SM and Asylum Aid -v- Home Secretary
AC-2024-LON-001789
AC-2024-LON-001704
Administrative Court
Royal Courts of Justice
3 June 2024
Ruling by Mr Justice Chamberlain
Between:
SM -v- Home Secretary
Asylum Aid -v- Home Secretary
Order
This is an unofficial transcript of a ruling given orally at the Royal Courts of Justice, London, on 3 June 2024. It has been produced by the judge to ensure that other parties are aware of its contents in advance of the availability of the official transcript.
Introduction
1. This hearing was listed to give directions in two claims against the Home Secretary, both of which concern the Government’s policy of removing certain migrants to Rwanda. In the second claim, there is also an application for interim relief. The claims are listed together because the grounds of challenge overlap. In both, the claimant is represented by Charlotte Kilroy KC and the Home Secretary by Edward Brown KC. I am grateful to both of them and to their respective legal teams for their written and oral submissions.
The Asylum Aid claim
2. In the first claim, the claimant is Asylum Aid, a registered charity which delivers legal representation to people seeking asylum. It challenges a Home Office policy entitled “Safety of Rwanda Version 2.0”, which explains to decision-makers how to consider claims made by persons subject to removal to Rwanda and gives guidance about how to apply the provisions of the Safety of Rwanda (Asylum and Immigration) Act 2024 (“the 2024 Act”). The policy has already been revised in one respect in response to the claimant’s letter before claim. The claimant challenges the new version, published on 13 May 2024, contending that it continues to misstate the effect of s. 4(2) of the 2024 Act.
3. The claimant contends, first, that on its true construction s. 4(2) is a provision which reflects and gives effect to the foreign act of State doctrine, and that it precludes direct adjudication by the UK courts of Rwanda’s compliance with its own international obligations, but does not prevent a decision-maker from considering whether there is a real risk that an individual who is to be removed to Rwanda will be subject to onward removal to an unsafe third country (i.e. refoulement). In the alternative, the claimant contends that, if s. 4(2) does have that effect, it represents such a serious incursion into the rule of law that the Court should decline to give effect to it, applying the reasoning of Lord Carnwath in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491.
4. I gave directions abridging time for the Acknowledgement of Service and Summary Grounds, which were filed on 28 May 2024. In them, the defendant submits that both grounds are unarguable and invites me to refuse permission to apply for judicial review.
The SM claim
5. In the second claim, there are anonymisation and restricted reporting orders protecting the identity of the claimant. He is referred to as SM. According to the Statement of Facts and Grounds, he arrived in the UK on 17 May 2022 and claimed asylum. Although initially detained, he was released on bail on 21 June 2022. On 2 May 2024, he was detained. On 3 May, the Home Secretary served on him a Notice of Intent (“NoI”) indicating that his asylum claim had been identified as potentially inadmissible and that he was being considered for removal to Rwanda and giving him until 9 May to make representations as to why he should not be sent to Rwanda. On 9 May, he requested an extension until 12 July. The Home Secretary granted an extension to 23 May.
6. As I have made clear, SM’s current challenge is not to a decision to remove him to Rwanda but rather to the NoI. The grounds are as follows: (1) refusing to admit his asylum claim over two years after it was made would be contrary to the Home Secretary’s policy, the Immigration Rules and his rights under Article 8 ECHR; (2) the refusal to grant the extension sought to respond to the NoI is irrational, unreasoned and contrary to the claimant’s procedural rights under Articles 2, 3 and 8 ECHR; (3) the Home Secretary’s policy “Safety of Rwanda Version 2.0”, which explains to decision-makers how to consider claims made by persons subject to removal to Rwanda, is wrong in law (for the reasons set out in the Asylum Aid claim); and (4) alternatively, if that policy accurately reflects s. 4(2) of the 2024 Act, the court should declare pursuant to s. 4 of the Human Rights Act 1998 (“HRA”) that that provision is incompatible with the claimant’s procedural rights under Articles 2 and 3 ECHR and gives rise to a real risk of a substantive breach of those rights. Ms Kilroy says that a declaration of incompatibility is not available to Asylum Aid because it is not itself a victim for the purposes of the HRA.
Case management and directions
7. The first issue today is how these claims should be managed. They have unusual features. They are the first claims relating to a policy that may well apply to many others. Furthermore, it was the Government’s intention, stated for the first time today in a note filed by Mr Brown KC, to begin removals on 23 July “and not before”. During the hearing, Mr Brown told me that the date had moved and was now 24 July. All this is, of course, subject to the outcome of the General Election.
