(i) International law

19. Under international law, states have the right to control the entry, residence and expulsion of aliens, and to counter attempts to circumvent immigration restrictions, subject to their treaty obligations and to any relevant principles of customary international law. One limitation of the right to expel aliens is the principle of non-refoulement, which is enshrined in several international treaties which the United Kingdom has ratified. As will appear, the term bears slightly different meanings in different contexts.

20. The Refugee Convention, which has 146 states parties including the United Kingdom, provides in article 33(1):

Article 33(1) has long been interpreted by the courts of this country as prohibiting not only the direct return of refugees to the country where they fear persecution, but also their indirect return via a third country: R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 532.

21. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (“UNCAT”), which has 173 states parties including the United Kingdom, provides in article 3(1):

22. The United Nations International Covenant on Civil and Political Rights of 1966 (“ICCPR”), also with 173 states parties including the United Kingdom, is interpreted by the United Nations Human Rights Committee, which monitors implementation of the Covenant, as imposing a similar obligation:

(General Comment 31 (2004), para 12). Article 6 of the Covenant protects the right to life, and article 7 prohibits torture or cruel, inhuman or degrading treatment or punishment.

23. The ECHR, with 46 states parties including the United Kingdom, is interpreted in the same way. It has been understood since the 1989 judgment of the European Court of Human Rights (“the European Court”) in Soering v United Kingdom (1989) 11 EHRR 439 (“Soering”) that the duty of the contracting parties under article 3 not to subject persons to torture or to inhuman or degrading treatment also imports an obligation not to remove persons to other states where there are substantial grounds for believing that they would be at real risk of such ill-treatment. This is essentially the same approach as is adopted under the UNCAT test (para 21 above) and in relation to the ICCPR (para 22 above). It is also similar to the “real risk” test long adopted by domestic courts in relation to the “safe third country” provisions of our domestic law, as explained at para 32 below. Soering was a case concerned with extradition, but the principle was soon applied to removal cases generally.

24. As a consequence, article 3 prohibits the expulsion of asylum seekers to countries where they face the risk of refoulement (direct or indirect) to their country of origin: see MSS v Belgium and Greece (2011) 53 EHRR 2 (a case concerned with the removal of an asylum seeker to a country through which he had transited). In relation to that risk, the European Court observed in Ilias v Hungary (2019) 71 EHRR 6 (another case concerned with the removal of asylum seekers to a country through which they had transited) at para 131 that “the main issue … is whether or not the individual will have access to an adequate asylum procedure in the receiving third country”. That issue is important in cases of this kind because if asylum seekers do not have access to such a procedure there will be a real risk of genuine refugees being refouled, either because their claims are not considered at all or because they are not determined properly. Whether asylum seekers removed to Rwanda would have access to an adequate asylum procedure is therefore one of the principal issues in the present proceedings.

25. It may be that the principle of non-refoulement also forms part of customary international law. The United Kingdom has subscribed to this view, along with the other states parties to the Refugee Convention, in the 2001 Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (UN Doc HCR/MMSP/2001/09). The fourth recital to the preamble to the declaration acknowledged the continuing relevance and resilience of the international regime of rights and principles established for the protection of refugees, “including at its core the principle of non-refoulement, whose applicability is embedded in customary international law”. The significance of non-refoulment being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect. However, as we have not been addressed on this matter, we do not rely on it in our reasoning.

26. The principle of non-refoulement is therefore given effect not only by the ECHR but also by other international conventions to which the United Kingdom is party. It is a core principle of international law, to which the United Kingdom government has repeatedly committed itself on the international stage, consistently with this country's reputation for developing and upholding the rule of law.

(ii) Domestic law

27. The principle of non-refoulement has also been given effect in our domestic law by a number of statutes enacted by Parliament. First, section 2 of the Asylum and Immigration Appeals Act 1993 (“the 1993 Act”) provides:

In that context, “the Convention” is defined in section 1 as meaning the Refugee Convention. The Immigration Rules are the rules laid down by the Secretary of State as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons required to have leave to enter: section 3 of the 1971 Act (quoted in para 122 below). Asylum claims fall within the scope of that provision, since they are claims for leave to remain in the United Kingdom, made by persons who require leave to enter. It is therefore unlawful, under section 2 of the 1993 Act, for the Secretary of State to lay down a rule as to practice in relation to asylum claims which would be contrary to the principle of non-refoulement laid down in article 33(1) of the Refugee Convention. In the event, as we have explained, paragraph 345B of the Immigration Rules fulfils that requirement by providing that a country is a safe third country only if, inter alia, “the principle of non- refoulement will be respected in that country in accordance with the Refugee Convention”.

