Published on 11 April 2023
FOURTH SECTION
Application no. 28774/22
N.S.K.
against the United Kingdom
lodged on 13 June 2022
communicated on 5 April 2023
SUBJECT MATTER OF THE CASE
The application concerns the United Kingdom Government’s Memorandum of Understanding with the Government of the Republic of Rwanda for an asylum partnership arrangement (“APA”).
The applicant, an Iraqi national, claimed asylum upon arrival in the United Kingdom. His claim was deemed inadmissible, and he was served with removal directions to Rwanda for 14 June 2022. He sought permission to judicially review the lawfulness of the APA and the decisions in his case. He also sought interim relief, preventing either the relocation of all asylum seekers to Rwanda under the APA or preventing his removal there. The High Court acknowledged that there were “serious triable issues” but refused to grant the applicant’s request for interim relief, since it assumed that Rwanda would comply with the APA and, in any event, if the applicant’s judicial review challenge was successful, he could be returned to the United Kingdom. An appeal against that decision to the Court of Appeal was dismissed and, on 14 June 2022 (at 12:15 UK time), the Supreme Court refused permission to appeal.
Later on the same afternoon, the Court granted an interim measure under Rule 39 of the Rules of Court. The Court had regard to the concerns identified in the material before it, in particular by the United Nations High Commissioner for Refugees (UNHCR), that asylum-seekers transferred from the United Kingdom to Rwanda would not have access to fair and efficient procedures for the determination of refugee status as well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to “serious triable issues”. In light of the resulting risk of treatment contrary to the applicant’s rights under Article 3 of the Convention as well as the fact that Rwanda was outside the Convention legal space (and was therefore not bound by the European Convention on Human Rights) and the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts, the Court decided to grant an interim measure to prevent the applicant’s removal until the domestic courts had the opportunity to first consider these issues. It therefore indicated to the Government that the applicant should not be removed until the expiry of a period of three weeks following the delivery of the final domestic decision in the ongoing judicial review proceedings.
On 24 June 2022 the Government asked the Court to review its decision to grant an interim measure and for the interim measure to be lifted. Having considered further submissions from the parties, the Court confirmed the interim measure on 1 July. The material presented by the Government was not sufficient to enable it to be satisfied that the applicant could and would be returned to the United Kingdom in the event that he was successful at any stage in his legal proceedings, including in the proceedings before the Court. Moreover, in case of a finding that the applicant’s removal to Rwanda put him at real risk of irreparable harm during the period pending the final determination of his application, his return to the United Kingdom at the conclusion of appeal proceedings or proceedings before this Court would be inadequate to protect against that risk.
On 19 December 2022 the High Court handed down its judgment in the applicant’s judicial review proceedings, which had been linked to those brought by other claimants. It found that it was lawful for the Government to make arrangements for asylum seekers’ claims to be determined in Rwanda rather than in the United Kingdom. However, the way in which the Home Secretary had implemented her policy in a number of the individual cases – including that of the applicant – was found to be flawed. The High Court quashed the decisions relating to the applicant on the basis that the Home Secretary did not provide adequate reasons for her conclusion that his asylum claim was inadmissible and that the decision refusing the human rights claim did not consider the evidence put forward, and indicated that if the Home Secretary wished to apply her policy to him, she would first have to reconsider the decisions in his case.
The claimants were granted permission to appeal the High Court’s findings in respect of the lawfulness of the APA and the Court of Appeal is currently scheduled to hear that appeal over four days between 24 and 27 April 2023. The Government did not seek to appeal the quashing of the individual decisions. On 16 January 2023 an order was issued formally quashing those decisions.
In the application form, the applicant complains that his removal to Rwanda would violate his rights under Article 3 of the Convention because he would not have access to an adequate refugee status determination there; that the United Kingdom had made no adequate assessment of whether he would in practice have effective access to a refugee status determination process there; and that persons relocated to Rwanda may be at risk of “detention and treatment not in accordance with international standards should they express dissatisfaction or protest at their conditions after arrival”. In the context of brief further submissions made on 14 March 2023 concerning the interim measure, the applicant argued that although the individual decisions had been quashed, the underlying Article 3 issues remained live. He explained that his allegations of Article 3 breaches were the subject of three grounds of appeal which would be examined in the hearing currently scheduled for late April. He maintained that he still had victim status since he had had no acknowledgment of, or remedy for, breaches of his Convention rights and remained a victim of a potential breach pending the issuance of fresh individual decisions.
QUESTIONS TO THE PARTIES
1. As the applicant cannot be removed to Rwanda without the Home Secretary reconsidering the decisions in his case, can he continue to claim to be a “victim” of the alleged violation within the meaning of Article 34 of the Convention?
2. If so, would his removal to Rwanda violate his rights under Article 3 of the Convention?