSDC, in UNHCR’s view compromises the quality and integrity of the Rwandan RSD procedure. The RSDC’s members are high level functionaries from an array of ministries, whose primary responsibilities lie elsewhere and many of whose portfolios do not otherwise include matters relevant to the asylum procedure. UNHCR’s repeated offers to provide training to the Rwandan RSD authorities have only been taken up on two occasions, with a gap of three years in between and those trainings were short and basic.”
“5.1 A Relocated Individual may appeal a refusal of their asylum application to the Minister responsible for considering such appeals. 5.2 A Relocated Individual who wishes to appeal to the Minister will have the opportunity to make oral and or written representations. Any legal representative engaged by the Relocated Individual will have the opportunity to make submissions when appropriate before the end of the process of appeal to the minister.”
“If a Relocated Individual’s claim for asylum is refused, that Relocated Individual will have access to independent and impartial due process of appeal in accordance with Rwandan laws.”
“5.3 A Relocated Individual whose appeal has been refused by the Minister will be permitted to appeal that decision to the High Court of Rwanda. 5.4 The court will be able to conduct a full re-examination of the Relocated Individual’s claim in fact and law in accordance with Rwanda rules of court procedure. 5.5 A Relocated Individual and their representative will have the opportunity to make full representations as to fact and law at their appeal in accordance with Rwandan rules of court procedure.”
“Even if the safeguards of representation and High Court appeal are now put in place for UK-Rwanda arrangements, judges and lawyers do not have relevant experience. This raises a serious question about the effectiveness of any appeal. In any event, UNHCR does not consider that the possibility of an appeal to the High Court provides a sufficient safeguard against a decision-making process which is flawed from the outset.”
“Individuals are allowed to appeal to high court to request a judicial review of the decision given by the Minister. - The High Court tries cases by a bench of one (1) or three (3) judges assisted by a Court Registrar. The President of the court determines the appropriate number of the sitting judges depending on the importance of the case. - Evidence admissible under the rules of evidence can take the form of testimony, documents, photographs, videos, voice recordings, DNA testing, or other tangible objects. - High Court judgments can be appealed to the Appeal Court.”
“We reject firmly the submission of the GoR that the judge should unequivocally have stated the judiciary was independent and that there was no risk of bias or interference in these cases, because they are not ‘political’. The clearly authoritarian nature of the regime; the long and continuing history of the influence of political will over the justice system where the case is perceived to matter; the evidence of Gahima [a Rwandan lawyer and activist] and others; the evidence of threats arising from criticisms of the regime, not in a political context but in the context of the justice system; the ‘Osman’ warnings [warnings given to Rwandan exiles in London that they were at risk from the GoR]; the experiences of witnesses who gave evidence in genocide cases unfavourable to the prosecution, whether in Rwanda or abroad: all these point to a high level of risk of pressure within the system.”
“The evidence suggests that judges are not appointed unless they have party membership of the RPF [i.e. the governing party]. Their appointments have moved from being indefinite to appointment for definite terms. The Rwandan executive can achieve the dismissal of serving judges: it has done so in recent times in respect of around 40 individual judges. We are not in a position to say whether the suggested misconduct or corruption was established in these cases: it may be so. But the capacity of the executive to get rid of judges is established. In such circumstances, there can be little doubt that judges will feel exposed.”
“7. Procedural and Legal Assistance 7.1 A Relocated Individual will be provided with orientation that includes details of the asylum process and support that is available to them free of charge. 7.2 Each Transferee will be permitted to seek legal advice or other counsel from any non-governmental or multilateral organisation, at any stage of the asylum application process at their own expense including from an organisation providing that support free of charge. 7.3 The legal representative or other counsel engaged by a Relocated Individual in accordance with 7.2 above will be permitted to provide legal assistance at every stage of the claim, in accordance with Rwandan law. 8. Legal assistance at appeal 8.1 Should a Relocated Individual wish to appeal their decision to the court of Rwanda they will be provided with legal assistance and representation from a legal professional qualified to advise and represent in matters of asylum, free of charge. This shall include, at least, the preparation of the required procedural documents and participation in the hearing before the appeal court on behalf of the applicant. 8.2 Rwanda shall provide the legal advisor access to the information provided by the applicant’s file upon the basis of which a decision is or will be made. Rwanda may make an exception where disclosure of information or sources would jeopardise national security, the security of the organisations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications for international protection by the competent authorities of Rwanda or the international relations of Rwanda would be compromised.”
“… the Rwandan RSD process is an administrative process with the possibility of appeal at the High Court. During the administrative phase of the process lawyers’ role is limited: they can assist applicants in preparing their submissions to the RSDC but they cannot attend the RSDC sessions. At the High Court level, the RSDC lawyers are permitted to represent the asylum seekers in accordance with the law.”
“In accordance with their constitutional right to due process, the relocated individual/asylum seeker has the right to retain the services of a lawyer at any stage of the asylum process. The legal representative of the asylum seeker is permitted to attend the interviews at DGIE level and any interview at the RSDC.”
