R (AAA) v Secretary of State for the Home Department

This judgment concerns judicial review challenges to Home Secretary decisions that asylum claims made in the United Kingdom were inadmissible and that claimants should be removed to Rwanda under the Migration and Economic Development Partnership (the MEDP). The court analysed the legal framework in the Immigration Rules (in particular paragraphs 345A–345D), the certification regime in Part 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (paragraph 17 and related provisions), and the interaction with ECHR obligations (notably article 3) and the Refugee Convention.

Key legal principles applied were:

• Where a state proposes to remove an asylum-seeker without deciding his claim on the merits, the state must have carried out a thorough, evidence-based assessment of whether the receiving country has adequate procedures to protect against refoulement (principles derived from Ilias and Ahmed v Hungary and Soering).
• The Secretary of State may lawfully rely on international arrangements and assurances (here the MOU and Notes Verbales with Rwanda) when assessing whether a country meets the "safe third country" criteria in paragraph 345B, provided reasonable enquiries and up-to-date consideration of relevant material (including UNHCR material) have been made.
• The power to certify under paragraph 17 of Schedule 3 to the 2004 Act is a case-by-case power; but reliance on prior general assessments does not render that power unlawful so long as individual circumstances are considered when certification is made.

The court rejected broad challenges to the Home Secretary’s Rwanda policy and most generic grounds (including claims under the Asylum Procedures Directive as retained EU law, Rule-making arguments under the Immigration Act 1971, and that the policy necessarily breached the Refugee Convention). However, on the facts of multiple individual claimants, the court quashed specified inadmissibility, removal and human-rights certification decisions where the Home Office decision-making was affected by material errors of fact, failures to consider material evidence, or procedural defects (notably failures to ensure the officials deciding human-rights certification had before them material that had been placed before other Home Office teams).

The claimants challenged Home Secretary decisions, taken under paragraphs 345A–345D of the Immigration Rules and paragraph 17 of Part 5 of Schedule 3 to the 2004 Act, that a number of asylum claims were inadmissible and that the claimants should be removed to Rwanda for determination of their claims. The Home Secretary relied on a May 2022 assessment of Rwanda and the Migration and Economic Development Partnership (MOU and two Notes Verbales) between the United Kingdom and Rwanda plus an Inadmissibility Guidance (version 6.0), and later reconsidered many decisions in July 2022 after further representations and UNHCR material.

Nature of the application: permission for judicial review was sought of decisions that (a) a claimant could and should have claimed asylum in a safe third country before reaching the UK (paragraph 345A(iii)(b)), (b) removal to Rwanda was appropriate (paragraph 345C) and (c) that the claimants’ human-rights claims were "clearly unfounded" and so certificable under paragraph 17 and paragraph 19(c) of Schedule 3 to the 2004 Act.

Issues framed by the court included:

1. whether the Home Secretary’s assessment that Rwanda is a "safe third country" complied with ECHR article 3 and the requirements identified in Ilias and Ahmed v Hungary (i.e. whether Rwanda has adequate asylum procedures and safeguards against refoulement);
2. whether the MOU and Notes Verbales provided adequate and reliable assurances that Rwanda would process transferred asylum claims in accordance with the Refugee Convention;
3. whether the procedure adopted by the Home Office gave claimants a fair opportunity to make representations (including whether the standard form Notice of Intent and seven-day period were compatible with fairness and access to the courts);
4. whether the Home Secretary had misapplied or unlawfully used the certification power in Schedule 3 to the 2004 Act or had relied on the Inadmissibility Guidance in a way that should have been subject to Parliamentary procedure under the Immigration Act 1971; and
5. the application of data-protection obligations to the transfer of personal data to Rwanda under the MOU.

Reasoning and conclusions (concise): the court held that, on the totality of the material before the Home Secretary (including the May 2022 assessment documents, the MOU and Notes Verbales, and later UNHCR material), the Home Secretary had in substance carried out the thorough assessment required by the ECHR jurisprudence and was entitled to rely on the assurances in the MOU and Notes Verbales when determining generally whether Rwanda met the "safe third country" criteria in paragraph 345B. The court rejected general arguments that the Inadmissibility Guidance or the MEDP were per se unlawful, that compliance with section 3(2) of the Immigration Act 1971 required the Home Secretary to lay the dangerous-journey criterion before Parliament, and that the Asylum Procedures Directive as retained EU law invalidated the Immigration Rules (the court concluded the Directive ceased to be retained EU law insofar as it conflicted by virtue of subsequent domestic legislation).

Nevertheless, the court found a series of legal defects affecting individual decisions: material evidence (for example, UNHCR material or medical reports) had not been considered by the officials who took the human-rights certification decisions; in several cases facts were transposed between claimants or mistaken facts were relied upon; and in several decisions relevant representations or reports (including Rule 35 and medico-legal material) had not been taken into account. For those claimants the court quashed the specific inadmissibility, removal and/or human-rights certification decisions and ordered reconsideration. The court also addressed but rejected data-protection and discrimination challenges in substance, and refused standing to three non-governmental organisations named as claimants where individual claimants were better placed to bring and litigate the relevant challenges.

The court dismissed the core generic challenges to the legality of the Rwanda policy and concluded the Home Secretary had, as a matter of law, been entitled to rely on the MOU and the May 2022 Rwanda assessment to assess whether Rwanda could be a "safe third country" under paragraph 345B of the Immigration Rules. However, the court quashed a number of individual decisions (identified in the judgment) because they were flawed by material errors of fact, failures to consider relevant representations or evidence (including UNHCR material and medical reports), or defective allocation of material among Home Office teams (notably the human-rights decision-makers lacked material placed before other units). Those individual decisions were remitted for reconsideration. The court therefore allowed the judicial review claims in part for the specified individual claimants and otherwise dismissed them.