R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent)

LORD REED AND LORD LLOYD-JONES (with whom Lord Hodge, Lord Briggs and Lord Sales agree):

1. Introduction

1. The nature of the issue before the court

1. This appeal is concerned with the Secretary of State’s policy that certain people claiming asylum in the United Kingdom should not have their claims considered here, but should instead be sent to Rwanda in order to claim asylum there. Their claims will then be decided by the Rwandan authorities, with the result that if their claims are successful, they will be granted asylum in Rwanda.

1. In this appeal, the court is required to decide whether the Rwanda policy is lawful. That is a legal question which the court has to decide on the basis of the evidence and established legal principles. The court is not concerned with the political debate surrounding the policy, and nothing in this judgment should be regarded as supporting or opposing any political view of the issues.

1. The legal framework of the policy

1. For asylum claims made on or before 27 June 2022, including those with which these proceedings are concerned, the policy is given effect under paragraphs 345A to 345D of the Immigration Rules (as then in force), made in accordance with section 3 of the Immigration Act 1971 (“the 1971 Act”). In broad terms, under those paragraphs an asylum claim can be ruled inadmissible, with the consequence that the merits of the claim need not be considered, where the asylum seeker had the opportunity to apply for asylum in a safe third country but did not do so. If it is decided that an asylum claim is inadmissible, the asylum seeker can be removed either to the safe third country where the opportunity to make the asylum claim arose, if that country is willing to accept the asylum seeker, or to any other safe third country which agrees to accept him or her. The policy proceeds on the basis that the asylum seekers who are to be removed to Rwanda had the opportunity to apply for asylum in a safe third country (in most cases, France) but did not do so, and that Rwanda is another safe third country which has agreed to accept them, and to which they can therefore be removed.

1. The criteria for designation as a safe third country are set out in paragraph 345B:

   1. 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;

   1. the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;

   1. 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 in that country; and

   1. 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.”

   “A country is a safe third country for a particular applicant, if:

1. The principle of non-refoulement, to which paragraph 345B(ii) refers, is guaranteed by the United Nations 1951 Convention relating to the Status of Refugees (Cmd 9171) and its 1967 Protocol (Cmnd 3906) (“the Refugee Convention”), to which the United Kingdom is a party. As explained below, it requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. In order to qualify as a safe third country under paragraph 345B(ii), Rwanda must accordingly be a country in which the principle of non-refoulement will be respected, ie a country which will not return refugees to another country where their life or freedom would be threatened. As we shall explain, refoulement is also prohibited under a number of other international conventions which the United Kingdom has ratified. There are also several Acts of Parliament which protect refugees against refoulement.

1. The Immigration Rules are supplemented by guidance to Home Office case workers, known as Country Policy Information Notes (“CPINs”). A CPIN entitled “Inadmissibility - Safe Third Country Cases”, published by the Secretary of State on 9 May 2022, explains arrangements for the transfer and processing of asylum seekers which have been entered into by the governments of the United Kingdom and Rwanda, known as the Migration and Economic Development Partnership (“MEDP”), and advises that certain categories of asylum seeker can be removed to Rwanda in accordance with paragraphs 345A and 345B of the Immigration Rules. Another CPIN published on the same date, entitled “Review of asylum processing – Rwanda: assessment”, considers the processing of claims for asylum in Rwanda, and advises that there are no substantial grounds for believing that a person, if relocated to Rwanda, would face a real risk of treatment that is likely to be contrary to article 3 of the European Convention on Human Rights (“the ECHR”) by virtue inter alia of refoulement or shortcomings in the asylum process. Article 3 prohibits torture and inhuman or degrading treatment or punishment. As we explain in para 28 below, by enacting the Human Rights Act 1998 (“the Human Rights Act”), Parliament has given the ECHR effect in domestic law.

1. At the time of the decisions with which these proceedings are concerned, it was also necessary, in order for an asylum seeker to be removed to another country while an asylum claim was pending, for the Secretary of State to certify, under paragraph 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”), that the country in question was a place where the asylum seeker’s life and liberty would not be threatened by reason of race, religion, nationality, membership of a particular social group or political opinion, and from which the asylum seeker would not be sent to another state otherwise than in accordance with the Refugee Convention.

1. The MEDP

1. The MEDP comprises a Memorandum of Understanding (“MOU”) between the governments of the United Kingdom and Rwanda, entered into on 13 April 2022, and two diplomatic Notes Verbales regarding “the asylum process of transferred individuals” and “the reception and accommodation of transferred individuals”, executed by the government of Rwanda on the same date. As we shall explain, these documents are critical to the Secretary of State’s assessment that Rwanda is a safe third country for the purposes of paragraph 345B of the Immigration Rules. It is unnecessary to set out their terms in full, but we should draw attention to certain provisions.

1. Under paragraph 9 of the MOU, Rwanda undertakes that “it will treat each Relocated Individual, and process their claim for asylum, in accordance with the Refugee Convention, Rwandan immigration laws and international and Rwandan standards, including under international and Rwandan human rights law, and including, but not limited to ensuring their protection from inhuman and degrading treatment and refoulement”. Paragraph 9 also sets out a number of procedural guarantees, including access to an interpreter and to procedural or legal assistance, and to an independent and impartial process of appeal. Paragraph 10 makes provision for persons whose asylum claims are refused. Unless they are found to have another humanitarian protection need, or are granted permission to remain in Rwanda under its domestic immigration law, they are to be treated in accordance with paragraph 10.4:

   1. 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.”

1. Under paragraph 15 of the MOU, the United Kingdom and Rwandan governments agree to establish a monitoring committee which will report on the implementation of the arrangement, including the processing of asylum claims by the Rwandan authorities. Under paragraph 16, the United Kingdom has agreed that “a portion of Rwanda’s most vulnerable refugees” will be settled in the United Kingdom. Under paragraph 21, a joint committee of representatives of the two governments is to be formed, which will meet at least once every six months. Its remit will include monitoring the implementation of the arrangement. Financial arrangements have also been made between the two governments, which are referred to in paragraph 19. It appears from the evidence that the United Kingdom paid £20 million to Rwanda in April 2022. A further £120 million was paid by the United Kingdom during that month as a contribution to a fund intended to promote economic development in Rwanda. Further payments to the fund are conditional on Rwanda’s compliance with the terms of the MEDP.