“The main purpose was to talk them through, and get their initial views on, the latest draught of the Asylum Process NV ... A few key points: … • As expected, 7.2 and 7.3 were the biggest sticking points. They felt that this brought us back to the same issues we discussed last week, particularly in terms of compatibility with, and potential impacts on, their immigration system – including the risk of creating 2 asylum systems. I emphasised this was a red line for us …. Ultimately they agreed to keep the wording as it is but, in Providence’s [evidently a member of the GoR team] words, “we’ll see how it works in practice” …”
“The Government of Rwanda … intends to ensure access to legal advice to asylum seekers during the administrative phase of the RSD process. The Government of Rwanda is building on existing partnership agreements with partner organizations such as the Legal Aid Forum, the Prison Fellowship and the Rwanda Bar Association to provide more funding aimed at increasing the partner organizations’ capacity to provide free legal aid to asylum seekers.” (2) The primary response when addressing para. 100 of LB 2 begins by stating that “LAF informed us that it currently has 34 Advocates and over 20 legal officers on refugee protection and asylum procedures”
“There is a tripartite agreement between the government of Rwanda, Legal Aid Forum and Prison Fellowship (nongovernmental organizations) to provide legal services and legal assistance in regards to refugee protection. In addition, the ministry of justice has a standing agreement with Rwanda Bar Association to provide legal aid services free of charge such pro-bono lawyers and free legal advice.” (4) Qu. 8 of the tabular response refers to UNHCR having suggested that “there is only 1 lawyer who is adequately trained in Rwanda to assist” and asks if that is correct and for further information about training. The reference appears to be to para. 100 of LB 2, though if so it is not very accurate. The first part of the answer refers to numbers at the Rwandan bar generally and to their training. But it continues: “The Legal Aid Forum has at 36 lawyers trained to provide legal assistance on matters relating to the asylum process and migration law. The LAF lawyers have received training on Refugee protection and migration from in-house programs and UNHCR programs.”
“During the initial application process RIs can seek legal assistance at their own cost for private advice or through NGOs during the initial stage. Two NGOs, the Legal Aid Forum and Prison Fellowship, have confirmed to the GoR they will provide advice at no cost if RIs ask for it at the initial stage. The GoR does not have a formal agreement with them for this.”
“To mitigate this, they have agreed to use the virtual interpretation facilities the Home Office have offered to them through the Home Office contract with The Big Word (TBW). They have opted for telephone interpreting, face to face interpreting by way of an online platform and translation services (for the SOPS, orientation pack and other written documents where necessary). They intend to use TBW only where necessary and when their current contractors cannot provide a service. This was set up ahead of the scheduled charter flight on 14/6 and has been tested to ensure the service is functioning. Longer term, GoR will look to negotiate their own separate contract with the TBW with assistance from the dedicated HO team.”
“Asylum decisions will be taken by decision-makers who are appropriately trained to take a decision on an asylum claim in accordance with the Refugee Convention and are able to seek advice from senior officials or external experts if necessary.”
“There is a need for an objective assessment of the fairness and efficiency of the asylum procedures, followed by a range of capacity development interventions including, but not limited to, sustained capacity building and training for all actors working in the Rwandan national asylum system [my emphasis].”
“UNHCR has observed serious shortcomings in knowledge and training regarding RSD among relevant officials at all levels. UNHCR considers that this lack of training gives rise to a serious risk that refugees will be refused recognition by the Rwandan Government and refouled.”
“93. The training was attended by only 15 participants. Out of 11 RSDC members at the time, eight attended, but even some of those could only attend partially because of their conflicting professional schedules and ministerial commitments (and one attended for only two days). The RSDC chair (who was new to the process at the time and had not yet attended any RSD-related adjudication) and secretary missed at least the first day of the training which covered basic principles of refugee law. 94. At the time of the training, most RSDC members were new, had no prior exposure to RSD and had not attended RSDC deliberations. One of the officials remarked that he did not understand why he was required to undertake RSD given that his departmental role was not connected to asylum. 95. The training was targeted at an extremely basic level. It included, in the main, general principles of refugee law, in addition to brief and basic training on assessing individual claims and interviewing techniques. My colleagues felt that the basic knowledge of the attendees did not allow them to cover crucial areas such as how to deal with claims based on membership of a particular social group. 96. The participants’ lack of relevant knowledge and skills was particularly apparent during a simulation of RSDC interviews and decision making. Observations from UNHCR’s trainers noted that the participants lacked interviews skills and had very limited or no understanding of how to assess refugee status. In a simulation involving a husband and wife, the ‘couple’ were interviewed together and the husband was allowed to answer for the wife. In addition, there was no opportunity for the ‘asylum seeker’ to express relevant gender-based violence related elements of her claim. It was also noted that elaborate leading questions were asked by participants and that the ‘asylum seeker’ was not given an opportunity to respond in full to questions, nor were they alerted to adverse credibility points. When making their assessments of the cases, participants were unable to demonstrate knowledge of how to assess credibility and COI; or of key concepts in refugee law. This is not surprising given that the participants are senior civil servants with no background in RSD. 97. In UNHCR’s view, this short (and truncated) one-off workshop cannot be considered adequate training to ensure fair RSD decision making, especially for training participants with little or no prior knowledge and experience of refugee law. RSDC members still at the end of the training lacked by some distance the requisite knowledge and skills to make fair, reliable RSC decisions. RSDC members require significant further in-depth on-the-job training and shadowing of appropriate procedures. However, in UNHCR’s view, while that is necessary to rectify some of the problems in the RSDC process, it would be far from sufficient: the non-specialist composition of the RSDC is inimical to fair, reliable RSD decision-making. UNHCR was further concerned by attitudes expressed by Rwandan authorities during this training that DGIE are within their rights to deny access to its territory or to RSDC procedures if they consider the profile of an individual applicant unpalatable, including on unspecified grounds of national security. The Rwandan staff and officials present at UNHCR’s December 2021 training did not appear to consider such ‘screened out’ persons as asylum seekers or consider that their deportation would constitute refoulement.”
