Are the Supreme Court Constitutional decisions Cavalier?
R (on the application of AAA and Others) v The Secretary of State [2023] UKSC 42
When looking at whether the government’s use of prerogative power is legal or the courts approach to constitutional principles cavalier, consider the case (on the application of AAA and Others) v The SS (UNHCR Intervening) [2023] UKSC 42, where the Supreme Court held the Secretary of State's policy of sending asylum applicants from the UK to Rwanda to have their claims heard there is illegal. The Supreme Court ruled in a majority decision.
Lord Hodge, Lord Briggs, and Lord Sales concurred with Lord Reed and Lord Lloyd-Jones as they maintained the Court of Appeal's ruling that the policy's legality had been successfully contested by the individual claimants. This was due to the evidence presented to the Divisional Court, which showed that there were good reasons to think that there was a genuine risk that the Rwandan authorities would improperly reject asylum claims and, as a result, that there was a genuine risk that specific asylum-seekers would be refouled or returned to the country where they faced persecution.
The Divisional Court's approach to the evidence was deemed incorrect by the Supreme Court, which upheld the majority Court of Appeal's evaluation of the evidence. The Supreme Court was satisfied that the Court of Appeal had the right to overturn the Divisional Court's rulings and reevaluate the matter because the Divisional Court had neglected to consider extensive evidence from the UNHCR regarding structural issues with Rwanda's asylum claim processing that raised the possibility of refoulement.
A Memorandum of Understanding between the Rwandan and UK governments was supposed to address the shortcomings in the Rwandan asylum system. Nevertheless, the Supreme Court concluded that the agreement would not be enough to address such shortcomings after considering several other issues. The overall state of human rights in Rwanda, its prior transgressions against the principle of non-refoulement, and its recent failure to uphold comparable promises made to another foreign government were among these criticisms. The Divisional Court did not consider this material and, as a result, did not consider whether Rwanda's promises were credible considering it.
The Supreme Court reached the same conclusion as the Court of Appeal: it is impossible to successfully disregard or minimise the history or the present as the Secretary of State had proposed. The Supreme Court determined that in human rights cases, the court must consider all available evidence, even though the Secretary of State had argued that the Court should defer to the Government's expertise because the case involved an agreement between state parties.
After ruling in favour of the claimants on the refoulement issue, the Supreme Court decided it was not necessary to address the cross-appeal grounds regarding the risk of ill-treatment for the claimants in Rwanda, which violates Article 3 of the ECHR, and whether the Secretary of State should have taken more care to consider the risk of refoulement as required by article 3 or common law.
The cross-appeal on the continued validity of some elements of EU law was decided by the Supreme Court. If these aspects had remained in UK domestic law, it would have meant that sending asylum seekers to a country like Rwanda, with which they had no previous connection, would have been illegal. But the Supreme Court determined that since 2020 legislation had been sufficiently explicit to repeal EU asylum law, the relevant EU statute had not been preserved.
