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Rwanda Permission to Appeal Application refused

Rwanda Permission to Appeal Application refused

14 June 2022

The Supreme Court of the United Kingdom (UKSC) received a Permission to Appeal application in the matter of R (NSK (Iraq)) v Secretary of State for the Home Department last night (13 June 2022).

The Appellant seeks permission to appeal the decision of the Court of Appeal, dated 13 June 2022, by which the Court dismissed the Appellant’s appeal of Swift J’s Order, dated 10 June 2022. That Order refused to grant individual or general interim relief to stay the removal of asylum-seekers on a charter flight to Rwanda pending the substantive hearing of the claim for judicial review in July 2022.

On the morning on 14 June 2022, a panel of three Justices, comprising President of the Supreme Court, The Right Hon The Lord Reed of Allermuir, Deputy President of the Supreme Court, The Right Hon Lord Hodge and The Right Hon Lord Kitchin considered the application.

On behalf of the Secretary of State, the Government Legal Department have provided the Court with an assurance as to whether, if the Appellant were to succeed at the hearing in July, he would then be returned to this country.

In light of that assurance, the UKSC refused permission to appeal in this case.

Lord Reed explained the Court’s decision on this application, live in Courtroom 1 at the Supreme Court, at 12.15pm on 14 June:

At the outset, I should explain that the court is making an anonymity order in this case. That is usual in asylum cases, because of the risks which asylum seekers may run if returned to their home countries. The court accordingly orders that no–one should publish the name of the appellant or any information liable to result in his identification.

The appellant is one of a number of claimants who applied to the High Court on 8th June for permission to bring an application for judicial review of the Home Secretary’s decision that certain persons, including themselves, who have made claims for asylum in the United Kingdom should be removed to Rwanda so that their claims for asylum can be determined by the Rwandan authorities. In bringing that application, the appellant’s lawyers were performing their proper function of ensuring that their clients are not subjected to unlawful treatment at the hands of the Government.

On 10th June, Swift J granted the claimants permission to apply for judicial review. That application is expected to be heard in July. It is at that hearing that the question will be decided whether the Home Secretary’s policy is lawful or not. I should make it clear that neither the courts below, nor this court, are deciding that question at present.

Having decided that the question whether the Home Secretary’s policy is lawful should be decided at a later date, the question then arose as to what was to happen in the meantime. The judge had to decide whether the balance of convenience favoured allowing the claimants to be removed to Rwanda in pursuance of the Home Secretary’s policy, or favoured the appellants’ being allowed to remain in this country until the lawfulness of the Home Secretary’s policy had been decided, in which case he would have to grant an interim injunction to prevent their removal. He decided that question in favour of the Home Secretary, essentially on the basis that the importance of her being able to implement her policy in the meantime outweighed the significance of the problems which the claimants might suffer if removed to Rwanda. In forming that view, the judge considered a volume of evidence, including evidence relating to the memorandum of understanding and notes verbales entered into between the UK Government and the Government of Rwanda.

The claimants then appealed to the Court of Appeal. It refused their appeal on June 13th. As it explained, its role in relation to applications for interim injunctions is very limited. Put shortly, it was not entitled to interfere with the judge’s decision to refuse to grant an interim injunction unless he had erred in law or had conducted his evaluation in a manner which was unreasonable. The court held that those tests were not met, and therefore refused the appeal.

There is now only one of the original claimants, the appellant, who is still facing removal. The appellant has applied to this court for permission to appeal against the decision of the Court of Appeal. He wishes to appeal on the following ground: that the Court of Appeal erred in law in holding that the judge was entitled, when conducting his assessment of the balance of convenience, to proceed on the assumption that the Government of Rwanda would comply with the assurances provided in the memorandum of understanding.

This court is not persuaded that the Court of Appeal arguably committed such an error. It did not hold that the judge was entitled to assume that the Government of Rwanda would comply with the memorandum of understanding, and the judge did not make such an assumption. He did attach weight to the assurances given in that document, and was entitled to do so in the light of the evidence before him. The degree of weight which he gave to that evidence was a matter for his assessment, as the Court of Appeal correctly held.

One related matter which was of concern to this court was whether, if the appellant were to succeed at the hearing proposed for July in his challenge to the lawfulness of his removal to Rwanda, he would then be returned to this country, where it would follow that his asylum claim ought properly to be dealt with. In that regard, The Government Legal Department have informed the court, on behalf of the Home Secretary, as follows:

If the High Court were to make an order that the SSHD should use her best endeavours to ensure the Appellant’s return to the UK from Rwanda following a trial, and there were no stay of any such judgment, then the SSHD would seek to comply with that order. There are arrangements for return of relocated individuals in Article 11 of the MOU which provides that: “Following a request made by the United Kingdom, Rwanda will take all reasonable steps in accordance with international human rights standards to make a Relocated Individual available for return to the United Kingdom should the United Kingdom be legally obliged to facilitate that person’s return.”

In the light of that assurance, and for the reasons I have explained, the court refuses permission to appeal.

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