“The Government of Rwanda has … taken measures to build the expertise of persons involved in processing the claims of asylum seekers. The Rwanda Institute of Legal Practice and Development (ILPD) will be providing bloc courses, periodic trainings and workshops on refugee law and other related laws to Eligibility Officers, RSDC Members, lawyers, and high court judges.”
“The interviewing officers at DGIE have received different trainings on international protection of refugees, international law of refugees, rights-based approach to migration law, national laws relating to refugees and migrants, interview skills, etc. - These various trainings were provided through: 1. Rwanda Institute of legal practice and development (ILPD). 2. The International Institute of Humanitarian Law/San Remo, Italy.”
“They have received training on refugee status determination. … In addition to the periodic training/workshops on international refugee law and asylum process offered by UNHCR (the latest trainings by UNHCR were offered in 2018 and 2021). UNHCR also offered training to RSDC members at International Institute of Humanitarian Law/San Remo, Italy. The members also bring on board complementary expertise from their respective specialized institutions. The diverse expertise which is uniquely relevant to the work the committee ranges from human rights perspective, diplomacy & global trends, refugee management, security and migration matters, etc. So, RSDC is purposely comprised of members with varying knowledge and expertise that enables objective consideration of asylum claims.”
“Two Eligibility Officers and one RSDC members were trained at San-Remo. 9 out of the 11 RSDC members participated in the training co-organized by MINEMA and UNHCR in December 2021 and 10 out of 11 in the one organized by MINEMA in December 2018. Two RSD members completed online training in eligibility and RSD process. These training normally serves to harmonize on principles that guide the decision making. In addition, each of the RSDC members has completed training in her/his area (human right, humanitarian protection, international justice, migration, socio economic inclusion, etc) that build analytical skills for the member to contribute efficiently during the committee sessions.”
“A training for RSD members is also being organized and shall be facilitated by local learning institutions (University of Rwanda and Institute of Legal Practice and Development) but also by institutions concerned by the RSD process including MINEMA, MINIJUST, NCHR, DGIE, MINAFFET.”
“The DGIE Director informed me that all DGIE Immigration Officers are trained on asylum and international protection, including how to register asylum applications, conduct asylum interviews, and write reports for the Refugee Status Determination Committee (RSDC). The Director informed me on17 June 2022 that DGIE Immigration Officers undergo a minimum of six months training at a dedicated training college followed by on-the-job training once they commence their duties. The Director also told me on 17 June that most of the training is in-house but DGIE Immigration Officers have received training from international organisations including the International Organization for Migration (IOM) and international partner countries.”
“143. Rwanda’s serious capacity issues cannot be addressed within a short space of time. … 144. Moreover, at the time of making this statement, UNHCR is unaware of any steps being initiated that might, after a sustained period of capacity building, eventually permit certain of the commitments in the Notes Verbales and MOU to be fulfilled. UNHCR is not, for example, aware of interpreters, lawyers or decision makers being hired or trained by the Rwandan Government at present.”
“Furthermore, even if some deficiency in Rwandan asylum law were identified ... it would not give rise to a risk of refoulement or Article 3 ill treatment unless there were to be evidence of intention to send the asylum seeker back to their country of origin”
“Rwanda has no returns agreement with any of the countries in question ... The MOU provides, at para 10.3, for relocated individuals to apply for residence even if refused asylum.”
“The statement of Chris Williams sets out what he was told by DGIE officials about what would happen to relocated individuals who are refused asylum. Senior officials from DGIE in Rwanda confirmed that if an individual who was relocated to Rwanda under the MEDP had their asylum claim refused and all their appeal rights were exhausted, they would be eligible to be issued a Resident Card. They said that they envisaged that all relocated individuals would be permitted to remain in Rwanda and that no relocated individuals would be forcibly returned to their country of origin. They also explained that the Government of Rwanda did not have returns agreements or arrangements in place with any country with the exception of neighbouring countries.”
“10.3 For those Relocated Individuals who are neither recognised as refugees nor to have protection need in accordance with paragraph 10.2, Rwanda will: 10.3.1 offer an opportunity for the Relocated Individual to apply for permission to remain in Rwanda on any other basis in accordance with its domestic immigration laws and ensure the Relocated Individual is provided with the relevant information needed to make such an application; 10.3.2 provide adequate support and accommodation for the Relocated Individual’s health and security until such a time as their status is regularised or they leave or are removed from Rwanda.”
“For those Relocated Individuals who are neither recognised as refugees nor to have a protection need or other basis upon which to remain in Rwanda, Rwanda will only remove such a person to a country in which they have a right to reside. If there is no prospect of such removal occurring for any reason Rwanda will regularise that person’s immigration status in Rwanda.”
“Practice shows that a number of asylum applications are made by individuals looking for the right to work and reside in Rwanda and not necessarily in need of international protection under the Refugee Convention and the national laws relating to refugees. As mentioned above, the RSD process is nonadversarial and actively seeks provide durable solutions to all individuals claiming asylum. To this effect, it is the Government of Rwanda’s policy to not conduct deportations of persons whose asylum claims are rejected. The DGIE endeavors to provide legal residence to persons residing in Rwanda. A significant portion of asylum applicants are granted legal residence in Rwanda on other grounds such as work/business permits and dependent/relatives permits.” (2) Qu.12 in the tabular response asks how many of those who are refused asylum are forcibly removed from Rwanda. The answer is: “None. Rwanda has a policy of no deportation. Most of those whose refugee status are not accepted are granted legal residence permit on other grounds. Others leave voluntarily.” (3) Qu. 22 of the tabular response reads: “Relocated individuals who are refused asylum and are not grated another leave status in Rwanda. We understand that at present there are no returns agreements with the main countries of origin for those likely to come to you under the arrangements. Do you intend to reach out to these countries to negotiate these and if not would you otherwise remove these individuals and if so how?”