28. Secondly, the Human Rights Act gives domestic effect to the ECHR. Under section 6, it is unlawful for a public authority to act in a way which is incompatible with a Convention right, such as the right guaranteed by article 3 of the ECHR. The Secretary of State is a public authority for this purpose. Section 2 requires domestic courts to take into account the judgments of the European Court when determining a question which has arisen in connection with a right guaranteed by the ECHR. Domestic courts, including this court and its predecessor, the Appellate Committee of the House of Lords, have long applied the Human Rights Act in relation to the removal of persons from the United Kingdom to other countries in accordance with the principles laid down by the European Court in cases such as Soering and MSS v Belgium and Greece. Those principles are not questioned by any party to this appeal. It is therefore unlawful, under section 6 of the Human Rights Act, for the Secretary of State to remove asylum seekers to countries where there are substantial grounds to believe that they would be at real risk of ill-treatment by reason of refoulement.

29. Thirdly, section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), read together with section 84(1) of that Act, confers a right of appeal against the refusal of a protection claim (defined by section 82(2) as including a claim that the removal of a person from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention) on the ground that removal of the person from the United Kingdom would breach the United Kingdom's obligations under that Convention. Section 82(1), read together with section 84(2), also confers a right of appeal against the refusal of a human rights claim (defined by section 113(1) as a claim that to remove the person from the United Kingdom would be unlawful under the Human Rights Act) on the ground that removal of the person from the United Kingdom would be unlawful under section 6 of that Act. The principle of non- refoulement is therefore given effect by sections 82 and 84 of the 2002 Act, both as it is set out in the Refugee Convention and as it applies under the Human Rights Act.

30. It is also relevant to note section 94(7) of the 2002 Act, under which, read with section 94(1), the Secretary of State may certify a protection claim or human rights claim as clearly unfounded, and thereby remove the claimant's rights of appeal, if:

Section 94(8) provides:

The premise of these provisions appears to be that if there is no reason to believe that a person's rights under the ECHR will be breached in the country to which he is proposed to be removed, then it follows that the person will not be removed from that country to another country otherwise than in accordance with the Refugee Convention. That is consistent with the view that the ECHR protects against refoulement, as the European Court and domestic courts have held.

31. Fourthly, as we have explained, paragraph 17 of Schedule 3 to the 2004 Act enables the Secretary of State to certify, where it is proposed to remove an asylum seeker to a country (“a specified state”) of which he is not a national or citizen, that:

32. Paragraph 17(c)(ii) reflects the principle of non-refoulement as set out in article 33(1) of the Refugee Convention. At the time of the decisions with which these proceedings are concerned, such a certificate had the effect, under paragraph 18, of disapplying section 77 of the 2002 Act, which prohibits the removal of an asylum seeker from the United Kingdom while his or her claim for asylum is pending (paragraph 18 has since been repealed and replaced by corresponding provisions in Schedule 4 to the Nationality and Borders Act 2022, which amend section 77 of the 2002 Act; but paragraph 18 continues to apply to the decisions with which these proceedings are concerned). The Divisional Court accordingly considered that certification under paragraph 17 was an integral part of the Secretary of State's decisions to remove asylum claimants to Rwanda: para 12. It has long been held that a certificate of the kind for which paragraph 17(c)(ii) provides can be issued only where there is no real risk that the asylum seeker will be sent to another country otherwise than in accordance with the Refugee Convention: see, for example, R v Secretary of State for the Home Department, Ex p Canbolat [1997] 1 WLR 1569.

33. Asylum seekers are thus protected against refoulement not only by the Human Rights Act but also by provisions in the 1993 Act, the 2002 Act and the 2004 Act, under which Parliament has given effect to the Refugee Convention as well as the ECHR.

(i) The correct legal approach to the evidence

44. There are a number of decisions of the European Court and of domestic courts which bear on the correct approach to adopt to the evidence in a case of the present kind. First, the judgment of the European Court in Ilias v Hungary makes it clear that a state party cannot remove asylum seekers to a third country without determining their asylum status unless it has established that there are adequate procedures in place in that country to ensure that their asylum claims are properly determined and that they do not face a risk of refoulement to their country of origin. The court stated in that case (para 134):

45. The European Court made it clear that this requires an assessment of how the asylum system in the receiving state operates in practice, having regard to deficiencies identified by bodies such as UNHCR. In that regard it stated (para 141):

46. The Secretary of State relies on the assurances provided by the Rwandan government in the MEDP as meeting any concerns arising from the evidence about the past and present operation of the Rwandan asylum system. In essence, the Secretary of State submits that, notwithstanding any problems that there may have been in the past or that may remain at present, the MEDP sets out arrangements for the future which provide adequate safeguards against refoulement, and the Rwandan government can be relied on to fulfil its undertaking to process the claims in accordance with those arrangements. It is therefore necessary to refer to authorities concerned with the approach to be adopted where the safety of a third country depends on assurances given by its government about the treatment which individuals who are sent there will receive.