1. It is also relevant to note that the Note Verbale concerning the asylum process of transferred individuals contains provisions concerning the procedures to be followed by the Rwandan authorities in dealing with asylum claims. They include provisions designed to address certain deficiencies in Rwandan practice which were identified by Home Office officials, such as failures to provide written decisions. Accordingly, paragraph 4.8 provides that relocated individuals will be notified in writing of the decision that has been taken on their asylum claim. Paragraph 5.1 provides that a relocated individual can appeal to the responsible minister in the Rwandan government against a decision refusing their claim. Paragraph 5.3 provides that a person whose appeal to the minister is refused can appeal to the High Court of Rwanda.

1. The MOU provides that it is not binding in international law (paragraph 1.6), that it does not create or confer any right on any individual, and that compliance with it is not justiciable in any court of law (paragraph 2.2). The Notes Verbales contain similar provisions.

1. The legal proceedings

1. In these proceedings, a number of asylum seekers challenged inadmissibility and removal decisions made by the Secretary of State under paragraphs 345A to 345D of the Immigration Rules between May and July 2022. The effect of the decisions was that their claims should not be determined in the United Kingdom and that they should instead be removed to Rwanda in order for their claims to be decided by the Rwandan authorities, with asylum being provided in Rwanda to any claimants who were successful. The decisions proceeded on the basis that Rwanda was a safe third country, and the Secretary of State issued certificates to that effect under paragraph 17 of Schedule 3 to the 2004 Act, which were also the subject of challenge. A number of interested organisations took part in the proceedings before the courts below, and the United Nations High Commissioner for Refugees (“UNHCR”), the United Nations Refugee Agency, was permitted to intervene.

1. The Divisional Court (Lewis LJ and Swift J) held that certain of the inadmissibility and removal decisions should be quashed on the ground that the way in which the Secretary of State went about the implementation of the policy in those cases was procedurally flawed: [2022] EWHC 3230 (Admin); [2023] HRLR 4. It rejected a wider challenge on the ground that the Secretary of State’s policy was unlawful.

1. On appeal, the Court of Appeal, by a majority (Sir Geoffrey Vos MR and Underhill LJ, Lord Burnett of Maldon CJ dissenting), upheld the claimants’ challenge to the lawfulness of the policy, and held that on the evidence before the Divisional Court there were substantial grounds for believing, notwithstanding the guarantees and assurances given, that (a) there were real risks that asylum claims would not be properly determined by the Rwandan authorities, and (b) that in consequence there were real risks of refoulement, and that so long as such grounds existed any removals under the MEDP would contravene section 6 of the Human Rights Act: [2023] EWCA Civ 745; [2023] 1 WLR 3103, particularly at paras 109-110 and 273-286. The court also concluded (unanimously) that the Secretary of State should not have certified the claims under paragraph 17 of Schedule 3 to the 2004 Act: paras 117, 302 and 480.

1. The Court of Appeal granted the Secretary of State permission to appeal to this court against its decision. It also granted one of the claimants permission to cross-appeal against its rejection of an argument that the policy was in violation of retained EU law, maintained in force by the European Union (Withdrawal) Act 2018 ("the 2018 Act"), namely Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status (“the Procedures Directive”). That directive requires that the removal of asylum seekers to a safe third country must be in accordance with “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” (article 27(2)). (No question has been raised in these proceedings as to whether the removal of asylum seekers to a state with which they have no connection is compatible with the ECHR.)

1. This court subsequently granted some of the claimants permission to cross-appeal in respect of two other grounds which had been rejected by the Divisional Court and the Court of Appeal. The first was that the removal of asylum seekers to Rwanda was unlawful under section 6 of the Human Rights Act because they were at risk of ill-treatment in that country, contrary to article 3 of the ECHR. The second was that the Secretary of State had failed to consider the risk of refoulement with the degree of care required under the common law or under the Human Rights Act. In the event, as we shall explain, those grounds of appeal did not feature prominently at the hearing of the appeal, and it is unnecessary for us to express a concluded view about them. We shall accordingly focus primarily on the grounds concerning (1) refoulement and (2) retained EU law.

1. The factual background is fully set out in the judgments below and need not be repeated at length, although it will be necessary for us to consider aspects of the evidence in some detail.

1. Refoulement

1. The legal background

1. International law

1. Under international law, states have the right to control the entry, residence and expulsion of aliens, and to counter attempts to circumvent immigration restrictions, subject to their treaty obligations and to any relevant principles of customary international law. One limitation of the right to expel aliens is the principle of non-refoulement, which is enshrined in several international treaties which the United Kingdom has ratified. As will appear, the term bears slightly different meanings in different contexts.

1. The Refugee Convention, which has 146 states parties including the United Kingdom, provides in article 33(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.”

Article 33(1) has long been interpreted by the courts of this country as prohibiting not only the direct return of refugees to the country where they fear persecution, but also their indirect return via a third country: R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 532.

1. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (“UNCAT”), which has 173 states parties including the United Kingdom, provides in article 3(1):

   “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

1. The United Nations International Covenant on Civil and Political Rights of 1966 (“ICCPR”), also with 173 states parties including the United Kingdom, is interpreted by the United Nations Human Rights Committee, which monitors implementation of the Covenant, as imposing a similar obligation:

   “[T]he article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.”

(General Comment 31 (2004), para 12). Article 6 of the Covenant protects the right to life, and article 7 prohibits torture or cruel, inhuman or degrading treatment or punishment.

1. The ECHR, with 46 states parties including the United Kingdom, is interpreted in the same way. It has been understood since the 1989 judgment of the European Court of Human Rights (“the European Court”) in Soering v United Kingdom (1989) 11 EHRR 439 (“Soering”) that the duty of the contracting parties under article 3 not to subject persons to torture or to inhuman or degrading treatment also imports an obligation not to remove persons to other states where there are substantial grounds for believing that they would be at real risk of such ill-treatment. This is essentially the same approach as is adopted under the UNCAT test (para 21 above) and in relation to the ICCPR (para 22 above). It is also similar to the “real risk” test long adopted by domestic courts in relation to the “safe third country” provisions of our domestic law, as explained at para 32 below. Soering was a case concerned with extradition, but the principle was soon applied to removal cases generally.