“There are no intentions to conclude return agreements with countries at the moment. the relocated individuals will be issued with resident permits which will allow them to have resident travel document in case they want to return to their country of origin: a resident travel document issued to a foreigner legally residing in Rwanda who is not a refugee and who is unable to acquire any other travel document. it should be noted that under this arrangement and in respect of domestic laws and all other international conventions on refugees and human rights that Rwanda has signed, no relocated individual will be removed or sent back to a country where he/she may face danger or persecution. If any individual needs to be removed from the country, formal consultations through the available diplomatic channels will be done to effect the removal.”
“… [T]he Claimants’ submission is speculative. It does not rest on any evidence of any presently-held opinion. There is no suggestion that any of the individual Claimants would be required to conceal presently-held political or other views. The Claimants’ submission also assumes that the response of the Rwandan authorities to any opinion that may in future be held by any transferred person would (or might) involve article 3 ill-treatment. Given that the person concerned would have been transferred under the terms of the MEDP that possibility is not a real risk. It is to be expected that the treatment to be afforded to those transferred will be kept under the review by the Monitoring Committee and the Joint Committee (each established under the MOU). Further, the advantages that accrue to the Rwandan authorities from the MEDP provide a real incentive against any mis-treatment (whether or not reaching the standard of article 3 ill-treatment) of any transferred person.”
“If a case assessed as suitable for inadmissibility action appears to stand a greater chance of being promptly removed if referred to Rwanda (a country with which the UK has a Migration and Economic Development Partnership (MEDP), rather than to the country to which they have a connection, TCU should consider referring the case to Rwanda. An asylum claimant may be eligible for removal to Rwanda if their claim is inadmissible under this policy and (a) that claimant’s journey to the UK can be described as having been dangerous and (b) was made on or after1 January 2022 . A dangerous journey is one able or likely to cause harm or injury. ... Those progressed for consideration for relocation to Rwanda under the MEDP will be taken from the detained and non-detained cohort and be identified in line with processing capacity. Priority will be given to those who arrived in the UK after9 May 2022 . ... Decision makers must take into account country information of the potential country/countries to where removal may occur in deciding whether referral into a particular route is appropriate in the particular circumstances of that claimant.”
“There are not substantial grounds for believing that a person, if relocated, would face a real risk of being subjected to treatment that is likely to be contrary toArticle 3 ECHR by virtue of being refouled or returned to a place where they have a well-founded fear of persecution.”
“The Court was wrong to conclude that R’s inadmissibility policy on removals to Rwanda was not unlawful either under the conventional Gillick test or under a Gillick test necessarily modified in cases involving a real risk ofArticle 3 ECHR breach.”
“It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention. After all, it would be bizarre to provide that formal immigration rules must be consistent with the Convention but that informally adopted practices need not be consistent with the Convention. The reach of section 2 of the 1993 Act is therefore comprehensive.”
“9. The Court erred in failing to address the question of whether asylum-seekers removed to Rwanda would be accorded their rights under the Refugee Convention as a matter of vires as opposed to rationality. 10. The Court erred in concluding at [126] that the MEDP Scheme as set out in paragraphs 345A-D of the Immigration Rules was consistent with the Refugee Convention and therefore not ultra viress2 of the 1993 Act . 11. The Court erred in finding that inadmissibility and/or removal to Rwanda did not constitute a penalty for the purposes of Article 31 of the Refugee Convention. 12. The Court was wrong to find, for the purposes of Article 31 of the Refugee Convention, that the removal of RM, before his asylum claim would have been considered, to a third country with which he has no prior connection, with the avowed aim of deterring them or others from seeking asylum in the UK after arriving by unlawful means, did not constitute a penalty and therefore was consistent withs.2 of the Asylum and Immigration Appeals Act 1993 .”
“Refugees unlawfully in the country of refuge 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”
“Prohibition of expulsion or return (‘refoulement’) 1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” 2. … 3. There shall be taken into account, together with the context: (a) …; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) … .”
“1. Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) the principle of non-refoulement in accordance with the Geneva Convention is respected; (c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and (d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention. 2. The application of the safe third country concept shall be subject to rules laid down in national legislation, including: (a) rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country; (b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe; (c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment. 3. When implementing a decision solely based on this Article, Member States shall: (a) inform the applicant accordingly; and (b) provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance. 4. Where the third country does not permit the applicant for asylum to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II. 5. Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with the provisions of this Article.”
“The operation of the Dublin III scheme indicates that a constrained application of the ‘safe third country’ concept, with clear procedures and a robust protective legal framework, may be consistent with the Convention.”
“The MEDP scheme represents a significant departure from the Dublin III framework and an extension of the ‘safe third country’ concept beyond that permitted by the Convention. Rwanda is not a country included in Parts 2-4 of Schedule 3 [to theAsylum and Immigration (Treatment of Claimants, etc.) Act 2004 ], and is therefore not subject to the statutory presumption of safety; there has been no Parliamentary scrutiny of the Secretary of State’s decision to treat Rwanda as a safe country. Rwanda is, obviously, not bound by EU standards nor the Common European Asylum System …; it is not a signatory of the [European Convention on Human Rights]; it is not subject to the jurisdiction of the [Court of Justice of the European Union] or the European Court of Human Rights. The MEDP scheme is underpinned not by statutory provisions, but by the Rwandan MOU and accompanying Notes Verbales …, paragraphs 345A-C of the Immigration Rules and relevant policy guidance.”
