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

The judgment concerns permission applications arising from challenges to the Rwanda removal scheme. A later decision remade after further material is the operative decision. An internal operational document does not necessarily state policy and must be read as a whole with explanatory evidence. People smuggling is not trafficking merely because coercion or incidental labour occurs during the journey: transportation must be for the purpose of exploitation. A breach of an inter-governmental memorandum confers no individual rights unless the instrument provides them. Grounds unavailable below cannot be revived merely because another appellant has permission.

Eight judicial review claims concerning the Rwanda scheme were heard by the Divisional Court. It rejected the generic challenges but found legal flaws in individual decision-making. In five claims all relevant decisions were quashed; in two others only the human rights decisions were quashed. The Divisional Court granted permission to appeal on various grounds.

The Court of Appeal considered further applications for permission in AAA and HTN, RM, AS, AB and SAA. The issues included the effect of internal guidance on vulnerability, the distinction between people smuggling and trafficking, the status of later remade decisions, alleged breaches of the MEDP memorandum, procedural fairness, and whether grounds should proceed where they overlapped with grounds already permitted. The judgment determined permission only, not the substantive appeals.

The Court was deciding permission applications and emphasised that the judgment had no status as authority in other cases.

1. AAA and HTN. Permission was granted on grounds (1)–(3) and (5), because those issues substantially overlapped with ground (4), on which permission had already been granted. The Court did not decide the merits of the challenges.
2. RM. Permission was refused on ground (6). The Standard Operating Procedure did not establish a policy excluding all persons with vulnerabilities from transfer to Rwanda. Read as a whole, and with the evidence of the responsible official, it was reasonably understood as operational guidance concerning initial detention priorities. Hearsay in that explanatory evidence was not objectionable in principle. Permission was also refused on ground (7). Trafficking requires an act, relevant means, and transportation for the purpose of exploitation. People smuggling is not transformed into trafficking by threats or incidental tasks during the journey. The relevant purpose was the purpose of transporting RM to the United Kingdom, and there was no arguable basis for finding that the smugglers transported him in order to exploit him.
3. AS. Permission was refused on grounds 1A–1C and 2. The operative decisions were those made on 5 July 2022, which considered the medical material then available. Any earlier failure was therefore irrelevant. Even if the United Kingdom had breached the MEDP memorandum by failing to provide health information earlier, the memorandum was an international treaty between governments and conferred no rights on individuals. Permission was granted on ground 3 because, if other grounds succeeded, it would be arguable that the Inadmissibility Guidance required unlawful treatment of Rwanda as a safe third country. The Court saw no present basis for modifying the conventional Gillick test in cases involving a possible Article 3 breach.
4. AB and SAA. Permission was refused on AB’s grounds (c) and (d), since those grounds had not been available below. SAA’s ground (3) was deferred to the full hearing. No order was made on the unresolved part of ground (4). Ground (6) had fallen away and another part of ground (4) had already been refused.

• Court of Appeal (Civil Division) — On 14 March 2023, Lord Justice Underhill granted, refused or deferred permission on the various grounds in [2023] EWCA Civ 266.
• Divisional Court of the High Court — The court rejected the generic challenges to the Rwanda scheme but found legal flaws in individual decisions and granted permission to appeal on specified grounds in [2023] EWHC 55 (Admin).