1. As a consequence, article 3 prohibits the expulsion of asylum seekers to countries where they face the risk of refoulement (direct or indirect) to their country of origin: see MSS v Belgium and Greece (2011) 53 EHRR 2 (a case concerned with the removal of an asylum seeker to a country through which he had transited). In relation to that risk, the European Court observed in Ilias v Hungary (2019) 71 EHRR 6 (another case concerned with the removal of asylum seekers to a country through which they had transited) at para 131 that “the main issue … is whether or not the individual will have access to an adequate asylum procedure in the receiving third country”. That issue is important in cases of this kind because if asylum seekers do not have access to such a procedure there will be a real risk of genuine refugees being refouled, either because their claims are not considered at all or because they are not determined properly. Whether asylum seekers removed to Rwanda would have access to an adequate asylum procedure is therefore one of the principal issues in the present proceedings.

1. It may be that the principle of non-refoulement also forms part of customary international law. The United Kingdom has subscribed to this view, along with the other states parties to the Refugee Convention, in the 2001 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (UN Doc HCR/MMSP/2001/09). The fourth recital to the preamble to the declaration acknowledged the continuing relevance and resilience of the international regime of rights and principles established for the protection of refugees, “including at its core the principle of non-refoulement, whose applicability is embedded in customary international law”. The significance of non-refoulment being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect. However, as we have not been addressed on this matter, we do not rely on it in our reasoning.

1. The principle of non-refoulement is therefore given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. It is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country’s reputation for developing and upholding the rule of law.

1. Domestic law

1. The principle of non-refoulement has also been given effect in our domestic law by a number of statutes enacted by Parliament. First, section 2 of the Asylum and Immigration Appeals Act 1993 (“the 1993 Act”) provides:

   “Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”

In that context, “the Convention” is defined in section 1 as meaning the Refugee Convention. The Immigration Rules are the rules laid down by the Secretary of State as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons required to have leave to enter: section 3 of the 1971 Act (quoted in para 122 below). Asylum claims fall within the scope of that provision, since they are claims for leave to remain in the United Kingdom, made by persons who require leave to enter. It is therefore unlawful, under section 2 of the 1993 Act, for the Secretary of State to lay down a rule as to practice in relation to asylum claims which would be contrary to the principle of non-refoulement laid down in article 33(1) of the Refugee Convention. In the event, as we have explained, paragraph 345B of the Immigration Rules fulfils that requirement by providing that a country is a safe third country only if, inter alia, “the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention”.

1. Secondly, the Human Rights Act gives domestic effect to the ECHR. Under section 6, it is unlawful for a public authority to act in a way which is incompatible with a Convention right, such as the right guaranteed by article 3 of the ECHR. The Secretary of State is a public authority for this purpose. Section 2 requires domestic courts to take into account the judgments of the European Court when determining a question which has arisen in connection with a right guaranteed by the ECHR. Domestic courts, including this court and its predecessor, the Appellate Committee of the House of Lords, have long applied the Human Rights Act in relation to the removal of persons from the United Kingdom to other countries in accordance with the principles laid down by the European Court in cases such as Soering and MSS v Belgium and Greece. Those principles are not questioned by any party to this appeal. It is therefore unlawful, under section 6 of the Human Rights Act, for the Secretary of State to remove asylum seekers to countries where there are substantial grounds to believe that they would be at real risk of ill-treatment by reason of refoulement.

1. Thirdly, section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), read together with section 84(1) of that Act, confers a right of appeal against the refusal of a protection claim (defined by section 82(2) as including a claim that the removal of a person from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention) on the ground that removal of the person from the United Kingdom would breach the United Kingdom’s obligations under that Convention. Section 82(1), read together with section 84(2), also confers a right of appeal against the refusal of a human rights claim (defined by section 113(1) as a claim that to remove the person from the United Kingdom would be unlawful under the Human Rights Act) on the ground that removal of the person from the United Kingdom would be unlawful under section 6 of that Act. The principle of non-refoulement is therefore given effect by sections 82 and 84 of the 2002 Act, both as it is set out in the Refugee Convention and as it applies under the Human Rights Act.

1. It is also relevant to note section 94(7) of the 2002 Act, under which, read with section 94(1), the Secretary of State may certify a protection claim or human rights claim as clearly unfounded, and thereby remove the claimant’s rights of appeal, if:

   1. it is proposed to remove the person to a country of which he is not a national or citizen, and

   1. there is no reason to believe that the person’s rights under the Human Rights Convention [ie the ECHR] will be breached in that country.”

      “In determining whether a person in relation to whom a certificate has been issued under subsection (7) may be removed from the United Kingdom, the country specified in the certificate is to be regarded as—

      1. a place where a person’s life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion, and

      1. a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention or with the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection.”

Section 94(8) provides:

The premise of these provisions appears to be that if there is no reason to believe that a person’s rights under the ECHR will be breached in the country to which he is proposed to be removed, then it follows that the person will not be removed from that country to another country otherwise than in accordance with the Refugee Convention. That is consistent with the view that the ECHR protects against refoulement, as the European Court and domestic courts have held.

1. Fourthly, as we have explained, paragraph 17 of Schedule 3 to the 2004 Act enables the Secretary of State to certify, where it is proposed to remove an asylum seeker to a country (“a specified state”) of which he is not a national or citizen, that:

   1. in the Secretary of State’s opinion the specified State is a place –

      1. 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

      1. from which the person will not be sent to another State otherwise than in accordance with the Refugee Convention.”

1. Paragraph 17(c)(ii) reflects the principle of non-refoulement as set out in article 33(1) of the Refugee Convention. At the time of the decisions with which these proceedings are concerned, such a certificate had the effect, under paragraph 18, of disapplying section 77 of the 2002 Act, which prohibits the removal of an asylum seeker from the United Kingdom while his or her claim for asylum is pending (paragraph 18 has since been repealed and replaced by corresponding provisions in Schedule 4 to the Nationality and Borders Act 2022, which amend section 77 of the 2002 Act; but paragraph 18 continues to apply to the decisions with which these proceedings are concerned). The Divisional Court accordingly considered that certification under paragraph 17 was an integral part of the Secretary of State’s decisions to remove asylum claimants to Rwanda: para 12. It has long been held that a certificate of the kind for which paragraph 17(c)(ii) provides can be issued only where there is no real risk that the asylum seeker will be sent to another country otherwise than in accordance with the Refugee Convention: see, for example, R v Secretary of State for the Home Department, Ex p Canbolat [1997] 1 WLR 1569.

