AAA (Syria) & Ors., R (on the application of) v The Secretary of State for the Home Department

In this judgment I consider a number of applications for permission to appeal against decisions made by the Divisional Court (Lewis LJ and Swift J) in claims for judicial review of what I can for present purposes refer to loosely as “the Rwanda scheme”. Eight such claims were heard over two hearings, in September and October 2022: I will refer to them as AAA, HTN, RM, ASM, AS, AB, SAA and Asylum Aid. The parties to the claims, as they now stand, appear in the title to this judgment. All the eleven individual Claimants are asylum-seekers whom the Government proposed to remove to Rwanda under the scheme: in AAA three organisations were originally also claimants but permission to appeal in their cases has already been refused. The United Nations Commissioner for Human Rights (“UNHCR”) was given permission to intervene in AAA.

So far as relevant for the purposes of these applications, the primary decisions challenged were threefold:

By a judgment handed down on 19 December 2022 the Divisional Court rejected what it characterised as the “generic” grounds of challenge to the relevant decisions and also to the procedural fairness of the system generally; but it found that there were legal flaws in the decision-taking in all of the individual cases. In five of the claims (involving nine claimants) – AAA, HTN, ASM, SAA and AB – all three of the relevant decisions were quashed, but in RM and AS only the human rights decision was quashed.

I should note one point from the judgment of the Divisional Court which is of relevance to one aspect of what follows. In all the cases the Secretary of State had in fact made the relevant decisions twice. The first round of decisions was between late May and early June. However, in each case she re-made all three decisions on 5 July 2022, in response to further materials which she had received in the meantime. The Divisional Court held, plainly rightly, that notwithstanding that they referred back to the earlier decisions it was the later decisions which were the operative decisions and were the proper focus of the Claimants’ challenge.

All the Claimants sought permission from the Divisional Court to appeal on the issues on which they had failed. At a hearing on 16 January 2023 the Court gave permission to appeal on all or some of the grounds advanced in each of the individual cases save SAA and AB. In ASM and Asylum Aid permission was granted on all grounds. I attach an Annex setting out the grounds for which it granted permission in each case: it will be seen that there is a substantial degree of overlap.

Appellant’s Notices have been filed in all eight cases. In the case of the four where the Divisional Court granted permission to appeal on only some grounds, the Claimants have sought permission from this Court to appeal on the remaining grounds. In the cases of SAA and AB permission to appeal is required on all grounds.

I initially reviewed the applications for permission to appeal on the papers in accordance with CPR 52.5 (1). I refused permission to appeal on several grounds: my reasons are given in the orders in question. However, there were a number of grounds in respect of which I directed an oral hearing in accordance with CPR 52.5 (2). That hearing took place on 6 March 2023. A large number of counsel attended, as listed in the title to this judgment. I am grateful for their assistance and that of the solicitors instructing them. It was not possible for me in the time available to reach decisions on the applications for permission to appeal and I accordingly reserved judgment. The hearing was also an occasion to review the arrangements for the substantive hearing. I do not deal with those in this judgment, save to record that that hearing is now listed for four days between 24^th and 27^th April 2023.

In this judgment I give my decisions, with reasons so far as appropriate, in each of the applications for permission. Because these are decisions on permission to appeal and have no status as authority in other cases I have expressed myself more economically than in a full judgment. Among other things, I have not set out the terms of the relevant legislation and rules, and I have generally referred to passages in documents without quoting them or in some cases explaining the status of the documents in question.

I should deal with one point by way of preliminary. Most of the grounds on which the Divisional Court granted permission relate to generic issues: in other words, if the challenge is well-founded the reasoning will apply not only to the decisions taken in the case of the Claimant in question but also to those taken in the cases of all the other Claimants in whose case the relevant circumstances apply. The Divisional Court only permitted one counsel for one party to address it on any particular generic ground, with counsel for the other parties adopting their submissions. In their appeals to this Court, not all the parties have pleaded all the generic grounds, on the basis, as I understand it, that it was sufficient that they be pleaded by the parties whose counsel argued them below. That is a sensible course, but I took the opportunity to confirm with Mr Sheldon, who appeared for the Secretary of State, that she accepted that if the appeal succeeded on any of the generic issues it would be treated as covering any Claimants to whom the relevant reasoning applied.