“… I can well see that if a person arrives in the United Kingdom from country A claiming to be a refugee from country B, where country A is itself a party to the Convention, there can in the ordinary case be no obligation on the immigration authorities here to investigate the matter. If the person is refused leave to enter the United Kingdom, he will be returned to country A, whose responsibility it will be to investigate his claim to refugee status and, if it is established, to respect it. This is, I take it, in accordance with the ‘international practice’ [referred to in the evidence]. The practice must rest upon the assumption that all countries which adhere to the Convention may be trusted to respect their obligations under it. Upon that hypothesis, it is an obviously sensible practice and nothing I say is intended to question it.”
“Article 31 refers to ‘penalties’. It is clear from the travaux préparatoires that this refers to administrative or judicial convictions on account of illegal entry or presence, not to expulsion ... Paragraph 1 does not impose an obligation to regularise the situation of the refugee nor does it prevent the Contracting States from imposing an expulsion order on him. However, a refugee may not be expelled if no other country is willing to admit him …”
“But I would make an important caveat. However generous and purposive its approach to interpretation, the court’s task remains one of interpreting the written document to which the contracting states have committed themselves. It must interpret what they have agreed. It has no warrant to give effect to what they might, or in an ideal world would, have agreed. This would violate the rule, … expressed in article 31(1) of the Vienna Convention, that a treaty should be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context. It is also noteworthy that article 31(4) of the Vienna Convention requires a special meaning to be given to a term if it is established that the parties so intended. … It is in principle possible for a court to imply terms even into an international convention. But this calls for great circumspection since, as was said in Brown v Stott[2003] 1 AC 681 , 703, ‘it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree,’ and caution is needed ‘if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept’.” ‘it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree,’ ‘if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept’.”
“Mr Drabble KC submitted that the Refugee Convention imposes an obligation on contracting states to determine all asylum claims made, on their merits. We disagree. There is no such obligation on the face of the Convention. The obligation that is imposed is the one at article 33, not to expel or return a refugee to a place where his life or freedom would be threatened by reason of any of the characteristics that the convention protects. Mr Drabble’s submission was that an obligation to determine asylum claims would be consistent with the spirit and purpose of the Convention and could therefore reasonably be assumed. Again, we disagree. Obligations in international treaties are formulated with considerable care. They reflect balances struck following detailed negotiations between states parties. An obligation to determine every asylum claim on its merits would be a significant addition to the Refugee Convention. There is no reason to infer the existence of an obligation of that order; to do so would go well beyond the limits of any notion of judicial construction of an international agreement; and the protection that is necessary if the purpose of the Convention is to be met, is provided by article 33.”
“an individual cannot be denied refugee status – or, most important, the opportunity to make a claim for such status through fair assessment procedures – solely because of the way in which that person sought or secured entry into the country of destination” and that “[o]bstructed or delayed access to the refugee process is a ‘penalty’ within the meaning of art. 31(1) …”
“The respondents contend that art. 31(1) of the Refugee Convention refers only to criminal penalties. This interpretation runs counter to the purpose of art. 31(1) and the weight of academic commentary: J. C. Hathaway, The Rights of Refugees Under International Law (2005), at pp. 409-12; Gallagher and David, at pp. 164-68; G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law (3rd ed. 2007), at p. 266. The generally accepted view is that denying a person access to the refugee claim process on account of his illegal entry, or for aiding others to enter illegally in their collective flight to safety, is a ‘penalty’ within the meaning of art. 31(1). The law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection (or refugee determination procedures) to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or other material benefit.”
“There is, therefore, a clear consensus. Article 31 does not prevent a state expelling a refugee. States must not act in breach of article 33; removal that is not contrary to article 33 is not a penalty for the purposes of article 31. On this basis, neither decisions on inadmissibility under paragraph 345A of the Immigration Rules, nor decisions under paragraph 345C on removal to Rwanda are contrary to the Refugee Convention. The latter because one premise of a paragraph 345C decision is that the country concerned is a safe third country, as defined at paragraph 345B of the Immigration Rules. The deterrent purpose that the Home Secretary pursues in relation to removals to Rwanda does not, of itself, render removal to Rwanda contrary to article 31, let alone article 33 of the Refugee Convention. Further, the simple fact of removal to Rwanda is not sufficient to make good the Claimants’ submission that removal is a penalty contrary to article 31. That submission would succeed only when removal amounts to a breach of article 33. Looked at on this basis, the Claimants’ article 31 submission merges with their submission on whether Rwanda is a safe third country. If it is a safe third country, decisions taken in exercise of the powers in paragraphs 345A - 345D of the Immigration Rules are not in breach of article 31; if, however, Rwanda is not a safe third country, removal would be both contrary to paragraph 345C of the Immigration Rules and to both article 31 and article 33 of the Refugee Convention.”
“When an application is treated as inadmissible, the Secretary of State will attempt to remove the applicant to the safe third country in which they were previously present or to which they have a connection, or to any other safe third country which may agree to their entry [my italics].”
“An Act to make provision to end rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration; to confer power to modify retained direct EU legislation relating to social security co-ordination; and for connected purposes.”
“Repeal of the main retained EU law relating to free movement etc. Schedule 1 makes provision to— (a) end rights to free movement of persons under retained EU law, including by repealing the main provisions of retained EU law relating to free movement, and (b) end other EU-derived rights, and repeal other retained EU law, relating to immigration.”
“The Secretary of State shall from time to time … lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter.”