1. Asylum seekers are thus protected against refoulement not only by the Human Rights Act but also by provisions in the 1993 Act, the 2002 Act and the 2004 Act, under which Parliament has given effect to the Refugee Convention as well as the ECHR.

1. The issues arising in relation to refoulement in this appeal

1. As we have explained, the Divisional Court held that the Secretary of State’s policy was lawful. The Court of Appeal reversed that decision, by a majority. They did so on the basis, first, that the Divisional Court had applied the wrong legal test when considering the refoulement issue. The correct test, derived from Soering, requires the court to decide for itself whether there are substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill treatment, as a consequence of refoulement to another country. The assessment is one which must be made by the court. The majority of the Court of Appeal considered that the Divisional Court had mistakenly dealt with the issue on the basis that the court’s role was confined to deciding whether the Secretary of State had been entitled to form the view that there was no such risk. The Lord Chief Justice considered that the Divisional Court had not made that mistake.

1. The majority of the Court of Appeal also considered that the Divisional Court had erred in its assessment of aspects of the evidence, most notably by failing to address the evidence of UNHCR in relation to (i) defects in the processing of asylum claims by the Rwandan authorities, (ii) prior examples of refoulement of asylum seekers from Rwanda to other countries, and (iii) the Rwandan government’s failure to abide by assurances (including an assurance of non-refoulement) set out in an earlier arrangement of a similar kind which it had entered into with Israel. Again, the Lord Chief Justice disagreed.

1. On the basis that the Divisional Court had applied the wrong legal test, or in any event had erred in its approach to the evidence, the majority of the Court of Appeal carried out their own assessment of the evidence. They concluded that there were substantial grounds for believing that there was a real risk that asylum seekers removed to Rwanda would be subject to refoulement, as a consequence of the Rwandan authorities’ failure to determine their claims for asylum accurately and fairly. The Secretary of State’s policy was accordingly held to be unlawful.

1. Against that background, the issues raised by the Secretary of State in the appeal against the Court of Appeal’s decision in relation to refoulement are as follows:

   1. (1)Whether the majority of the Court of Appeal was correct to conclude that the Divisional Court had applied the incorrect legal test.

   1. (2)If the Divisional Court did apply the correct test, whether the Court of Appeal was entitled to interfere with its conclusion.

   1. (3)If the Divisional Court did not apply the correct test, or there was another basis for interfering with its conclusion, so that the Court of Appeal was permitted to answer the question afresh for itself, whether the Court of Appeal was wrong to conclude that, on the evidence before the Divisional Court, there were substantial grounds for thinking that asylum seekers would face a real risk of ill-treatment (in the form of refoulement) following removal to Rwanda due to the inadequacy of the Rwandan system for refugee status determination (as the majority found) or not (as the Lord Chief Justice concluded), including by giving insufficient weight to HM Government’s assessment of the likelihood of the government of Rwanda abiding by its assurances.

We shall address each of these issues in turn.

1. Issue 1 – whether the Divisional Court applied the correct test

1. The test to be applied by the court in relation to the issue of refoulement is, as we have explained, whether there are substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill treatment, as a consequence of refoulement to another country. As we shall explain, there was evidence before the Divisional Court which supported the existence of such a risk, including evidence from UNHCR. On the other hand, the Secretary of State relied on the Rwandan government’s assurances that asylum seekers would have their claims determined in accordance with the arrangements set out in the MEDP. In those circumstances, the Divisional Court had to consider whether in the light of all the evidence, including the assurances given by the Rwandan government, there were substantial grounds for believing that there was a real risk of refoulement.

1. Several passages in the judgment of the Divisional Court suggest that the members of the court misunderstood their function. For example, they began their consideration of the adequacy of Rwanda’s asylum system, at para 62 of their judgment, by stating:

   “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 ...”.

That statement seems to suggest that the court saw its function as reviewing the Secretary of State’s assessment and deciding whether it was a tenable view, rather than making its own assessment of the grounds for apprehending a risk of refoulement in the light of the evidence as a whole. Similarly, at para 70, the Divisional Court defined “the question we must address” as “whether, notwithstanding the opinion the UNHCR has now expressed, the Home Secretary was entitled to hold the contrary opinion”. Many other passages containing similar statements could be cited. These are not accurate ways of expressing thetest which the court was required to apply. The question whether the Secretary of State was entitled to reach a particular conclusion is a different question from whether the court assesses that there are in fact substantial grounds for thinking that there is a real risk of refoulement.

1. On the other hand, the court recognised at para 63 of its judgment that it had to carry out the necessary assessment itself. In that context, the court’s references to the question whether the Secretary of State was entitled to conclude that Rwanda’s assurances provided a sufficient guarantee might be interpreted as a way, albeit one which was misleadingly expressed, of approaching the critical question of whether there were, in the opinion of the court, substantial grounds for believing that there was a real risk of refoulement. In a situation where the absence of such a risk depended on the reliability of the assurances, the latter issue (as assessed by the court rather than by the Secretary of State) was a very important factor in the application of the Soering test. As the divergent interpretations in the Court of Appeal would suggest, it is possible to read the Divisional Court’s judgment in more than one way.

1. In these circumstances, we do not find it easy to determine what test the Divisional Court applied. However, it is not necessary for this court to reach a concluded view as to which interpretation of the judgment should be preferred. For the reasons which we shall explain when we come to issue 2, we are satisfied that the Court of Appeal was entitled in any event to interfere with the Divisional Court’s conclusion and to consider the question for itself.

1. Issue 2 - whether the Court of Appeal was entitled to interfere with the Divisional Court’s conclusion

1. We are in no doubt that, regardless of whether the Divisional Court applied the correct legal test, the Court of Appeal was in any event entitled to interfere with its conclusion. That is because the Divisional Court erred in its treatment of the evidence bearing on the risk of refoulement, essentially by failing to engage with the evidence of UNHCR concerning problems affecting the processing of asylum claims in Rwanda. As we have explained, an assessment of whether there is a risk of refoulement of asylum seekers removed to Rwanda requires an examination of how the asylum procedure operates there, in order to ensure that it affords sufficient guarantees that asylum seekers are not at risk of being removed to their country of origin without a proper evaluation of their claims.

1. In fairness to the Divisional Court, we should point out that it had to deal with a greater number and range of issues than either the Court of Appeal or this court, and that it produced its judgment at commendable speed, reflecting the public importance of the questions raised. Inevitably, this appeal has focused on the issue on which the Divisional Court is alleged to have erred, rather than on the many more issues on which its decision is unchallenged.