47. The approach to be adopted in circumstances of that kind was considered by the European Court in Othman v United Kingdom (2012) 55 EHRR 1 (“Othman”). The case concerned the sufficiency of assurances given by the Kingdom of Jordan to the United Kingdom in the context of a contention that deporting the applicant to Jordan would put him at real risk of ill-treatment. The court observed at para 187 that assurances are not in themselves sufficient to ensure adequate protection against the risk of ill treatment:

48. In that regard, the court listed at para 189 a number of factors which were relevant. The list was not intended to be exhaustive, and in some respects reflected the particular circumstances of the case before the court. What is more important, in the context of the present case, is the European Court's emphasis on the need to carry out a fact-sensitive examination of how assurances will operate in practice, in the circumstances prevailing at the material time. Several of the factors mentioned are, however, relevant to the present case: for example, the disclosure of the terms of the assurances to the court, the general human rights situation in the receiving state, the receiving state's laws and practices, its record in abiding by similar assurances, the existence of monitoring mechanisms, and the examination of the reliability of the assurances by the domestic courts of the sending state.

49. The approach to be adopted where diplomatic assurances are relied on was discussed by this court more recently in Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14; [2021] 1 WLR 2569. There, the court considered the sufficiency of assurances given by the government of Hungary to the United Kingdom in the context of a contention that extraditing Mr Zabolotnyi to Hungary would put him at real risk of ill-treatment. It was held that the court was required to undertake a free evaluation of the assurance, which required the court to examine and assess all relevant evidence (para 50). In particular, past breaches of similar assurances by the requesting state, whether provided to the United Kingdom or to a third state, were relevant to the question whether the requesting state could be relied upon to comply with its assurance on the present occasion (ibid). In that regard, Lord Lloyd-Jones stated, in a judgment with which the other members of the court agreed (paras 46-47):

(ii) The approach adopted by the Divisional Court

50. The Divisional Court did not follow this approach in its consideration of the evidence. As we shall explain when we discuss Issue 3, the Divisional Court had before it evidence that there were serious and systemic defects in Rwanda's procedures and institutions for processing asylum claims; that it had a history of acting in breach of the principle of non-refoulement, which had continued during the negotiation of the MEDP and following its execution; and that it had, in the recent past, failed to abide by similar assurances which it had given to another foreign government. The Divisional Court did not engage with this evidence, and consequently failed to examine the reliability of the assurances given by Rwanda in the light of that evidence.

51. Instead, the Divisional Court began its consideration of the issue by stating that its approach “will rest on a recognition of the expertise that resides in the executive to evaluate the worth of promises made by a friendly foreign state” (para 63). It gave three reasons why the Secretary of State was entitled to rely on the assurances. First, the United Kingdom and Rwanda had a well-established relationship (para 64). Secondly, the terms of the MEDP were specific and detailed (para 65). Thirdly, a senior official at the Foreign, Commonwealth and Development Office (“the FCDO”) stated in a witness statement that the government was confident that Rwanda would honour its obligations under the MEDP (para 66). The last of these reasons was crucial. The court said that it could go behind that opinion “only if there were compelling evidence to the contrary”.

52. We consider that that was a mistaken approach. As authorities such as Othman and Zabolotnyi make clear, the court has to make its own assessment of whether there are substantial grounds for believing that there is a real risk of refoulement. It is not required to accept the government's evaluation of assurances unless there is compelling evidence to the contrary. Of course, the court will attach weight to the government's view as to the value of assurances given by another country, particularly where its view reflects the advice of officials with relevant experience and expertise. The FCDO in particular has long experience of diplomatic relations with other countries, and the advice of its officials can assist ministers to reach an informed view as to the likelihood of the country in question complying with assurances. Other departments may also have officials who are well-qualified to give such advice. Ministers do not, however, necessarily act on the advice of their officials.