The Claimants in AAA and HTN are represented by the same solicitors and counsel. Substantially the same issues arise in both and their grounds of appeal are identically pleaded. Permission is sought on grounds (1)-(3) and (5).

Grounds (1)-(3) read:

I propose to give permission on those grounds (although I made it clear to Mr Husain, the Claimants’ leading counsel, that the phrase “including by” in grounds (1) and (2) did not open the door to any arguments not already identified in his skeleton argument). I do so essentially because I regard them as raising issues which are liable to overlap substantially with those raised by ground (4), on which the Divisional Court has already granted permission. If, as it held, there was a compelling reason to give permission on that ground I believe there is a compelling reason to give permission on grounds which may not be easily separable in practice.

Ground (5) reads:

We are concerned with two grounds of appeal, (6) and (7), which I will take in turn.

Ground (6) reads:

The background to this ground can be sufficiently summarised as follows. The Immigration Enforcement Unit in the Home Office had at the relevant date issued a Standard Operating Procedure (“SOP”) for “Referring small boat arrivals into Detained Asylum Casework (DAC) and Migration and Economic Development Partnership (MEDP)”. The introductory section to the SOP, headed “Background”, sets out what are described as “criteria” for consideration of whether individuals arriving by small boat may be suitable for relocation to Rwanda under the MEDP. One of these is that:

It was RM’s case in the Divisional Court that he did in fact have significant vulnerabilities which meant that the “criterion” referred to in that quotation was not satisfied in his case and that the removal decision had been procedurally unfair because he had not been given the opportunity to draw those vulnerabilities to the Home Office’s attention and/or that they had not been taken into account properly or at all.

It was the Secretary of State’s case that the words which I have quoted from the SOP did not state or reflect any policy that no-one would be transferred to Rwanda if they had “significant vulnerabilities or safeguarding concerns” (for short, “with vulnerabilities”). The definitive statement of her policy was to be found in the Inadmissibility Guidance, which says only that decisions as to whether relocation to a third country is safe and appropriate for a particular individual will be judged on case-by-case basis having regard to their individual circumstances. The reference in the SOP on which RM relied merely reflected the fact that in the initial stages priority was to be given to individuals who could be held in detention, which, because of the rules governing detention, would necessarily exclude those with vulnerabilities. That case was stated in full and clear terms at paras. 11.93-100 of the Secretary of State’s skeleton argument below and supported by a witness statement from Mr Ruaridh MacAskill, the Acting Head of the Home Office Third Country Unit.

The Divisional Court addressed this issue at para. 357 of its judgment, where it said:

I would refuse permission on this ground. It is fair to say that the Divisional Court does not explain its implicit conclusion at para. 357 that the SOP does not amount to a policy. But I see no real prospect that if the issue were considered on appeal this Court would reach any different conclusion. The starting-point is that the SOP, being an internal document giving operational guidance to officials, is less likely to be a source for policy than the carefully considered and public Inadmissibility Guidance. But in any event when the passage in question is read in the context of the document as a whole, and in the light of the evidence of Mr MacAskill, which there is no reason to impugn, the Secretary of State’s explanation is in my view entirely convincing. There is nothing inherently implausible about her having a policy which would permit the removal of persons with vulnerabilities if the criteria in the Inadmissibility Guidance were met; and Mr Sheldon pointed out that there were detailed provisions in the MEDP documents about the treatment of such individuals in Rwanda which would be redundant if it was contrary to her policy to transfer them in the first place.

Mr Drabble submitted that Mr MacAskill’s evidence was inadmissible to contradict an unambiguous statement in the SOP. I do not agree. The SOP, when read as a whole, is not in my view unambiguous; and I can see no basis for excluding Mr MacAskill’s evidence. Parts of it are, as Mr Drabble pointed out, hearsay because he says he has derived it partly from discussions with other officials; but that is not objectionable in principle.

I turn to ground (7). This concerns a decision of the Immigration Enforcement Competent Authority (“IECA”) – which is an entity within the Home Office established as part of the National Referral Mechanism (“NRM”) procedure – that there were no reasonable grounds to conclude that RM was a victim of modern slavery (to which I will refer because there is no material difference in this context, as “trafficking”). RM sought judicial review of that decision as part of his claim. The Court dismissed that challenge. RM contends that it was wrong to do so.