1. The correct legal approach to the evidence

1. There are a number of decisions of the European Court and of domestic courts which bear on the correct approach to adopt to the evidence in a case of the present kind. First, the judgment of the European Court in Ilias v Hungary makes it clear that a state party cannot remove asylum seekers to a third country without determining their asylum status unless it has established that there are adequate procedures in place in that country to ensure that their asylum claims are properly determined and that they do not face a risk of refoulement to their country of origin. The court stated in that case (para 134):

   “… 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 … 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 [of the ECHR] implies a duty that the asylum-seekers should not be removed to the third country concerned.”

1. The European Court made it clear that this requires an assessment of how the asylum system in the receiving state operates in practice, having regard to deficiencies identified by bodies such as UNHCR. In that regard it stated (para 141):

   “… the national authorities … must carry out of their own motion an up-to-date assessment, notably, of the accessibility and functioning of the receiving country’s asylum system and the safeguards it affords in practice. The assessment must be conducted primarily with reference to the facts which were known to the national authorities at the time of expulsion but it is the duty of those authorities to seek all relevant generally available information to that effect. General deficiencies well documented in authoritative reports, notably of the UNHCR, Council of Europe and EU bodies are in principle considered to have been known. The expelling state cannot merely assume that the asylum-seeker will be treated in the receiving third country in conformity with the Convention standards but, on the contrary, must first verify how the authorities of that country apply their legislation on asylum in practice.”

1. The Secretary of State relies on the assurances provided by the Rwandan government in the MEDP as meeting any concerns arising from the evidence about the past and present operation of the Rwandan asylum system. In essence, the Secretary of State submits that, notwithstanding any problems that there may have been in the past or that may remain at present, the MEDP sets out arrangements for the future which provide adequate safeguards against refoulement, and the Rwandan government can be relied on to fulfil its undertaking to process the claims in accordance with those arrangements. It is therefore necessary to refer to authorities concerned with the approach to be adopted where the safety of a third country depends on assurances given by its government about the treatment which individuals who are sent there will receive.

1. The approach to be adopted in circumstances of that kind was considered by the European Court in Othman v United Kingdom (2012) 55 EHRR 1 (“Othman”). The case concerned the sufficiency of assurances given by the Kingdom of Jordan to the United Kingdom in the context of a contention that deporting the applicant to Jordan would put him at real risk of ill-treatment. The court observed at para 187 that assurances are not in themselves sufficient to ensure adequate protection against the risk of ill treatment:

   “There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving state depends, in each case, on the circumstances prevailing at the material time.”

1. In that regard, the court listed at para 189 a number of factors which were relevant. The list was not intended to be exhaustive, and in some respects reflected the particular circumstances of the case before the court. What is more important, in the context of the present case, is the European Court’s emphasis on the need to carry out a fact-sensitive examination of how assurances will operate in practice, in the circumstances prevailing at the material time. Several of the factors mentioned are, however, relevant to the present case: for example, the disclosure of the terms of the assurances to the court, the general human rights situation in the receiving state, the receiving state’s laws and practices, its record in abiding by similar assurances, the existence of monitoring mechanisms, and the examination of the reliability of the assurances by the domestic courts of the sending state.

1. The approach to be adopted where diplomatic assurances are relied on was discussed by this court more recently in Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14; [2021] 1 WLR 2569. There, the court considered the sufficiency of assurances given by the government of Hungary to the United Kingdom in the context of a contention that extraditing Mr Zabolotnyi to Hungary would put him at real risk of ill-treatment. It was held that the court was required to undertake a free evaluation of the assurance, which required the court to examine and assess all relevant evidence (para 50). In particular, past breaches of similar assurances by the requesting state, whether provided to the United Kingdom or to a third state, were relevant to the question whether the requesting state could be relied upon to comply with its assurance on the present occasion (ibid). In that regard, Lord Lloyd-Jones stated, in a judgment with which the other members of the court agreed (paras 46-47):

   1. … In deciding whether an assurance can be relied upon, evidence of past compliance or non-compliance with an earlier assurance will obviously be relevant. A state’s failure to fulfil assurances in the past may be a powerful reason to disbelieve that they will be fulfilled in the future ....

   1. I am unable to accept that a sound distinction can be drawn in this regard between breach of a prior assurance given to the United Kingdom and breach of a prior assurance given to a third state. On the contrary, the fact of a prior breach of such an assurance, if established, is clearly relevant regardless of the identity of the state to which it was provided. As Mr Hall submits on behalf of the appellant, such a distinction would be illogical and unprincipled. The same requesting state is acting in the same context and there is no material distinction between a willingness to breach assurances given to state A and assurances given to state B.”

1. The approach adopted by the Divisional Court

1. The Divisional Court did not follow this approach in its consideration of the evidence. As we shall explain when we discuss Issue 3, the Divisional Court had before it evidence that there were serious and systemic defects in Rwanda’s procedures and institutions for processing asylum claims; that it had a history of acting in breach of the principle of non-refoulement, which had continued during the negotiation of the MEDP and following its execution; and that it had, in the recent past, failed to abide by similar assurances which it had given to another foreign government. The Divisional Court did not engage with this evidence, and consequently failed to examine the reliability of the assurances given by Rwanda in the light of that evidence.

1. Instead, the Divisional Court began its consideration of the issue by stating that its approach “will rest on a recognition of the expertise that resides in the executive to evaluate the worth of promises made by a friendly foreign state” (para 63). It gave three reasons why the Secretary of State was entitled to rely on the assurances. First, the United Kingdom and Rwanda had a well-established relationship (para 64). Secondly, the terms of the MEDP were specific and detailed (para 65). Thirdly, a senior official at the Foreign, Commonwealth and Development Office (“the FCDO”) stated in a witness statement that the government was confident that Rwanda would honour its obligations under the MEDP (para 66). The last of these reasons was crucial. The court said that it could go behind that opinion “only if there were compelling evidence to the contrary”.