53. In the present case, following the initial stage of identifying potential partner countries (when FCDO officials advised that Rwanda should not be prioritised), advice came primarily from Home Office officials. They prepared the CPINs mentioned in para 6 above, on the basis of desk-based research into the Rwandan asylum system, and on what they were told during two short visits to Rwanda in January and March 2022. Further work was also done after the MEDP had been concluded. According to the evidence of Home Office officials, the CPINs underpinned the government's decision to enter into the MEDP. However, possibly because of the pressures under which they had to work, the officials who prepared the CPINs relied heavily on assurances by the Rwandan government, without close examination of supporting evidence, or consideration of publicly available material which placed some of those assurances in question.

54. Those shortcomings were highlighted when a review of the CPINs was undertaken in July 2022 for the Independent Advisory Group on Country Information (“IAGCI”), which provides advice to the Chief Inspector of Borders and Immigration in order to allow him to discharge his duty under section 48(2)(j) of the UK Borders Act 2007. The researcher responsible for the review criticised aspects of the way in which the CPINs were prepared, including “very limited critical information on the Rwandan asylum system” and “fundamental gaps of information and unanswered questions with regards to procedural practicalities and implications”.

55. As that evidence indicates, the government is not necessarily the only or the most reliable source of evidence about matters which may affect the risk of refoulement: such as, to mention some of the factors referred to in Othman and Zabolotnyi, the general human rights situation in the receiving state, the receiving state's practices, and its record in abiding by similar assurances, whether given to the United Kingdom or to other states. Where evidence bearing on factors such as these is adduced from sources other than the government, the court has to consider it along with the government's assessment of any assurances given. The court does not necessarily have to resolve conflicts in the evidence: the question it has to decide is not whether asylum seekers removed to the country in question would in fact be subjected to refoulement, but whether there are substantial grounds for believing that they would be at risk of refoulement. In deciding that question, the court has to form its own view in the light of the evidence as a whole. In doing so, the court brings to bear its own expertise and experience: weighing competing bodies of evidence, and assessing whether there are grounds for apprehending a risk, are familiar judicial functions.

56. We are therefore unable to accept the suggestion, made on behalf of the Secretary of State, that assessing the value of assurances given by another country, in the present context, is analogous to assessing whether a particular course of action is in the interests of national security, and that the role of the court is correspondingly limited, as explained in cases such as Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 920 (“Rehman”) and R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] AC 765 (“Begum”). In Rehman itself, the House of Lords made it clear that, even in the context of questions of national security, an appeal to the courts may turn upon issues which at no point lie within the exclusive province of the executive. As Lord Hoffmann stated (para 54):

Similarly, in Begum Lord Reed (with whose judgment the other members of the court agreed) stated (para 69) that “if a question arises as to whether the Secretary of State has acted incompatibly with the appellant's Convention rights, contrary to section 6 of the Human Rights Act, [the court] has to determine that matter objectively on the basis of its own assessment”.

57. The present case raises an issue precisely of the kind contemplated in those citations. As we have explained, the court is itself required by law to form a view as to whether there are substantial grounds for believing that asylum seekers who are removed to Rwanda are at risk of refoulement, in the light of all the evidence bearing on that issue. The government's assessment of whether there is such a risk is an important element of that evidence, but the court is bound to consider the question in the light of the evidence as a whole and to reach its own conclusion.

58. Furthermore, as the Lord Chief Justice pointed out in the present case (para 471), even if the court is not institutionally as well equipped as the government to carry out an evaluation of a diplomatic assurance, the position is different “where the assessment of future conduct engages practical considerations which arise from past conduct”. As he observed (ibid):

59. As we have explained, however, the Divisional Court decided that it could go behind the government's opinion only if there were compelling evidence to the contrary. Following that approach, the Divisional Court did not consider that such evidence existed (para 66). In that regard, it referred to two matters which had been raised by UNHCR.

60. The first was evidence that Rwanda had failed to abide by assurances which it had given to the government of Israel under an agreement for the removal of asylum seekers from Israel to Rwanda. In that regard, the Divisional Court stated (para 68):

61. This was an inadequate treatment of the evidence in question, which we shall discuss when dealing with Issue 3 below. Evidence of a failure to abide by earlier assurances, given to another country in a similar context, was relevant to the assessment of risk, as was noted in Zabolotnyi at para 46 (cited at para 49 above). The government's failure to consider it did not mean that it could or should be ignored by the court.

62. The second matter raised by UNHCR was evidence of Rwanda's history of refoulement, and of defects in its asylum system, in the light of which UNHCR concluded that Rwanda could not be relied upon to comply with its obligations under the Refugee Convention (or, therefore, with the obligations it had assumed under the MEDP). The Divisional Court was dismissive of this evidence, and did not attempt to engage with it. It stated at para 71 that the evidence of UNHCR “carries no special weight”. It went on to state that the government's conclusion that Rwanda would act in accordance with the terms of the MOU and the Notes Verbales “rests on HM Government's experience of bilateral relations extending over almost 25 years, and the specific experience of negotiating the MOU over a number of months in 2022”. It stated that it had to decide whether, on the totality of the evidence, the Secretary of State's opinion was undermined to the extent that it could be said to be legally flawed, and concluded that it was not.