I need not set out in full the definition of trafficking to which IECA works, which derives from the European Convention on Action against Trafficking. For present purposes I need only say that it has three elements, conventionally summarised as: (a) the act (“recruitment, transportation, transfer, harbouring or receipt” – for short, “transporting”); (b) the means (broadly, coercion of any kind); and (c) that the act is “for the purpose of exploitation”. “Exploitation” is defined as including forced labour, which is defined by the International Labour Organisation as “all work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily”: Mr Drabble also referred me to Basfar v Wong [2022] UKSC 20, [2022] 3 WLR 208.

RM’s evidence, principally set out in the witness statement submitted to IECA but also contained in the record of his screening interview and the document making the reference to the NRM, can be sufficiently summarised as follows. He is a Kurd of Iranian nationality, now aged 26. He arrived in the UK in a small boat on 14 May 2022. He left Iran because he believed that he was suspected by the authorities of Kurdish separatist sympathies. His uncle paid people smugglers to arrange his journey to the UK. In the course of the journey he was subjected to various kinds of threats and ill-treatment by the smugglers, but what he relies on specifically is the fact that he was on occasions required by them to perform what he characterises as forced labour. This was of two kinds:

IECA’s “no reasonable grounds” decision is dated 15 July 2022. It made the point that people-smuggling as such is not a form of trafficking: its purpose is not the exploitation of the people being smuggled but their illegal transportation, for reward, to another country, at which point the transaction ends. It observed that the fact that the smugglers in RM’s case used threats and force in the course of the journey was not for the purpose of exploitation but “as a catalyst to complete the task”. As for the submission that he had been made to carry out forced labour, its conclusions were:

The Divisional Court records Mr Drabble’s criticisms of that reasoning at paras. 347-348. At paras. 353-354 it says:

Mr Drabble’s skeleton argument focuses on IECA’s reasoning about the tasks which RM says he had to carry out in order to obtain food. He submits that in characterising that as “economic necessity” IECA failed to have regard to the context. RM was in the power of the smugglers, who had made threats of violence, and he had no opportunity to work anywhere else: in practice if he was to get food to survive he had to do the work. He emphasises that IECA was not concerned with a definitive finding that RM had been a victim of trafficking but only with whether there was “credible suspicion”; also that at this stage I am concerned only with whether this ground of appeal is arguable. The skeleton argument does not address the issue about carrying the boat, and in his oral submissions Mr Drabble accepted that that was the weaker of the two bases.

I do not believe that if this ground went to a full appeal there is a real prospect that IECA would be held to have made any error of law. Although its decision was indeed only concerned with whether there were credible grounds to believe that RM was a victim of trafficking, it had before it the entirety of the available evidence and it was in a position to reach a firm conclusion on the basis of RM’s own account. As to that, his witness statement certainly says that the smugglers did on occasion use threats and violence, but his account of why he undertook the tasks in question (other than carrying the boat) does not refer to any such threats: he agreed to work because he needed to eat. But even if it is arguable that in some circumstances such a transaction could amount to “forced labour” in the relevant sense it is not enough for him to show that he suffered exploitation: the act of transportation has to be done “for the purpose of” that exploitation. That was plainly not the case. It is quite unrealistic to think that part of the smugglers’ purpose in transporting RM to the UK was to get him to perform the kind of incidental tasks that he describes – carrying boxes to and fro and washing their clothes. As I understand it, this is the point being made by the Divisional Court at para. 354. As regards his being made to carry the boat the same point is even more obvious: RM was not being transported in order to help carry a boat.

I accept, of course, that it is always important to have regard to the context, and I have no reason to doubt RM’s account that his experience of his journey, including his treatment by the smugglers, was harrowing. But people smuggling is not the same as people trafficking, and IECA’s task was to establish whether there was anything in RM’s account that meant that he was being transported “for the purpose of exploitation”. I can see no arguable error in its conclusion that there was not.

I accordingly refuse permission to appeal on ground (7).

AS seeks permission on five grounds which I take in turn. Each ground is pleaded in the form of a short headline, followed by several paragraphs of exposition for each, in addition to the skeleton argument.

Headline ground 1A reads:

For the reasons given above in relation to RM’s ground (6), there is no real chance that if the appeal were to proceed this Court would accept that proposition. Ms Naik, representing AS, drew my attention to two entries in his GCID notes in May 2022 recording that there were no safeguarding concerns or vulnerabilities; but since he was in detention that is wholly consistent with the Secretary of State’s evidence.