1. We consider that that was a mistaken approach. As authorities such as Othman and Zabolotnyi make clear, the court has to make its own assessment of whether there are substantial grounds for believing that there is a real risk of refoulement. It is not required to accept the government’s evaluation of assurances unless there is compelling evidence to the contrary. Of course, the court will attach weight to the government’s view as to the value of assurances given by another country, particularly where its view reflects the advice of officials with relevant experience and expertise. The FCDO in particular has long experience of diplomatic relations with other countries, and the advice of its officials can assist ministers to reach an informed view as to the likelihood of the country in question complying with assurances. Other departments may also have officials who are well-qualified to give such advice. Ministers do not, however, necessarily act on the advice of their officials.

1. In the present case, following the initial stage of identifying potential partner countries (when FCDO officials advised that Rwanda should not be prioritised), advice came primarily from Home Office officials. They prepared the CPINs mentioned in para 6 above, on the basis of desk-based research into the Rwandan asylum system, and on what they were told during two short visits to Rwanda in January and March 2022. Further work was also done after the MEDP had been concluded. According to the evidence of Home Office officials, the CPINs underpinned the government’s decision to enter into the MEDP. However, possibly because of the pressures under which they had to work, the officials who prepared the CPINs relied heavily on assurances by the Rwandan government, without close examination of supporting evidence, or consideration of publicly available material which placed some of those assurances in question.

1. Those shortcomings were highlighted when a review of the CPINs was undertaken in July 2022 for the Independent Advisory Group on Country Information (“IAGCI”), which provides advice to the Chief Inspector of Borders and Immigration in order to allow him to discharge his duty under section 48(2)(j) of the UK Borders Act 2007. The researcher responsible for the review criticised aspects of the way in which the CPINs were prepared, including “very limited critical information on the Rwandan asylum system” and “fundamental gaps of information and unanswered questions with regards to procedural practicalities and implications”.

1. As that evidence indicates, the government is not necessarily the only or the most reliable source of evidence about matters which may affect the risk of refoulement: such as, to mention some of the factors referred to in Othman and Zabolotnyi, the general human rights situation in the receiving state, the receiving state’s practices, and its record in abiding by similar assurances, whether given to the United Kingdom or to other states. Where evidence bearing on factors such as these is adduced from sources other than the government, the court has to consider it along with the government’s assessment of any assurances given. The court does not necessarily have to resolve conflicts in the evidence: the question it has to decide is not whether asylum seekers removed to the country in question would in fact be subjected to refoulement, but whether there are substantial grounds for believing that they would be at risk of refoulement. In deciding that question, the court has to form its own view in the light of the evidence as a whole. In doing so, the court brings to bear its own expertise and experience: weighing competing bodies of evidence, and assessing whether there are grounds for apprehending a risk, are familiar judicial functions.

1. We are therefore unable to accept the suggestion, made on behalf of the Secretary of State, that assessing the value of assurances given by another country, in the present context, is analogous to assessing whether a particular course of action is in the interests of national security, and that the role of the court is correspondingly limited, as explained in cases such as Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 920 (“Rehman”) and R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] AC 765 (“Begum”). In Rehman itself, the House of Lords made it clear that, even in the context of questions of national security, an appeal to the courts may turn upon issues which at no point lie within the exclusive province of the executive. As Lord Hoffmann stated (para 54):

   “A good example is the question … as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative.” (emphasis added)

Similarly, in Begum Lord Reed (with whose judgment the other members of the court agreed) stated (para 69) that “if a question arises as to whether the Secretary of State has acted incompatibly with the appellant’s Convention rights, contrary to section 6 of the Human Rights Act, [the court] has to determine that matter objectively on the basis of its own assessment”.

1. The present case raises an issue precisely of the kind contemplated in those citations. As we have explained, the court is itself required by law to form a view as to whether there are substantial grounds for believing that asylum seekers who are removed to Rwanda are at risk of refoulement, in the light of all the evidence bearing on that issue. The government’s assessment of whether there is such a risk is an important element of that evidence, but the court is bound to consider the question in the light of the evidence as a whole and to reach its own conclusion.

1. Furthermore, as the Lord Chief Justice pointed out in the present case (para 471), even if the court is not institutionally as well equipped as the government to carry out an evaluation of a diplomatic assurance, the position is different “where the assessment of future conduct engages practical considerations which arise from past conduct”. As he observed (ibid):

   “In this case there is very detailed evidence of the way in which the Rwandan asylum system has operated when considering individual claims before the summer of 2022. There were undoubted deficiencies. Whether they are capable of being made good is not an issue on which the government has special institutional expertise.”

1. As we have explained, however, the Divisional Court decided that it could go behind the government’s opinion only if there were compelling evidence to the contrary. Following that approach, the Divisional Court did not consider that such evidence existed (para 66). In that regard, it referred to two matters which had been raised by UNHCR.

1. The first was evidence that Rwanda had failed to abide by assurances which it had given to the government of Israel under an agreement for the removal of asylum seekers from Israel to Rwanda. In that regard, the Divisional Court stated (para 68):

   “There is no evidence that during its negotiations with the Rwandan government, the United Kingdom government sought to investigate either the terms of the Rwanda/Israel agreement or the way it had worked in practice. It is also apparent from [a FCDO official’s] statement that the merits of the MOU and Notes Verbales have been assessed on their own terms, not by way of comparison with the Rwanda/Israel agreement. This was a permissible approach; we do not consider it discloses any error of law.”

1. This was an inadequate treatment of the evidence in question, which we shall discuss when dealing with Issue 3 below. Evidence of a failure to abide by earlier assurances, given to another country in a similar context, was relevant to the assessment of risk, as was noted in Zabolotnyi at para 46 (cited at para 49 above). The government’s failure to consider it did not mean that it could or should be ignored by the court.

1. The second matter raised by UNHCR was evidence of Rwanda’s history of refoulement, and of defects in its asylum system, in the light of which UNHCR concluded that Rwanda could not be relied upon to comply with its obligations under the Refugee Convention (or, therefore, with the obligations it had assumed under the MEDP). The Divisional Court was dismissive of this evidence, and did not attempt to engage with it. It stated at para 71 that the evidence of UNHCR “carries no special weight”. It went on to state that the government’s conclusion that Rwanda would act in accordance with the terms of the MOU and the Notes Verbales “rests on HM Government’s experience of bilateral relations extending over almost 25 years, and the specific experience of negotiating the MOU over a number of months in 2022”. It stated that it had to decide whether, on the totality of the evidence, the Secretary of State’s opinion was undermined to the extent that it could be said to be legally flawed, and concluded that it was not.