“70. Paragraph 6 ensures any directly effective rights that will have been saved by the EUWA 2018 and would, in the absence of this paragraph, be retained, cease to apply insofar as they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, specified domestic immigration legislation or functions. For example, the residence rights that are derived from Articles 20 and 21 of the TFEU (rights of citizenship and free movement) will be retained EU law and, unless they are disapplied would provide a right to reside in the UK for certain groups, for example ‘Chen’ carers who are primary carers of an EU citizen child who is in the UK and is self-sufficient. However, the rights derived from Articles 20 and 21 would continue to apply in non-immigration contexts unless disapplied. 71. The following is a non-exhaustive list of the directly effective rights relevant to this Paragraph. …”
“83. In so far as applicable to the United Kingdom the principal EU measures are (i) the Qualification Directive and (ii) the Procedures Directive (together, ‘the Directives’). 84. The Secretary of State accepts, for the purposes of this appeal, and I agree, that the relevant provisions of the Directives are directly effective and remain extant in domestic law as ‘retained EU law’ after the United Kingdom’s withdrawal from the EU.”
“Schedule 3 (which concerns the removal of persons claiming asylum to countries known to protect refugees and to respect human rights) shall have effect.”
“This Part applies to a person who has made an asylum claim if the Secretary of State certifies that— (a) it is proposed to remove the person to a specified State, (b) in the Secretary of State’s opinion the person is not a national or citizen of the specified State, and (c) in the Secretary of State’s opinion the specified State is a place— (i) where the person’s life and liberty will not be threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, and (ii) from which the person will not be sent to another State otherwise than in accordance with the Refugee Convention.”
“Where this Part applies to a person— (a) … (b) he may not bring an immigration appeal in reliance on an asylum claim which asserts that to remove the person to the State specified under paragraph 17 would breach the United Kingdom’s obligations under the Refugee Convention, (c) he may not bring an immigration appeal in reliance on a human rights claim if the Secretary of State certifies that the claim is clearly unfounded, and (d) …”
“In addition to background information obtained from a range of sources, [CPINs] also include relevant caselaw and our (CPIT’s) general assessment of the key aspects of the refugee status determination process (that is risk, availability of protection, possibility of internal relocation, and whether the claim is likely to be certified as ‘clearly unfounded’).”
“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. It is not intended to be an exhaustive survey of a particular subject or theme. It analyses the evidence relevant to this note – that is: information in the contained in the separate country information reports (see below); refugee/human rights laws and policies, in particular paragraph 345B of the immigration rules which sets out when a country is a ‘safe third country of asylum’; and applicable caselaw – describes this and its inter-relationships, and provides an assessment of whether, in general, there are substantial grounds for believing that a person, if relocated to Rwanda, would face a real risk of being subjected to treatment contrary toArticle 3 of the European Convention on Human Rights (ECHR).”
“Decision makers must, however, still consider all claims on an individual basis, taking into account each case’s specific facts [emphasis in original].”
“Have there been breaches of theData Protection Act 1998 and/or the UK General Data Protection Regulation in the implementation of the Rwanda policy? Do such breaches invalidate decisions taking under either paragraph 345A or 345C of the Immigration Rules?”
“First, that transfer of personal data to Rwanda on the terms set out in the MOU is contrary to the requirements in Chapter V of Retained European Parliament and Council Regulation (2016/679/EU), better known as the United Kingdom General Data Protection Regulation (‘the UK GDPR’). Chapter V makes provision regulating the transfer of personal data to third countries. Second, that the Home Secretary has failed to comply with article 13 of the UK GDPR, which requires a data controller when obtaining personal data from a data subject to provide information, for example on the purposes for which the data obtained will be processed. Third, that the data protection impact assessment prepared by the Home Secretary in respect of the MEDP, to meet the requirements of article 35 UK GDPR, is defective.”
“Even assuming that SAA is correct on any or all of his submission on compliance with the UK GDPR, does that affect the legality of any decision the Home Secretary has taken under paragraph 345A or 345C of the Immigration Rules such that it would be appropriate to quash that decision for that reason?”
“The submission for SAA is to the effect that the power to make decisions under the Immigration Rules (i.e., decisions under paragraph 345A and 345C) depended on compliance with whatever requirements might arise either under the UK GDPR or under its counterpart, theData Protection Act 2018 … In consequence, failure to comply with data protection law would require the conclusion that the immigration decisions were unlawful and should be quashed.”
“All this being so, the data protection law submissions in this case are not capable of producing the conclusion that the Home Secretary’s decisions under Immigration Rules are unlawful.”
“The court erred in holding that the Appellant’s data protection arguments were not relevant to any public law decision, and it erred in not addressing the Appellant’s data protection arguments lawfully, or adequately, or at all.”
“As a matter of principle, it cannot be that any breach of any rule on the part of a public authority or for which that authority is responsible, occurring in the context of either making or executing a public law decision will necessarily affect the validity of that public law decision. To take an obvious example, if a person being removed from the United Kingdom was assaulted by a Home Office official on his way to the airport, that assault would be unlawful but would not in itself compromise the legality of the immigration decision that was the reason for removal. On its facts, this example is some way distant from the cases now before us. However, on the facts that are before us, the same conclusion should be reached.”
“We have evidence that before you claimed asylum in the United Kingdom, you were present in or had a connection to [name the safe country or countries]. This may have consequences for whether your claim is admitted to the UK asylum system. We will review your particular circumstances and the evidence in your case, and consider whether it is reasonable to have expected you to have claimed protection in [country or countries] (or to have remained there if you had already claimed or been granted protection), and whether we should consider removing you there or elsewhere.”