8. The Home Secretary submitted as follows in Mr Brown’s note filed earlier today:
(a) First, I should refuse permission on ground 3 in SM’s claim and on both grounds in the Asylum Aid claim. If permission is granted, those issues should be resolved expeditiously. I am invited to stay grounds 3 and 4 in SM’s claim. Ground 4 (which challenges the compatibility of s. 4(2) of the 2024 Act) raises separate issues and would require consideration of extensive evidence.
(b) Second, ground 2 in SM’s claim is academic because in a letter dated 30 May 2024 the Home Secretary agreed to reconsider the decision about the length of the extension that SM would require and has said that he will decide that issue on 6 June.
(c) Third, ground 1 has been raised in a substantial number of other judicial review claims, most of which are before the Upper Tribunal. The Home Secretary is aware of 12 claims brought by Wilsons Solicitors, 5 by Sohaib Fatimi Solicitors and 2 claims in which Asylum Aid are the solicitors on the record. The Home Secretary points out that, were it not for the claim for a declaration of incompatibility, the claimant would have been obliged to bring ground 1 in the Upper Tribunal. I could sever ground 1 and transfer it to the Upper Tribunal. In any event, submits the Home Secretary, it is desirable for all claims raising this issue to be dealt with in a co-ordinated manner.
9. The claimant accepted through Ms Kilroy’s note in advance of the hearing that his claim could properly be stayed behind the Asylum Aid claim, with the remaining grounds determined thereafter, but only if interim relief is granted. If not, the claimant proposed that his claim be joined with the Asylum Aid claim, that permission is granted on ground 3 (which adopts Asylum Aid’s grounds) and that the hearing on all grounds be listed with a time estimate of two days between 26 and 28 June.
10. These two claims raise three substantive sets of issues, which may be of potentially wide importance, depending on the result of the General Election:
(a) First, the issues about the legality of declaring inadmissible asylum claims made long ago (in this case in May 2022). This is ground 1 in SM’s claim.
(b) Second, the issues about the proper interpretation of s. 4(2) of the 2024 Act and the question whether the court should give effect to it. This is ground 3 in SM’s claim and grounds 1 and 2 in the Asylum Aid claim.
(c) Third, the issues about the compatibility of s. 4(2) of the 2024 Act. This is ground 4 in SM’s claim.
11. One possibility would be to consider permission in respect of each of the grounds pleaded in each claim, either on the papers or at a hearing. But in the context of these claims, that approach would be procedurally messy and would be likely to delay the point at which the claims are finally determined by this Court. One realistic outcome of such an approach would be that permission is granted on some grounds but not others. Given the importance of these issues, and the numbers affected by it, that would raise the unattractive prospect of parallel litigation in the Court of Appeal and in this Court.
12. In my judgment, the unusual context of these claims and the need for a relatively quick resolution mean that SM should be determined at a rolled-up hearing in the week commencing 8 July with a time estimate of 4 days. I canvassed this possibility during the hearing and both sides were amenable in principle. It was also agreed that it may be appropriate for one or more of the claims currently before the Upper Tribunal raising issues overlapping with ground 1 to be joined, if that would ensure that all the main arguments are before the Court. Equally, there may be other compatibility arguments which complement but do not duplicate those in ground 4. If other claims are filed in the next few days raising such arguments, it may be appropriate to join those claims.
13. At my suggestion, the parties agreed that there should be another directions hearing in this case one week from today, on 10 June, at which any further directions for joinder of other claims raising similar points, and generally, can be considered.
14. I recognise that this will require a considerable amount of work by legal teams on both sides, which will cost a large amount of money, all of it public money, which may turn out to have been unnecessary. However, given the Government’s intention to begin removal flights on 24 July, that is inevitable.
15. I have considered whether the Asylum Aid claim should also be determined at the same time. Ms Kilroy submitted that that could not happen unless I were to grant permission in the Asylum Aid claim, because the claimant could not proceed without a cost-capping order, which is not available unless the court has granted permission. Whilst I can see that it would help SM’s solicitors if another set of lawyers were available to share their load, I do not consider that this is a sufficient reason to consider and decide permission in the Asylum Aid claim at this stage. The preferable course is to stay the Asylum Aid claim, on the basis that the points made in that claim can be made in SM’s claim instead. The work done on the Asylum Aid claim so far will not have been wasted. It can be used by SM’s legal team. Ms Kilroy and Ms Knorr are instructed in both claims in any event. And it may be that the joinder of further claims at the directions hearing on 10 June will result in further legal resources being available to those challenging the Rwanda policy.
16. As to the directions, the main issue between the parties relates to the date by which the Home Secretary should be required to file detailed grounds and evidence. I suggested 24 June, in part on the basis of Mr Brown’s submission that time would be needed to collate evidence relevant to ground 4. Ms Kilroy points out that that timetable would require her team to produce both evidence and a skeleton argument in one week, by 1 July. She submits that the claimant needs longer than that.