1. This again was an inadequate treatment of the evidence in question, which we shall discuss when dealing with Issue 3. Evidence that Rwanda had a history of refoulement, and of defects in Rwanda’s asylum system, was relevant to an assessment of whether persons removed to Rwanda in order for their claims to asylum to be decided by the Rwandan authorities were at risk of refoulement. As the European Court stated in Ilias v Hungary (para 134, cited at para 44 above), 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. It is clear from the evidence that government officials made serious efforts to comply with that duty, although they were hampered by circumstances, including restrictions on their ability to hold discussions with UNHCR and other non-governmental organisations. The same duty also applies to the courts, as an organ of the state, when the issue is raised before them.

1. The Divisional Court’s view that the evidence of UNHCR carried no special weight was a further error. Of course, the weight to be attached to evidence is always a matter for the court, and will depend on the circumstances. However, a number of factors combined in the present case to render the evidence of UNHCR of particular significance.

1. The first relevant factor is the status and role of UNHCR. It is entrusted by the United Nations General Assembly with supervision of the interpretation and application of the Refugee Convention: see the Statute of the Office of the United Nations High Commissioner for Refugees, annexed to UN General Assembly Resolution 428(V), 14 December 1950. Under article 35 of the Refugee Convention, states parties undertake to co-operate with UNHCR in the exercise of its functions, and to facilitate its duty of supervising the application of the provisions of the Convention. Reflecting those circumstances, it is well established that UNHCR’s guidance concerning the interpretation and application of the Refugee Convention “should be accorded considerable weight”: Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, para 36. In IA (Iran) v Secretary of State for the Home Department [2014] UKSC 6; [2014] 1 WLR 384, para 44, this court stated that “the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision-making in the field of refugee status determinations must invest its decisions with considerable authority”.

1. The second factor, mentioned in that dictum, is UNHCR’s expertise and experience. That factor was also emphasised by this court in R (EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12; [2014] AC 1321, when considering the approach which should be adopted to evidence provided by UNHCR in relation to the risks involved in removing asylum seekers to another country. Lord Kerr of Tonaghmore, with whose judgment the other members of the court agreed, referred (para 72) to “the unique and unrivalled expertise of UNHCR in the field of asylum and refugee law”, and expressed agreement with the observations of Sir Stephen Sedley in the court below [2013] 1 WLR 576, para 41, which he quoted at para 71:

   “It seems to us that there was a reason for [the European Court in MSS v Belgium and Greece] according the UNHCR a special status in this context. The finding of facts by a court of law on the scale involved here is necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session. The High Commissioner for Refugees, by contrast, is today the holder of an internationally respected office with an expert staff (numbering 7,190 in 120 different states, according to its website), able to assemble and monitor information from year to year and to apply to it standards of knowledge and judgment which are ordinarily beyond the reach of a court. In doing this, and in reaching his conclusions, he has the authority of the General Assembly of the United Nations, by whom he is appointed and to whom he reports. It is intelligible in this situation that a supranational court should pay special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit.”

1. The EU-derived rights as to asylum on which ASM seeks to rely in this appeal fall within paragraph 6(1)(a) of Schedule 1. ASM seeks to rely on EU-derived rights to impose obligations on the Secretary of State as to how his asylum claim is dealt with and in particular as to whether the Secretary of State exercises powers of removal available under the 1971 Act, the 2004 Act (Schedule 3 of which confers powers to remove claimants for asylum to a safe third country, as explained at paras 7 and 31-32 above) and the Immigration Rules. In the alternative, should this not be correct, the EU-derived rights as to asylum on which ASM seeks to rely would fall within paragraph 6(1)(b) of Schedule 1. ASM seeks to rely on EU-derived rights as restricting the function of the Secretary of State in deciding whether to remove him to a third country. That function is “in connection with immigration” because it involves a decision whether to grant him leave to enter or remain in the United Kingdom.

1. In support of the more limited reading of the provisions of the 2020 Act for which he contends, Mr Drabble also relies upon external aids to interpretation. First, he relies upon the Explanatory Notes to the Bill which became the 2020 Act. He points out that they make no express or implied reference to asylum, nor do they identify repeal of any retained EU law relating to asylum. He draws attention to the following features in particular.

   1. The overview section identifies the purpose of the Act as ending free movement of EU, EEA and Swiss citizens, protecting the status of Irish citizens once free movement ends, and making provision to amend retained direct EU legislation relating to social security co-ordination.

   1. The sections addressing the policy background and legal background to the Bill make no reference to asylum but set out the legal consequences of the ending of free movement at the end of the post-Brexit implementation period.

   1. The paragraphs addressing “EU-derived rights etc” under Part 3 of Schedule 1 (paragraphs 66-69) state that the Bill “disapplies other retained EU law relating to free movement of persons” (para 67). In particular, they make reference to the residence rights that are derived from articles 20 and 21 of the Treaty on the Functioning of the European Union (rights of citizenship and free movement).

   1. They include (at para 69) a table of directly effective rights relevant to paragraph 6 but the table includes no reference to asylum rights.

(Corresponding points are made in relation to the similar passages which appear in the Explanatory Notes to the 2020 Act.)

1. Secondly, Mr Drabble relies upon Parliamentary Committee reports and materials produced during the passage of the 2020 Act which, he submits, indicate clearly that the legislative intention behind the Act was only to end free movement and co-ordinate social security measures. In particular, he relies on the following matters.

   1. The House of Lords Delegated Powers and Regulatory Reform Committee report (22^nd Report of Session 2019-21, HL Paper 118, 25 August 2020) refers to the Bill having two principal parts: Part 1 ending free movement of persons and Part 2 conferring powers to co-ordinate access to social security. The report makes no reference to asylum, the Procedures Directive or the Qualification Directive.

   1. The Delegated Powers Memorandum dated 24 July 2020, supplied to the Committee by the Home Office during the preparation of its report on the Bill, provided a detailed outline of the Bill and the powers contained in it. It refers to the law relating to free movement but makes no reference to asylum, the Procedures Directive or the Qualification Directive.

   1. The Committee’s subsequent report (25th Report of Session 2019–21, HL Paper 141, 14 October 2020) refers to the ending of free movement and makes no reference to asylum.

   1. The report of the House of Lords Select Committee on the Constitution (11th Report of Session 2019–21, HL Paper 120, 2 September 2020) refers to the purposes of the Bill as “to end free movement of persons under EU law and to provide for the amendment of retained EU law governing social security co-ordination”.