“If you wish to submit reasons not already notified to the Home Office why your protection claim should not be treated as inadmissible, or why you should not be required to leave the UK and be removed to the country or countries we may ask to admit you (as mentioned above), you should provide those reasons in writing within 7 calendar days [for detained cases] or 14 calendar days [for non-detained cases] of the date of this letter. After this period ends, we may make an inadmissibility decision on your case, based on the evidence available to us at that time.”
“A distinction does exist between the criteria at paragraph 345B of the Immigration Rules. Criterion (i) is formulated by reference to the asylum applicant’s own circumstances and characteristics, criteria (ii) - (iv) are framed by reference to the general position in the country in question. The real issue is whether that distinction is material for the purposes of setting what is required by law for fair exercise of the paragraph 345C power to remove to a safe third country. Our conclusion is that the distinction between what an asylum claimant may be able to say about his own circumstances and how those might be relevant to whether he is removed to a particular country, and whether that country, generally, complies with its obligations under the Refugee Convention does determine the extent of the legal requirement of procedural fairness in this context. Procedural fairness requires that an asylum claimant should have the opportunity to make representations on matters within the criterion at paragraphs 345B(i) of the Immigration Rules. Those are matters relevant to any decision to remove (self-evidently) and matters the asylum claimant is uniquely placed to consider and explain. Matters known to the asylum claimant may be a relevant consideration; the Home Secretary must take it into account; and the duty to act fairly must apply to require the claimant to have an opportunity to make representations. The same applies to the criteria at paragraph 17(c) of Schedule 3 to the 2004 Act which are also directed to the specific position of the asylum claimant. Criteria (ii) - (iv) within paragraph 345B of the Immigration Rules are different, and require evaluation of whether, generally, the relevant country complies with its obligations under the Refugee Convention. Those matters will go well beyond the circumstances of any one asylum claimant; they are also criteria which the Home Secretary, given the resources available to her, is well-placed to assess. We do not consider that the duty that the Home Secretary act fairly in exercise of the power at paragraph 345C of the Immigration Rules requires an asylum claimant to have the opportunity to make representations on these matters. It is not enough to say that criteria (ii) - (iv) are relevant to the decision to remove and since the asylum claimant is the subject of that decision he must have a legal right to comment on those matters before the decision is made. That is a non-sequitur. The scope of the obligation to act fairly is measured in specifics. This is not to say that any individual faced with the possibility of removal to a third safe country could not seek to persuade the Home Secretary that one or other of criteria (ii) - (iv) was not met, and that if such representations were made, the Home Secretary should have regard to them. But such representations would not be made in exercise of any legal right arising out of an obligation to ensure procedural fairness. Further, to the extent that an asylum claimant may wish to make such representations he has sufficient information about what such representations must be directed to, by reason of paragraph 345B itself. That explains the matters the Home Secretary must consider. The legal duty to act fairly does not require the Home Secretary provide him with all the material available to her; the legal duty to act fairly does not in the present context require that an asylum claimant be put in the position to second-guess the Home Secretary's evaluation on criteria (ii) - (iv).”
“… [F]or the future … the generic issues raised by the Claimants as to why relocation to Rwanda would be unlawful have now been determined by this court (subject to any appeal) and subject to any relevant new information emerging.”
“There have been criticisms of the lack of access to legal advice. Given the scope of the right to make representations in this context, we do not consider that procedural fairness requires that a person who is at risk of action under the Inadmissibility Guidance be provided with legal representation for the right to make representations to be an effective right [my italics]. It is essentially a matter of fact as to why he did not claim asylum in a third country on route to the United Kingdom. It is essentially a matter of fact for him to give his reasons why he should not be removed to Rwanda.”
“… (i) [I]n considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is sufficient flexibility in the system to avoid unfairness); and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts. I would enter a note of caution in relation to (iv). I accept that in most contexts the threshold of showing inherent unfairness is a high one. But this should not be taken to dilute the importance of the principle that only the highest standards of fairness will suffice in the context of asylum appeals.”
“Where individuals request an extension of time to respond to an NOI these requests are considered on a case-by-case basis taking into account the reasons requested for the extension, how long they have had to respond, their access to legal representation and whether it would be reasonable to have expected reasons to have been submitted prior to the extension request. There are no fixed criteria for an extension to be granted or refused. Factors weighing in favour of an extension of time include if someone has not had access to adequate legal advice, if they provide good reasons why they have not been able to make representations (such as illness, trauma or electronic communication failures); factors weighing against include if they had the opportunity to instruct legal representatives and chose not to do so. Discretion has been used in most cases to extend the time period to respond to the NOI. If an extension is refused further representations are generally considered.”
“To assert, without any real evidence to support it, that a general principle of flexibility is ‘deeply ingrained’ is not good enough. Putting the relevant issues in writing - and we assume without question that what is put in writing will be made public - is not simply a bureaucratic reflex. It will concentrate official minds on the proper ingredients of fair procedure; it will enable applicants and their legal representatives to know what these ingredients are taken to be; and if anything is included in or omitted from them which renders the process legally unfair, the courts will be in a position to say so.”
“… [P]rovided that it is operated in a way that recognises the variety of circumstances in which fairness will require an enlargement of the standard timetable - that is to say lawfully operated - the … system itself is not inherently unfair. A written flexibility policy to which officials and representatives alike can work will afford a necessary assurance that the three-day timetable is in truth a guide and not a straitjacket.”
“Contrary to the submission made by some of the Claimants, fairness did not require that the Claimants have the opportunity to make representations in response to some form of provisional view that such circumstances existed. What fairness requires in the context of a decision under paragraph 345A(iii)(b) of the Immigration Rules is an opportunity for the Claimant to provide any explanation he has for not making an asylum claim before reaching the United Kingdom. Fairness did not require the opportunity to make representations in response to the Home Secretary’s evaluation (or provisional evaluation) of that explanation.”