63. This again was an inadequate treatment of the evidence in question, which we shall discuss when dealing with Issue 3. Evidence that Rwanda had a history of refoulement, and of defects in Rwanda's asylum system, was relevant to an assessment of whether persons removed to Rwanda in order for their claims to asylum to be decided by the Rwandan authorities were at risk of refoulement. As the European Court stated in Ilias v Hungary (para 134, cited at para 44 above), it is the duty of the removing state to examine thoroughly the question whether or not there is a real risk of the asylum-seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. It is clear from the evidence that government officials made serious efforts to comply with that duty, although they were hampered by circumstances, including restrictions on their ability to hold discussions with UNHCR and other non-governmental organisations. The same duty also applies to the courts, as an organ of the state, when the issue is raised before them.

64. The Divisional Court's view that the evidence of UNHCR carried no special weight was a further error. Of course, the weight to be attached to evidence is always a matter for the court, and will depend on the circumstances. However, a number of factors combined in the present case to render the evidence of UNHCR of particular significance.

65. The first relevant factor is the status and role of UNHCR. It is entrusted by the United Nations General Assembly with supervision of the interpretation and application of the Refugee Convention: see the Statute of the Office of the United Nations High Commissioner for Refugees, annexed to UN General Assembly Resolution 428(V), 14 December 1950. Under article 35 of the Refugee Convention, states parties undertake to co-operate with UNHCR in the exercise of its functions, and to facilitate its duty of supervising the application of the provisions of the Convention. Reflecting those circumstances, it is well established that UNHCR's guidance concerning the interpretation and application of the Refugee Convention “should be accorded considerable weight”: Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, para 36. In IA (Iran) v Secretary of State for the Home Department [2014] UKSC 6; [2014] 1 WLR 384, para 44, this court stated that “the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision-making in the field of refugee status determinations must invest its decisions with considerable authority”.

66. The second factor, mentioned in that dictum, is UNHCR's expertise and experience. That factor was also emphasised by this court in R (EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12; [2014] AC 1321, when considering the approach which should be adopted to evidence provided by UNHCR in relation to the risks involved in removing asylum seekers to another country. Lord Kerr of Tonaghmore, with whose judgment the other members of the court agreed, referred (para 72) to “the unique and unrivalled expertise of UNHCR in the field of asylum and refugee law”, and expressed agreement with the observations of Sir Stephen Sedley in the court below [2013] 1 WLR 576, para 41, which he quoted at para 71:

67. As was mentioned in that passage, considerable weight is given to the evidence of UNHCR by the European Court. In MSS v Belgium and Greece, for example, the court attached “critical importance” (para 349) to UNHCR's concerns about the treatment of asylum seekers in Greece. In Ilias v Hungary, UNHCR's reports were described as “authoritative” (para 141, quoted at para 45 above). For the reasons we have explained, it is unsurprising that that should be so; and it is a factor which is relevant to the approach of domestic courts when considering asylum questions under the ECHR.

68. UNHCR's evidence will naturally be of greatest weight when it relates to matters within its particular remit or where it has special expertise in the subject matter. Its evidence in the present case concerns matters falling within its remit and about which it has undoubted expertise. As the Lord Chief Justice observed in the present case, UNHCR “has unrivalled practical experience of the working of the asylum system in Rwanda through long years of engagement” (para 467). It has been operating permanently in Rwanda since 1993, and had 332 staff there at the time of its evidence in these proceedings. Its role in Rwanda includes assisting asylum seekers and refugees, funding and training non-governmental organisations working with the Rwandan asylum system, dealing with officials responsible for asylum decision-making, and engaging with the relevant department of the Rwandan government over the management of refugee camps. Although UNHCR has no official role in Rwanda's asylum system, the Rwandan authorities have, albeit intermittently, sent it copies of asylum decisions, and UNHCR receives information from asylum-seekers and NGOs, and through communications with relevant officials. UNHCR is therefore able to collate data and gain insight into the practical realities of Rwanda's asylum system. Its experience was recognised by Home Office officials. They reported that the Rwandan government depended heavily on UNHCR and other non-governmental organisations for delivering its asylum and refugee processes, and that UNHCR had undoubted expertise and experience of managing part of the refugee process, as well as knowledge of the Rwandan system more generally.

