The Court of Appeal has found, by a majority, that the Rwanda plan is unlawful as Rwanda is not a sufficiently safe country, a report by Free Movement (FM)said. In short, the Rwandan authorities are not yet reliably able to sort genuine from non-genuine refugees, and therefore there is too great a risk that genuine refugees will be returned to their home countries where they might face persecution. Afghans and Syrians, for example, currently have a 100% rejection rate in Rwanda.

All of the other grounds of appeal pursued by the claimant asylum-seekers against the Rwanda plan were unanimously dismissed.

Rwanda not a safe third country

Sir Geoffrey Vos and Lord Justice Underhill give separate judgments. Read together, their decision is that the deficiencies in the Rwandan asylum system means that there are substantial grounds for believing that there is a real risk that persons sent to Rwanda will be returned to their country where they faced persecution or other inhumane treatment, when in fact they have a good claim for asylum.

This means that the Rwandan plan breaches Article 3 ECHR, more specifically the test spelled out in Soering v United Kingdom (1989) 11 E.H.R.R. 439, which makes a decision or policy contrary to Article 3 where there are substantial grounds for believing that it would lead asylum-seekers to face real risk of Article 3 mistreatment.

This conclusion is founded on the evidence, which was also before the High Court, that Rwanda’s system for determining asylum claims was, up to the finalising of the Rwanda plan, inadequate.

Whilst the majority (in agreement with Lord Burnett) emphasise that there is no evidence to suggest that the Rwandan Government entered the agreement in bad faith, the following issues are emphasised in the judgment of Lord Justice Underhill as supporting the conclusion that the Rwandan system was not reliably fair and effective at the relevant dates.