The Secretary of State in her para. 19 representations makes the further point that in any event AS had the opportunity to, and did, make representations about his medical condition prior to the decision of 5 July 2022 and that they were expressly considered in the inadmissibility decision letter. Specifically, the letter refers to representations from his solicitors, a rule 35 report dated 28 May 2022 which referred to mental health issues, and a psychiatric report from a Dr Olowookere dated 9 June 2022 which diagnosed him as suffering from moderate depression and PTSD. Ms Naik responded that that was not the same point, because AS’s representations had not been directed to a specific criterion appearing from the SOP; but that is not an answer if, as I believe is clear, there is no such criterion. (I note in passing that the terms of AS’s decision letter tend to confirm the Secretary of State’s position that she will take an individual’s medical condition into account as part of her consideration of all the circumstances but will not treat vulnerability as a criterion preventing removal.)

Headline ground 1B reads:

I do not believe that this ground is arguable. As noted above, AS did have an opportunity to, and did, draw the Secretary of State’s attention to his medical vulnerabilities and they were considered in the decision letter of 5 July. Ms Naik’s point is that that letter says that an inadmissibility decision is being made for the reasons given in it “and in the previous letter”, i.e. the letter conveying the “first-round” decision referred to in para. 4 above, which in AS’s case was dated 3 June (although sometimes referred to as dated 2 June); that at the earlier date no proper opportunity to make representations had been made; and that accordingly the later decision remained tainted by the earlier unfairness. I see no prospect that this Court would accept that argument. The operative decision is that of 5 July. Since the Secretary of State considered the medical evidence submitted in that letter, any failure to consider such evidence first time round is irrelevant.

Headline ground 1C reads:

I note that at the date that the form was sent the Secretary of State did not have the medical evidence that was considered in her decision of 5 July, though I appreciate that AS would say that that was because he had not had the opportunity to supply it. However, even if the failure to supply the information at that stage was culpable that does not mean that it could not be supplied later. In fact, the Secretary of State says in terms in her decision letter that on transfer she will notify the Rwandan authorities of AS’s medical needs so that they can be catered for on arrival, and there is no reason to suppose that that would not have occurred if his transfer had proceeded. That notification would in principle ensure that he was in a position to receive any necessary care (subject to any question about the standards of healthcare available in Rwanda – but that is not the issue being raised as regards this ground).

That being so, the allegation that the UK Government was in breach of the MoU goes nowhere. I am not in fact sure that the failure to supply the information to the GoR in advance of its decision to accept AS was a breach of para. 5.2.2. But, even if it was, such a breach would be a matter between the two governments: the MoU is an international treaty and can confer no rights on individuals who may be transferred under it.

For those reasons ground 1C has no real prospect of success.

Headline ground 2 reads:

It is clear from the expository paragraphs (and the skeleton argument) that the alleged inter-relationship between the inadmissibility and human rights decisions consists in the fact that the human rights decision of 3 June was quashed because the decision-maker had failed to have regard to the rule 35 report in AS’s case. That report, Ms Naik says, was relevant to the question of whether Rwanda was a safe third country, because the mental condition which it evidenced meant that he might suffer “article 3 harm” if relocated there. She points out that the inadmissibility decision of the same date cross-refers to the human rights decision.

I do not believe that this argument has any real prospect of success. The operative human rights decision is that of 5 July not 3 June. Although it too was quashed, that was not for the same reason as the earlier decision: as noted earlier, by that time the Secretary of State had had, and considered, the rule 35 report. Rather, the reason was the Secretary of State had failed to take into account a witness statement from AS’s son, who lives in the UK, giving evidence about his relationship with his father. AS advances no argument for any inter-relationship between that ground of invalidity and the issue of whether he would suffer article 3 harm in Rwanda; and clearly there is none.

Headline ground 3 reads:

The Divisional Court addressed the Claimants’ case based on Gillick at para. 72 of its judgment. As I read it, it rejected that case essentially on the basis that the Inadmissibility Guidance merely gave effect to the relevant Immigration Rules in the context of a lawful decision that Rwanda was a safe third country. But if the Claimants succeed on their other grounds of appeal that basis disappears, and it would in my view be arguable that the Inadmissibility Guidance required case-workers to act unlawfully to the extent that it required them to treat Rwanda as a safe third country.