69. As the Lord Chief Justice noted at para 467, UNHCR can be said to have an institutional interest in the outcome of these proceedings, since it has adopted the position (set out in its Guidance Note on bilateral and/or multilateral arrangements of asylum-seekers) that asylum seekers and refugees should ordinarily be processed in the territory of the state where they arrive or which otherwise has jurisdiction over them.

The fact that UNHCR has adopted that position is a factor to be taken into account when assessing its evidence. However, its evidence and submissions were presented with moderation, and did not appear to reflect a partisan assessment. It has also to be borne in mind that, as a responsible United Nations agency accountable to the General Assembly, UNHCR will not lightly make statements critical of any state in which it operates.

70. Drawing these threads together, it is apparent from the factors which we have mentioned and the authorities which we have cited that particular importance should have been attached to the evidence of UNHCR in the present case. That is not to say that its evidence should necessarily be decisive or pre-eminent. In the circumstances of the present case, however, its evidence on significant matters of fact is essentially uncontradicted by any cogent evidence to the contrary, as the Court of Appeal explained (eg at para 136). It should not have been treated as dismissively as it was by the Divisional Court.

71. Finally, in relation to this matter, we note that the Divisional Court considered that it had to decide whether, on the totality of the evidence, the Secretary of State's opinion was undermined to the extent that it could be said to be legally flawed (para 71). As we have mentioned, it is difficult to be certain what the court meant. However, the focus of the Soering test, which the Divisional Court had to apply, is not on whether there were legal flaws in the Secretary of State's decision, but on whether there were, as a matter of fact, substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement. That was an issue on which UNHCR's evidence about defects in Rwanda's asylum procedures had a material bearing.

(iii) Conclusion in relation to Issue 2

72. For all these reasons, we conclude that the Divisional Court erred in its approach to the evaluation of the evidence, and that the Court of Appeal was accordingly entitled to interfere with its conclusion.

(i) The general human rights situation in Rwanda

75. Rwanda is a country which has emerged from one of the most appalling periods of violence in modern history. Ethnic rivalry led to genocide in 1994, when over 500,000 Tutsi were killed by Hutu. Many Hutu were also killed, and estimates of the total number of deaths are much higher. There was protracted violence subsequently, until stability was restored. Under the government which then emerged, Rwanda has made great progress economically and socially. It has become a valued member of the Commonwealth, and an important partner of the United Kingdom. However, its record in relation to human rights has been much criticised.

76. In 2017, in proceedings to which the Secretary of State was party, the Divisional Court found that Rwanda was “a state which, in very recent times, has instigated political killings, and has led British police to warn Rwandan nationals living in Britain of credible plans to kill them on the part of that state”: Government of Rwanda v Nteziryayo [2017] EWHC 1912 (Admin), para 370. At the United Nations Human Rights Council's Universal Periodic Review of Rwanda in Geneva in January 2021, the United Kingdom government criticised Rwanda for “extrajudicial killings, deaths in custody, enforced disappearances and torture”. Advice provided by officials to ministers later in 2021, during the process of selecting a partner country for the removal of asylum seekers, advised that Rwanda had a poor human rights record. Most human rights violations were said to be linked to criticism of the Rwandan government. There were also said to be constraints on media freedom and political activities. Refugees had not been generally ill-treated, but there had been exceptions when they had expressed criticism of the government. The most serious incident occurred in 2018, when the Rwandan police fired live ammunition at refugees protesting over cuts to food rations, killing at least 12 people. As the Lord Chief Justice noted in the present case (para 511), there remain “profound human rights concerns”. Since Rwanda has ratified many international human rights conventions, including UNCAT and the ICCPR, this raises serious questions as to its compliance with its international obligations.

(ii) The adequacy of Rwanda's asylum system

77. Rwanda maintains an open door policy for refugees fleeing conflicts in neighbouring countries, particularly the Democratic Republic of Congo and the Republic of Burundi. Refugees from these countries have been permitted to remain in Rwanda without going through any formal asylum determination process. They are accommodated in camps where UNHCR has an active role. Rwanda has also supported the UNHCR emergency transport mechanism for asylum seekers from Libya. Once in Rwanda, their claims are processed by UNHCR, and the claimants have been resettled by UNHCR in third countries. By contrast, the Rwandan authorities have handled only a small number of individual claims for asylum. The Rwandan government indicated that a total of 152 cases had been decided between 2019 and June 2022. The great majority of the claimants came from Rwanda's neighbours and other African countries. The Rwandan authorities have had little or no experience of considering asylum applications from most of the countries from which asylum claimants in the United Kingdom commonly come, such as Albania, Iran, Iraq, Pakistan, Syria and Vietnam.