“The court is wrong to conclude that the common law does not require individuals to have access to the SSHD’s provisional conclusions against them.”
“One point to note in the present case is that the access to court submission is parasitic on the unfair system submission. Ms Kilroy accepted that if the period permitted for representations before the decisions was lawful, then removal directions within the standard form would be lawful.”
“The Court’s analysis of the Immigration Rules and para. 17 of Schedule 3 to the 2004 Act is flawed.”
“…paragraph 45 of the judgment said that the issue was whether the [Home Secretary] could lawfully reach the conclusion that the arrangements governing relation to Rwanda would not give rise to a risk of refoulement. The [Home Secretary] could only do that if there was no risk. That is the issue the court then considered from paragraphs 46 to 71.”
“The Home Secretary’s conclusion that Rwanda is a safe third country is legally flawed. The Claimants’ primary contention is that this assessment is contrary toarticle 3 of the ECHR . This rests on: (a) the decision of the [Strasbourg Court] in [Ilias] that a state cannot remove an individual asylum-seeker without determining his asylum claim unless it is established that there are adequate procedures in place in the country to which he is to be removed that will ensure that the individual’s asylum claim is properly determined and he does not face a risk of refoulement to his country of origin; (b) the submission that the removal of the individual Claimants to Rwanda will put them at real risk of article 3 ill-treatment (in breach of the principle recognised in Soering…) and (c) the contention that, systemically, it is inevitable that the policy to remove asylum claimants will lead to occasions when a person will be subjected to article 3 ill-treatment.”
“Next we consider whether the Home Secretary was entitled to conclude that there were sufficient guarantees to ensure that asylum seekers relocated to Rwanda would have their asylum claims properly determined there and did not run a risk of refoulement in accordance with the obligations in Ilias and that Rwanda was a safe third country in accordance with the criteria in paragraph 345B (ii) to (iv) of the Immigration Rules.”
“We must consider it together with all the evidence before us and decide whether, on the totality of that evidence, the Home Secretary's opinion is undermined to the extent that it can be said to be legally flawed. For the reasons we have already given, the Home Secretary did not act unlawfully when reaching the conclusion that the assurances provided by Rwanda in the MOU and Notes Verbales could be relied on. That being so the conclusion that, for the purposes of the criteria at paragraph 345B (ii) to (iv) of the Immigration Rules, Rwanda is a safe third country, was neither irrational nor a breach ofarticle 3 of the ECHR in the sense explained in Ilias.”
“The Court would add that in all cases of removal of an asylum seeker from a Contracting State to a third intermediary country without examination of the asylum requests on the merits, regardless of whether the receiving third country is an EU Member State or not or whether it is a State Party to the Convention or not, it is the duty of the removing State to examine thoroughly the question whether or not there is a real risk of the asylum seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum seekers should not be removed to the third country concerned.”
“the treatment of transferred persons, both prior to and after determination of their asylum claims is provided for in the MoU … and in the Support NV. For the reasons already given, we consider the Rwandan authorities will abide by the terms set out in these documents … The Support NV includes (at paragraph 17) that a mechanism is to be established to allow complaints about accommodation and support provided under the MoU to be raised and addressed. Provision for those arrangements is strong support for the conclusion that the possibility of complaint on such matters, made by persons transferred under the [agreement] does not give rise to any real risk that the consequence of complaint will be Article 3 ill treatment.”
"76. There is no suggestion that any of the individual Claimants … holds any political or other opinion that is adverse to the Rwandan authorities. If there were such evidence it would fall to considered under paragraph 345B(i) of the Immigration Rules. A proper application of that criterion would be sufficient to ensure that were a person to face a real risk of article 3 ill-treatment, he would not be transferred. That being so, the Claimants' case comes to the proposition that, following removal to Rwanda, it is possible that one or more of those transferred might come to hold opinions critical of the Rwandan authorities, and that possibility means that now, the Soering threshold is passed. 77. There is evidence that opportunities for political opposition in Rwanda are very limited and closely regulated. The position is set out in the "
“The next matter under this heading is the Claimants' submission that the policy by which persons whose asylum claims are held to be inadmissible may be returned to Rwanda, is Gillick unlawful. The meaning of the judgment of the House of Lords in Gillick has been considered recently by the Supreme Court in R(A) v Secretary of State for the Home Department[2021] 1 WLR 3931 . The Supreme Court emphasised that the relevant question is whether the policy under consideration positively authorises or approves unlawful conduct (in the present context, a removal decision in breach ofECHR article 3 ). Against this standard the Inadmissibility Policy, which includes the possibility of removal to a safe third country, is not unlawful. Removal decisions depend on the application of paragraph 345B of the Immigration Rules, and the conclusion reached against the criteria in that paragraph that the country concerned is a "safe third country for the particular applicant". If the relevant criteria are met (see above at paragraph 11), removal to that country will not, applying the principles in Ilias (themselves, a particular application of the principle in Soering), give rise to a breach ofarticle 3 of the ECHR . Even if the scope of the policy for this purpose is extended to cover the general conclusion in the9 May 2022 assessment documents and the conclusion reached following consideration of the further evidence filed in these proceedings by the UNHCR, the position remains the same. The conclusion, based on all that material, that generally, asylum claims made in Rwanda by persons transferred pursuant to the terms of the MOU would be entertained and effectively determined was a lawful conclusion. And, in any event the final decision on removal would also have to take account of the asylum claimant's personal circumstances - i.e., the criterion at paragraph 345B(i) of the Immigration Rules.”