High Court begins hearing lead cases arguing UK is not a safe third country due to Rwanda policy

The High Court has begun hearing two “lead” cases from asylum seekers who argue that the United Kingdom is not a “safe third country” due to the risk arising from their potential onward transfer to Rwanda.

Responding to the UK’s exit from the European Union on January 31st, 2020, Minister for Justice Helen McEntee designated Britain and Northern Ireland as safe for the purposes of the International Protection Act of 2015.

This enables the Minister to determine an international protection application is inadmissible if the applicant has travelled from the UK and relevant criteria are met. The person can be returned to the UK for their asylum application to be considered there.

Hugh Southey KC, representing the applicants in the lead cases, told the High Court on Tuesday that the designation of the UK as a safe third country is “not made out”.

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He said Ireland cannot absolve itself of its responsibilities by sending people to a second country while knowing a third country that does not respect human rights will be the “ultimate destination”.

The UK’s Supreme Court found last November that prime minister Rishi Sunak’s plan to fly asylum seekers to Rwanda is unlawful, as there is a real risk that people’s claims will be wrongly determined there. The UK government is now proposing new laws to overcome the legal obstacles raised.

Mr Southey, with Eamonn Dornan BL, said there is a “real risk” that the UK will shortly have a provision that allows the removal of asylum seekers to Rwanda.

He said the government there is promoting legislation to facilitate its Rwanda policy by introducing a law that “on the face of it is contrary to human rights obligations”.

These are political developments the Minister for Justice here must review in deciding whether asylum seekers can be returned to the UK, he said. A decision-maker should, he said, not only consider the current state of the law but must consider what is “coming down the pathway”.

The Minister has not formally reviewed the situation in the UK since the end of 2020, he added, yet “clearly” the asylum system there is “very significantly different” now. She must keep up to date with changes but the evidence before the court is that “simply has not happened”, counsel said.

One of the applicants in the case seeks to quash the Minister’s decision to transfer him to the UK after finding he would not be subjected to refoulement.

The other wants to overturn the International Protection Appeals Tribunal’s finding that his application for protection in the State was inadmissible due to the designation of the UK as a safe third country.

Their cases have been selected to represent a group of High Court judicial review challenges to decisions related to UK transfers and fears of being sent on from there to Rwanda.

The hearing before Ms Justice Siobhán Phelan continues on Wednesday, when the State is expected to begin its defence.

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