78. UNHCR has expressed a number of concerns about Rwanda's asylum system. The Secretary of State observes that Rwanda's principal legislation concerning refugees, Law No 13/2014 relating to Refugees, has been described by UNHCR as fully compliant with international standards. However, the concerns expressed by UNHCR in these proceedings relate not to the text of the legislation but to how the system operates in practice.

79. First, there are concerns which relate to the asylum process itself. The initial stage in the process is the responsibility of the Directorate General of Immigration and Emigration in Rwanda (“the DGIE”), which is an entity within the National Intelligence and Security Service. Under Rwandan law, its role is to undertake the necessary preparation of asylum claims for determination by another body, the Refugee Status Determination Committee (“the RSDC”). The main function of the DGIE under the law is to conduct interviews with asylum claimants. However, although it is not authorised by law to reject asylum claims, it is said that the DGIE summarily rejected 8% of the asylum claims of which UNHCR was aware between 2020 and June 2022. UNHCR's evidence is that the true number of rejections by the DGIE is likely to be higher. Where this has occurred, no written reasons have been provided, and there is no right of appeal (since the law makes provision for appeals only against decisions taken by the RSDC). RSDC has the power to consider a claim which the DGIE has failed to refer to it, but UNHCR has no experience of this ever occurring.

80. The next stage in the process is the consideration of claims by the RSDC. That committee comprises senior representatives of the principal government departments and agencies, including the Prime Minister's Office and the National Intelligence and Security Service. They sit part-time on the RSDC and are non-specialist. Where the RSDC provides written reasons for its decisions, they are often perfunctory: the evidence includes RSDC decision letters, including several issued after the conclusion of the MEDP, which rejected asylum claims either without reasons, or with reasons which were merely formulaic. For example, a standard response from the RSDC in July 2022 was that “Refugee Status requested was not granted because you don't meet the eligibility criteria, and the reasons you provided during the interview were not pertinent”.

81. The next stage in the process is the possibility of an internal administrative appeal to the responsible minister. There have been comparatively few such appeals (there appear to have been five in 2021). In practice, the absence of reasoned decisions makes it difficult to address the basis on which the claim was rejected. No reasons are given for the minister's decision on the appeal.

82. The final stage in the process, as laid down in law, is a right of appeal to the High Court (with the possibility of a further appeal to appellate courts). The reliability of the safeguards in the Rwandan asylum system ultimately depends on this right of appeal: it is the only stage in the process at which claims can be considered by anyone other than government officials or ministers. Although a right of appeal has existed since 2018, there has never been such an appeal in practice. The system is therefore untested, and there is no evidence as to how the right of appeal would work in practice. There are, however, concerns about the willingness of the judiciary to find against the Rwandan government. In Government of Rwanda v. Nteziryayo (para 76 above), the Divisional Court considered the independence of the Rwandan judiciary in the context of an application for the extradition of a number of individuals to face charges arising out of the 1994 genocide. It concluded at para 374 that “the evidence points to some risk, depending on the evidence before them and the safeguards in play, that judges might yield to pressure from the Rwandan authorities”. It is apparent from the evidence that that view is essentially accepted by the FCDO, as the Lord Chief Justice noted (para 515).

83. The risk of a lack of independence in politically sensitive cases is not confined to the judiciary. In its comments on the draft CPIN report on asylum processing in Rwanda, mentioned in para 6 above, the FCDO commented, in relation to a statement that “independent legal support and advice is available”, that legal support was likely to be independent unless the matter became political. This issue is relevant because, in an appeal, the High Court would be asked to overturn the decision of a minister and, indirectly, the decision of a committee of senior representatives of the principal government bodies. The implication of the evidence is that the legal profession and the courts might not operate independently in such cases.

84. It appears that the process before the DGIE (which, as explained, conducts an interview of the asylum seeker), the RSDC (which considers the file prepared by the DGIE and may conduct a further interview), and the responsible minister (to whom an appeal lies against the decision of the RSDC) is marked by an absence of legal representation. The MEDP seeks to address this. However, during the negotiation of the MEDP, representatives of the Rwandan government indicated that the contemplated arrangements might not be straightforward to implement in practice. That seems to us to be a realistic view. The introduction of such a significant change of practice is liable to raise a number of issues, for example as to the role of the claimant's lawyer at each stage of the process, which may require time to resolve.

