AAA & Ors., R (on the application of) v The Secretary of State for the Home Department

A safe-third-country removal policy is lawful if the decision-maker thoroughly examines the receiving state’s asylum system, takes reasonable steps to obtain relevant information, and considers the individual claimant’s circumstances. Procedural fairness requires an opportunity to explain why an asylum claim was not made in a country previously visited and why removal would be unsafe for that claimant. It does not generally require disclosure of all material concerning the receiving state’s overall compliance with refugee obligations.

Removal to a safe third country is not, without more, a penalty contrary to article 31 of the Refugee Convention. Data-protection breaches do not automatically invalidate immigration decisions. The individual decisions were nevertheless quashed where relevant evidence was ignored, facts were confused, or reasons were inadequate.

The Divisional Court heard conjoined judicial review claims by individual asylum seekers and organisations challenging the Home Secretary’s Rwanda policy. The policy involved treating certain asylum claims as inadmissible under paragraphs 345A to 345D of the Immigration Rules, certifying claims under Part 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004, and removing claimants to Rwanda under the Migration and Economic Development Partnership.

The challenges concerned Rwanda’s safety, the lawfulness of the policy and guidance, retained EU law, the Refugee Convention, data protection, discrimination, equality duties, procedural fairness, standing, and errors in individual decisions.

1. General legality. The Home Secretary’s conclusion that Rwanda was a safe third country was lawful. The assessment satisfied the requirement for a thorough examination of the accessibility and reliability of Rwanda’s asylum system under Ilias and Ahmed v Hungary. The information-gathering duty in Tameside v Secretary of State for Education and Science was also satisfied. The assurances in the Memorandum of Understanding and Notes Verbales could rationally be relied upon, applying the rigorous and pragmatic approach in Othman v United Kingdom.
2. The Rwanda policy did not positively authorise unlawful removals and was not unlawful under Gillick v West Norfolk and Wisbech AHA. Paragraph 17 of Schedule 3 to the 2004 Act could be used as part of a general policy, provided the specified claimant’s individual circumstances were considered. The dangerous-journey criterion in the guidance concerned prioritisation and process, not a rule requiring inclusion in the Immigration Rules.
3. Paragraph 345A(iii)(b) required consideration of whether the claimant had had the opportunity to claim asylum in a safe third country and whether exceptional circumstances prevented that claim. Preparatory inquiries concerning removal under paragraph 345C could occur before the inadmissibility decision.
4. Articles 25 to 27 of the Asylum Procedures Directive ceased to be retained EU law by paragraph 6 of Schedule 1 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. Removal to a safe third country was not inherently contrary to articles 31 or 33 of the Refugee Convention. Article 31 did not prevent expulsion where article 33 was respected.
5. Any breach of data-protection law did not automatically invalidate decisions under paragraphs 345A or 345C. Article 49 of the UK GDPR could provide a lawful basis for transfer of personal data where the public interest in immigration control was recognised in domestic law.
6. Procedural fairness required an opportunity to address the claimant’s own reasons for not claiming asylum elsewhere and the claimant-specific reasons why Rwanda would be unsafe. It did not require disclosure of all material relied upon to assess Rwanda generally. Seven days was not inherently unlawful, particularly since extensions could be requested.
7. Several individual decisions were unlawful. Decisions concerning AAA, AHA, AT, AAM, NSK and HTN were quashed because of material factual errors, failure to consider relevant representations or evidence, or inadequate reasons. Human-rights decisions were also quashed where the decision-maker had not considered UNHCR evidence or other relevant material. RM’s inadmissibility decision and trafficking decision survived, but his human-rights decision was quashed. AS’s human-rights decisions were quashed.
8. The organisations PCSU, Detention Action and Care4Calais lacked standing to pursue the generic challenges where directly affected individual claimants were available. The claims succeeded only to the extent identified in the individual cases. If the policy was to be applied again, the Home Secretary had first to reconsider the quashed decisions.