I accordingly give permission to appeal on this ground. I can at present see no basis for the argument that the test in Gillick, as explained in A, should be modified in cases involving a potential breach of article 3 of the Convention (nor indeed why that proposition is likely to be necessary to AS’s case); but it would not be straightforward to try to excise it at this stage.

For those reasons I refuse permission on grounds 1A-1C and 2, but grant it on ground 3.

There are two outstanding grounds of appeal in AB’s case – (c) and (d), which raise issues about, respectively, the procedural fairness of the system and the Tameside duty. The Divisional Court refused AB permission to appeal on those grounds on the basis that at the hearing in September 2022 the grounds which he had been permitted to advance were limited to two quite different grounds (namely (1) whether the Secretary of State had erred in law by failing to publish certain guidance and (2) discrimination): see para. 43 of the consequentials judgment. As I understand it, this restriction reflected the fact that certain aspects of his challenge had been stayed because IECA had decided that AB was a victim of trafficking, which meant that his position would have to be reconsidered.

I explored the position with Mr Ahmed, who represented AB at the hearing, and also with Mr Sheldon. I was at that stage attracted by the argument that, since the Court had in some of the other appeals found that permission to appeal should be granted on (essentially) grounds (c) and (d), AB was entitled to permission on those grounds also. On reflection, however, I think that the Divisional Court was right. This is not a case where a party had a right to argue a point below but chose to adopt the submissions on that point made on behalf of other parties: the effect of the Court’s order was that as a result of the stay AB did not have the right to advance these points at all at the hearing in September.

I would accordingly refuse permission to appeal on both grounds. AB is not disadvantaged by this. As I pointed out to Mr Ahmed, even if he (or Mr Metzer KC, who has signed AB’s skeleton argument) had been instructed to appear, they would almost certainly not have had the opportunity to make substantive submissions because this Court, like the Divisional Court, will only allow submissions on generic grounds to be made by one counsel, being one who had argued the ground in question below. And of course, as noted at para. 9 above, he will have the benefit of any success by other parties on the generic grounds that is relevant to the circumstances of his case.

Three grounds of appeal by SAA were initially to be considered at the hearing. One – ground 6 – fell away because SAA did not comply with a condition that he supply copies of the documents necessary for me to consider it. Ground 4 was in two parts. As regards one part I refused permission earlier on the papers. As regards the other, which appeared to adopt wholesale all other generic grounds advanced by other Appellants, I understood Mr Gill, who appeared for SAA, to have confirmed at the hearing that he no longer wished to pursue it, on the understanding noted at para. 9 above. I have recently received an e-mail from SAA’s solicitors the effect of which appears to be that that was a misunderstanding. I will make no order in that regard until the position has been clarified.

The third ground – ground 3 – challenges the Divisional Court’s dismissal of SAA’s case below that the relevant decisions were unlawful because they involved breaches by the Secretary of State of her obligations under the data protection legislation: see paras. 127-149 of its judgment. The basis on which it dismissed SAA’s case was that even if the Secretary of State had committed the breaches alleged none of them was of a character which rendered the substantive decisions unlawful: although it went on to consider whether the breaches had in fact occurred, it avowedly did so on a summary basis. The pleaded ground simply avers that the Court was wrong to take that approach and to fail to treat SAA’s case as to breach adequately, but that case is elaborated in detail over some sixteen pages in the skeleton argument.

I am far from persuaded that this ground is arguable. But in the end I have concluded that the issues which it raises, which are of a rather different character from the others that I have had to consider, are such that I cannot fairly refuse permission on the basis of the submissions which were possible at last week’s hearing. I believe that the right course is to defer SAA’s application on this ground to the full hearing in April. If the Court decides to grant permission, it may proceed to determine it on that occasion, and the parties should be prepared for that eventuality, but it may decide that it is better not to do so, in whole or in part. Mr Gill indicated that if permission to appeal were given he might want to reconsider parts of his skeleton argument. Although I have not granted permission to appeal, I will give him permission to submit a revised skeleton argument, on the understanding that it will not raise new points, and for the Secretary of State to submit a skeleton argument in response, within the same time limits as have been set for the Claimants in whose case permission to appeal has been granted.