Public and Commercial Services Union (R on the application of) & Ors. v Secretary of State for the Home Department

The Court of Appeal dismissed an appeal against Swift J's refusal of interim relief to prevent removals to Rwanda under the UK–Rwanda scheme. The appeal concerned the threshold for interim relief in public law: whether there was a serious question to be tried about the lawfulness of individual removal decisions (not a single generic decision) and, if so, where the balance of convenience lay.

The court confirmed that the operative legal framework included section 33 of the 2004 Act (Schedule 3), section 77 of the Nationality, Immigration and Asylum Act 2002, and paragraphs 345A to 345D of the Immigration Rules. It accepted that some grounds (notably challenges under Ground 1 concerning the "safe third country" assessment and aspects of grounds 2, 3 and 5) raised serious triable issues, but held that the judge did not err in concluding the balance of convenience did not favour interim relief. The court emphasised deference to the judge's discretionary assessment, the limited interim period to the substantive hearing, and that formal documents between the United Kingdom and Rwanda (the Memorandum of Understanding and Notes Verbales) and the fact that removals would be subject to case-by-case decisions were lawful considerations which could be afforded weight.

This is an appeal from an Administrative Court decision of Swift J refusing interim relief sought to prevent removals of asylum claimants from the United Kingdom to Rwanda under the UK–Rwanda arrangements. The claimants included a trade union and charities as well as individual asylum claimants; the United Nations High Commissioner for Refugees intervened.

The claim challenged individual decisions under the 2004 Act and the Immigration Rules (in particular paragraph 345A-D of the Rules), and advanced seven grounds of judicial review including that the Secretary of State's general and individual determinations that Rwanda is a safe third country were irrational or in breach of the duty of sufficient inquiry (Ground 1), failures to provide malaria prevention (Ground 2), breaches of Article 3 ECHR (Ground 3), and a contention that aspects of the scheme were ultra vires in relation to the Refugee Convention (Grounds 4 and 5). Interim relief was sought to prevent the imminent deportation flight.

The judge below found that several grounds (notably Grounds 1 and 5, and aspects of Grounds 2 and 3) raised serious issues to be tried but refused interim relief after applying the public law formulation of the American Cyanamid principles: having found serious issues he proceeded to the balance of convenience (the court's description was "which course of action pending the final hearing ... gives rise to the least risk of prejudice"). He concluded the interim period would be short, that there was not a realistic risk of refoulement or Article 3 breaches within that interim window, and that the public interest in allowing the Secretary of State to implement immigration control weighed against a stay. The judge treated the Memorandum of Understanding and Notes Verbales between the UK and Rwanda, and the fact individual decisions remained operative, as material matters of weight.

On appeal the Court of Appeal reviewed the applicable principles for interim relief in public law and the standard of appellate review of discretionary decisions. The court held the judge had directed himself correctly, had not erred in principle, and his factual and evaluative conclusions were reasonably open on the material available. The court gave respectful weight to the UNHCR's expertise but accepted that the judge was entitled to treat the MOU/Notes Verbales and the short interim period as relevant factors. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the judge below had correctly applied the public law test for interim relief, had reasonably concluded that some grounds raised serious triable issues but that the balance of convenience did not justify injunctive relief. The judge was entitled to give weight to the Memorandum of Understanding and Notes Verbales and to the limited interim period; deference to his discretionary evaluative exercise was appropriate and his conclusions were open on the evidence.

On appeal from the Administrative Court (High Court of Justice, Queen's Bench Division), Swift J, CO/2032/2022. Permission to appeal was granted and the matter was heard in the Court of Appeal (Civil Division) on 13 June 2022, neutral citation [2022] EWCA Civ 840.