02/12/2025
Written by: Hugh Southey KC
Background
The UK Government sought to introduce a controversial policy of transferring asylum seekers to Rwanda without giving substantive consideration to the claim. The legal challenge argued this was unlawful because, among other things, there was a risk of refoulment to another country where there was a risk of ill-treatment. Politically there were arguments about the effectiveness of the policy. The judgment demonstrates that the Supreme Court was well aware of the political sensitivity of the arguments as it emphasised that its conclusions were based on law and not political arguments [2].
Decision
The Supreme Court held that it was for it (and not the Secretary of State) to determine directly whether there were substantial grounds for believing that transfer of an asylum seeker to Rwanda meant that there was a real risk of ill-treatment as a consequence of their refoulement to a further country [72]. Based on the evidence, the Supreme Court concluded that there was such a risk [105].
The approach of the Supreme Court represented a rejection of the approach of the Divisional Court. The Divisional Court essentially concluded that the issue was whether the Secretary of State was entitled to reach the conclusions that she reached regarding risk of refoulement [52].
Perhaps less commonly known, the Supreme Court held that articles 25 and 27 of Council Directive 2005/85/EC (which limited the return of asylum seekers to third countries) were not retained EU law by reason of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 [149].
Comment
In a narrow sense the continuing implications of this judgment are limited. The election of a Labour government led to the abandonment of the Rwanda policy. However, to view this judgment as simply to be concerned with the Rwanda policy would be a mistake.
Firstly, this judgment should be read in its political context. The importance of this policy to the Government meant that there was pressure on the judges to respect the policy choices made by the Government. That pressure was particularly acute in light of criticism of what was said to have been the politicisation of the judges. The Supreme Court stood up to this pressure.
Secondly, the reaffirmation of the principle that it is for the Courts to determine whether there has been compliance with human rights standards gives teeth to the Human Rights Act 1998. Human rights law is undermined if the state can determine whether it has been violated subject only to limited review.
Thirdly, the litigation drew attention to how far off-track refugee policy had gone. The UK has long purported to comply with the Refugee Convention. The fact that the UK had adopted a policy that systemically risked denying protection undermines that record. It led to arguments that the UK is not a safe third country as a matter of EU law (Ireland’s designation of UK as ‘safe third country’ is unlawful, rules High Court – The Irish Times).
Finally, there will continue to be Government attempts to narrow protection provided to refugees. The Supreme Court’s conclusions that great weight must be given to the views of the United Nations High Commissioner for Refugees will assist those seeking to safeguard the rights of refugees [70].
The effects of the ruling regarding EU law were narrowed by the Court of Appeal in D8 v Secretary of State for the Home Department [2025] EWCA Civ 33 holding that Immigration Rules introduced to comply with EU law were retained EU law. Further, the judgment of the Northern Irish High Court in Re JR 295 [2024] NIKB 35 means that EU law in this area has greater continued importance in Northern Ireland.
Matrix members
Raza Husain KC, Phillippa Kaufmann KC and Anirudh Mathur acted for a number of the Claimants.