You may have seen our most recent article, where we looked in detail at the responses by both the Human Rights Watch and the UN High Commissioner for Refugees to the UK Government’s Rwanda scheme. However, the following article will analyse the latest events, where the Government’s attempt to deport asylum seekers on its inaugural flight to Rwanda fell at the first hurdle.
The first deportation flight to Rwanda was scheduled to take place on 14th June 2022. A number of applications was made for the removal directions to be cancelled to the the European Court of Human Rights in Strasbourg. The applications were made on the basis of individual circumstances along with arguments in relation to legality of the UK-Rwanda partnership.
While the Supreme Court refused an application to appeal, paving the way for the flight, the European Court of Human Rights in Strasbourg suspended the removal directions of the asylum seekers, meaning the flight did not go ahead.
This article will take a look at the differing legal approaches taken towards the Rwanda policy, first by the UK Supreme Court and secondly by the European Court of Human Rights.
First, let’s analyse the decision by the UK Supreme Court.
R (NSK (Iraq)) v Secretary of State for the Home Department
The Applicant made an application to the Supreme Court for Permission to Appeal on the basis that the Court of Appeal had made an error in dismissing the Applicant’s appeal.
The Applicant stated that the Court of Appeal ‘erred in law in holding that the judge was entitled…to proceed on the assumption that the Government of Rwanda would comply with the assurances provided in the memorandum of understanding’.
The UK Supreme Court
The Supreme Court considered the application. They noted that the Court of Appeal judge did attach weight to the assurances given in the memorandum of understanding, however they were entitled to so.
The Supreme Court also stated that a matter for concern was that if the Appellant were to be removed to Rwanda, and the appellant were to succeed at the hearing proposed for July in his challenge to the lawfulness of his removal to Rwanda, he would then be returned to this country.
However, the Government Legal Department informed the Court that if the High Court were to make such an order, they would arrange for the Appellant’s return to the UK.
In view of the above, the Supreme Court refused the application for permission to appeal.
ECHR intervention
We will now examine the decision by the European Court of Human Rights, whose decision grounded the inaugural deportation flight to Rwanda.
The ECHR examined a case involving a 54 year old Iraqi asylum seeker who had crossed the English Channel in a boat (KN vs the United Kingdom). Five days after he had claimed asylum in the UK, citing danger to his life in Iraq, he was served with a notice of intent by the Home Office indicating that they were considering his claim inadmissible and relocating to Rwanda. A letter from the ECHR stated that he should not be removed on the flight which was due to leave for Rwanda on the 14th of June.
KN, the Iraqi asylum seeker in question, was also described in a report by a doctor in his detention centre as a possible victim of torture.
The ECHR granted an urgent interim measure in the case of KN vs the United Kingdom. He was set to be the only person to be on board the flight to Rwanda after a series of individual legal challenges left him as the last one.
Of particular consideration for the ECHR was the fact that asylum seekers transferred to Rwanda wouldn’t have access to fair and efficient procedures for their determination of refugee status. The question of Rwanda’s human rights record and the lack of a legally enforceable mechanism to return the applicant to the UK in the face of successful domestic court challenges also motivated the ECHR decision.
According to a statement issued by the ECHR, the interim measure has been granted “until the domestic courts have had the opportunity to first consider those issues”.
The Home Secretary’s statement
The Home Secretary, Priti Patel made an oral statement on 15th June 2022, following the cancelation of the first deportation flight. She stated that ‘The European Court of Human Rights did not rule that the policy or relocations were unlawful, but they prohibited the removal of three of those on last night’s flight.
The Home Secretary went on to state that ‘While this decision by the Strasbourg court to intervene was disappointing and surprising given the repeated and considered judgements to the contrary in our domestic courts, we remain committed to this policy.’
Our comments
It appears that the Supreme Court in their decisions have placed significant weight on assurances rather than specific details outlining how pragmatically the UK can ensure that they are complying with their duties under international law by sending asylum seekers to another country.
It is clear that the UK Government plans to continue with the Rwanda relocation program. We believe it could take well over a year for a substantive hearing at the European Court of Human Rights. Any attempts of removal would highly be likely be met with injunctions for the time being, and therefore despite the Home Secretary’s optimism, we believe further removals would be postponed in the short term.
While the government has discussed the possibility of withdrawing from the ECHR, this is likely not their preferred option.
The decision taken by the ECHR is a much welcomed outcome, as many had serious concerns as to whether the asylum seekers claims could be processed in compliance with their fundamental human rights, and in accordance with our international obligations.
Should you have any concerns relating to your asylum application, then please contact us and we will be able to advise you on the best steps moving forward.
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