17. In my judgment, it should be borne in mind that Parliament has already reached what is described in s. 1 of the 2024 Act as a “judgement” that Rwanda is safe. The material on the basis of which that judgement was reached must already exist. Therefore, much of the material relating to compatibility will already be in the public domain. It will be relatively easy for the Home Secretary to file that material. In my judgment, an appropriate way of balancing the competing claims for time is to require Home Secretary’s detailed grounds and evidence to be filed by Friday 21 June, with the claimant’s reply evidence and skeleton argument by Tuesday 2 July and the defendant’s skeleton argument by 4pm on Friday 5 July.
Interim relief
18. I turn next to the question of interim relief in SM’s case. The relief sought is an injunction restraining the Home Secretary from taking any admissibility or human rights decision in SM’s case until the final determination of this claim. Both parties agree that the test for interim relief is that set out by Cranston J in R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin), at [6]-[13]. Mr Brown for the defendant, while making no concession as to the strength of the claim, does not invite me to refuse interim relief on the ground that there is no serious question to be tried. That being so, the test I must apply is the standard balance of convenience test set out in American Cyanamid Co. v Ethicon Ltd [1975] AC 396, modified to give weight to the public interest in allowing the defendant public authority to pursue its removal policy, which must be regarded as presumptively lawful at this stage.
19. It was not necessary to grant interim relief before today, because in a note filed on 31 May 2024, Mr Brown for the defendant made clear that no admissibility decision would be made in SM’s case before, or on the day of, this hearing.
20. Ms Kilroy nonetheless invites me to grant an interim injunction today restraining the defendant from taking any admissibility decision until the conclusion of this claim. She submits that interim relief is essential to ensure that the claimant is not unlawfully and unfairly prejudiced. She submits that such prejudice could arise if the Court were unable to reach a final decision on the claimant’s grounds by 24 July. In that case, the claimant would have to apply for interim relief, but would be materially prejudiced because, once an inadmissibility decision has been taken, the statutory restrictions on the grant of relief in s. 4(3) and (4) of the 2024 Act will apply. The effect of these is that the Court may only grant an interim remedy that prevents or delays, or that has the effect of delaying, removal to Rwanda if “satisfied” that the person “would”, before the review is determined, face “a real imminent and foreseeable risk of serious and irreversible harm” if removed. That, she says, is materially different from, and more stringent than, the Medical Justice test.
21. I quite accept that it would be wrong for the claimant to face a situation in which his chances of obtaining interim relief were made materially worse by a decision which he has challenged as unlawful, in circumstances where the Court has been unable to determine that challenge. However, I do not think there is any real prospect of that happening here. In the first place, the court should be in a position to reach a decision (even if it has not yet been able to give reasons), at least on the claimant’s grounds 1 and 2, by 24 July. If it concludes that the decision to declare the claimant’s asylum claim inadmissible was unlawful, the Home Secretary will not be able to remove him, as Mr Brown expressly accepted today. Even if it becomes necessary for the claimant to seek interim relief at a later stage, the statutory restrictions on the grant of that relief will apply only to a review of a “relevant decision”, that is to say, “a decision taken by the Secretary of State or an immigration officer… that the Republic of Rwanda is a safe country for the person in question”: see the definition in s. 4(7) of the 2024 Act. Interim relief in relation in support of a ground of challenge to any other decision will remain available on the basis set out in Medical Justice.
22. So, at this stage, I can see no likely circumstances in which the making of an admissibility decision would prejudice the claimant. He will still be able to litigate his claims. There is a prospect that the court will be able to give judgment before the date when the first flight is due to leave. If that is not possible, there is a prospect that the Home Secretary may agree to delay the flight to enable judgment to be given. If not, interim relief will remain available. The test to be applied will depend on the decision under challenge, but it is difficult to see why the claimant would be prejudiced by the making of the inadmissibility decision.
23. Against that, there is a public interest in allowing the Government to pursue its policy, which, as I have said, must be regarded as presumptively lawful for the time being for the time being. Factoring in that public interest, and in the light of the timetable I have set, the balance of convenience falls decisively against the grant of interim relief at this stage.
24. I have borne carefully in mind the points Ms Kilroy makes about other claimants, who may not have been able to secure a final determination of their challenges to decisions to declare their asylum claims inadmissible. In my judgment, however, it is important that any application by a particular claimant for interim relief should be considered on its own merits. I have decided this application on the basis of the factors applicable to this claimant. If other points arise in other cases, they can be considered when the issue arises.
25. The application for injunctive relief is therefore refused.