1. In the process of seeking the meaning of the words which Parliament has used, external sources necessarily play a secondary role. In the present case, none of the extraneous aids relied upon gives rise to an ambiguity capable of displacing the clear and unambiguous meaning of the statute. The statements in the Explanatory Notes relied on do not assist ASM because they are not exhaustive. The Explanatory Notes state that “they are not, and are not intended to be, a comprehensive description of the Bill [or Act]”. The table of directly effective rights relevant to paragraph 6 of Schedule 1 to the 2020 Act (at para 69 of the Explanatory Notes to the Bill) expressly states that it is a non-exhaustive list. Similarly, the statements in the Parliamentary Committee reports and materials are not exhaustive. Furthermore, there is no absurdity in the Secretary of State’s reading of the statute. While it is a curious feature of the external aids to interpretation on which ASM relies that they contain no reference to EU-derived asylum law, one possible explanation may be that provided by Underhill LJ in the Court of Appeal (at para 366): that is that it is not clear that there was any reason at the time the Bill was going through Parliament for the Government to have considered the question of its impact on asylum rights one way or the other. An inconsistency did arise from the new paragraph 345C of the Immigration Rules, but the statement of changes which introduced this change was only laid before Parliament on 10 December 2020 ie after the 2020 Act received Royal Assent (on 11 November 2020). In any event, this fact cannot displace the plain meaning of the words of the statute itself.

1. The principle of legality

1. ASM submits that the conclusion that the legislative intention behind the 2020 Act did not extend to removing asylum rights is further supported by the principle of legality as a special rule of construction. The principle was stated in the following terms by Lord Browne-Wilkinson in R v Secretary of State for the Home Department Ex p Pierson [1998] AC 539, 575:

   “A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”

Mr Drabble submits that in the present case the principle of legality operates to preserve the rights conferred by articles 25 and 27 of the Procedures Directive because of the absence of clear and unambiguous wording in the 2020 Act demonstrating that Parliament intended to remove them.

1. The principle of legality does not assist ASM. First, the principle is concerned essentially with an interference by statute with a common law constitutional right or with a statutory provision which declares such a fundamental or constitutional right. (See R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department per Lord Hodge at paras 33, 43.) In that case, which concerned a statutory procedure for registration by which a person can acquire British citizenship, Lord Hodge considered that, notwithstanding the importance to an individual of the possession of British citizenship, the court was not dealing with an interference with a fundamental or constitutional right. As a result, the normal canons of statutory construction applied. In the same way, in the present case the relevant protection afforded by articles 25 and 27(2)(a) of the Procedures Directive, despite its importance, does not bring the principle of legality into play.

1. Secondly, the purpose of the 2020 Act is to end the application within domestic law in the United Kingdom of parts of retained EU law. As Lord Pannick observed in his written case, such an Act of Parliament should be construed fairly in accordance with its terms, and not by reference to a presumption that it applies to as little retained EU law as possible.

1. Thirdly, in any event, the principle of legality does not permit a court to disregard an unambiguous expression of Parliament’s intention such as that with which we are concerned in the present case.

1. G v G

1. Finally, it is necessary to say something about the reliance placed by Mr Drabble on the decision of the Supreme Court in G v G [2021] UKSC 9; [2022] AC 544. In that case, a mother and father had lived in South Africa with their young child. Following their divorce, the mother wrongfully brought the child to England where she applied for asylum and named the child as a dependant in her application. The father applied in England for an order returning the child to South Africa, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980. The appeal concerned the relationship between the asylum proceedings and the Hague Convention proceedings.

1. In the Supreme Court, the only judgment was that of Lord Stephens (with whom Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt and Lord Burrows agreed). Lord Stephens recorded (at para 84):

   “The Secretary of State accepts, for the purposes of this appeal, and I agree, that the relevant provisions of the [Procedures Directive and the Qualification Directive] are directly effective and remain extant in domestic law as “retained EU law” after the United Kingdom’s withdrawal from the EU.”

Lord Stephens also noted (at para 107) that the Secretary of State’s procedures governing the approach to processing and determining claims for asylum had as their objective ensuring that the United Kingdom’s obligations under the Refugee Convention, the Qualification Directive and the Procedures Directive were in practice met. (In this regard, Mr Drabble also referred us to Secretary of State for the Home Department v Ainte (material deprivation – Art 3 – AM (Zimbabwe)) [2021] UKUT 203 (IAC), at paras 63-65 and NM (Art 15(b) – Intention Requirement (Iraq)) v Secretary of State for the Home Department [2021] UKUT 259 (IAC) at paras 13-15. In both cases, following G v G, it was common ground between the parties and the Upper Tribunal accepted that the Qualification Directive was retained EU law.)

1. Argument in the appeal of G v G proceeded on the basis of a concession by the Secretary of State for the purposes of that appeal that the relevant provisions of the Procedures Directive remained in force in the domestic law of the United Kingdom as retained EU law. The Supreme Court heard no argument on the point and no reference was made to the effect of the 2020 Act in this regard. The fact that Lord Stephens had heard argument in Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53; [2022] AC 659 some two months earlier as to the effect of the 2020 Act on the law of free movement is irrelevant for present purposes. The earlier case was not concerned with the law of asylum but solely with the law of free movement. A likely explanation of what occurred during the appeal in G v G is provided by the Divisional Court in the present case (at para 117): since the 2020 Act came into force (on 31 December 2020) between the judgment of the Court of Appeal in G v G (on 15 September 2020) and the hearing of the appeal in the Supreme Court (25-27 January 2021), the parties may simply not have turned their minds to the matter.

1. In circumstances where the point was not argued in G v G, the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, concerning the departure of the Supreme Court from its earlier decisions, has no application. On the present appeal, the Supreme Court, having heard full argument on the point, has come to the clear conclusion that the effect of the 2020 Act is that articles 25 and 27 of the Procedures Directive do not have effect in the domestic law of the United Kingdom as retained EU law.

1. Conclusion

1. For the reasons we have explained in our discussion of Issues 2 and 3, at paras 42-105 above, we conclude that the Court of Appeal was correct to reverse the decision of the Divisional Court, and was entitled to find that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement. It was accordingly correct to hold that the Secretary of State’s policy is unlawful. The Secretary of State’s appeal is therefore dismissed. For the reasons explained in our discussion of Issue 4, at paras 107-148 above, the cross-appeal by ASM is also dismissed.