85. A second concern relates to the outcome of the asylum process, ie the decisions themselves. UNHCR's evidence shows 100% rejection rates at RSDC level during 2020-2022 for nationals of Afghanistan, Syria and Yemen, from which asylum seekers removed from the United Kingdom may well emanate. This is a surprisingly high rejection rate for claimants from known conflict zones. By comparison, Home Office statistics for the same period show that asylum claims in the United Kingdom were granted in 74% of cases from Afghanistan, 98% of cases from Syria, and 40% of cases from Yemen. UNHCR attributes the refusal of such claims by the Rwandan authorities to a view that persons from the Middle East and Afghanistan should claim asylum in their own region.

86. UNHCR has also produced evidence that a number of recent asylum seekers from a non-African country with close bilateral relations with Rwanda were denied access by the DGIE to the Rwandan asylum system. Three were peremptorily rejected by the DGIE, three were forcibly expelled to the Tanzanian border, two were instructed to leave Rwanda within days, and another two were threatened with refoulement to their country of origin. This evidence is not addressed in the responses of the Rwandan or United Kingdom governments. It raises a concern not simply that the DGIE has failed to comply with obligations imposed under the Refugee Convention, but that it has done so in the interests of the Rwandan government's foreign relations.

87. A third concern, related to the last point, is Rwanda's practice of refoulement. In addition to the cases of threatened refoulement mentioned in the previous paragraph, UNHCR reported six recent cases of expulsion of persons who claimed asylum on arrival at Kigali airport, some of which resulted in refoulement or would have done so if UNHCR had not intervened. Two Libyans were removed from the airport in February 2021 and sent to Egypt; a person from Yemen was removed from the airport in September 2021 and sent to Ethiopia, where UNHCR intervened to prevent his onward refoulement to Yemen; two Afghans were refouled to Afghanistan (via Dubai) on 24 March 2022, while the MEDP was being negotiated; and a Syrian was refouled to Syria (via Turkey) on 19 April 2022, after the MEDP had been concluded. There may be other cases: UNHCR does not maintain a presence at the airport, and only learns of such occurrences if they are contacted. This evidence is uncontested, although the Rwandan government disputes the description of these cases as constituting refoulement, as explained below.

88. The cases of airport refoulement do not establish that there would be a risk of similar refoulement under the MEDP, since asylum seekers arriving in Rwanda under the MEDP would have been pre-approved by the government of Rwanda and would arrive on planned flights. Nevertheless, these instances illustrate what Underhill LJ described at para 156 as “a culture of, at best, insufficient appreciation by DGIE officials of Rwanda's obligations under the Refugee Convention, and at worst a deliberate disregard for those obligations”. This evidence is also another of the matters which are said by UNHCR to demonstrate a prejudice against asylum seekers from the Middle East and Afghanistan.

89. The Divisional Court was provided with a table of instances of at least 100 allegations of refoulement and threatened refoulement cited in UNHCR's evidence and in notes of meetings with Home Office officials. We also refer below to refoulement in the context of the Israel/Rwanda agreement.

90. The review of the CPIN on asylum processing in Rwanda carried out on behalf of the IAGCI found that Home Office officials had failed to engage with Rwanda's return practices, and with documented instances of refoulement. It listed sources of information which were available in the public domain and which it considered that it was important for the Home Office to consider. It commented:

91. A fourth concern is the apparent inadequacy of the Rwandan government's understanding of the requirements of refugee law. For example, its response to UNHCR's evidence demonstrates a misunderstanding of the meaning of the concept of refoulement. It maintains, first, that asylum seekers must apply for asylum immediately upon arrival in Rwanda, and that claimants who apply for asylum only after failing to satisfy immigration requirements can properly be expelled. Secondly, it maintains that asylum seekers who use forged documents (as bona fide refugees not uncommonly do) do not meet immigration requirements, and their expulsion does not constitute refoulement. These contentions reveal an imperfect understanding of the requirements of the Refugee Convention. UNHCR also reported that the Rwandan officials who participated in training which it had organised had very limited or no understanding of how to assess refugee status. Although Home Office officials were told by the Rwandan government that their officials had received training from the International Organization for Migration, UNHCR produced written evidence from that organisation which expressly denied having provided any such training.

92. All the members of the Court of Appeal were impressed by the cogency of UNHCR's evidence. The Lord Chief Justice, for example, stated that he shared the concerns identified by UNHCR about whether those involved in the RSDC have sufficient training and expertise to deal appropriately with asylum claims, and also whether what are reported to be ingrained attitudes of scepticism towards claims made by Middle Eastern nationals will be influential. He added that there is certainly evidence of poor practice (para 502).

93. The defects in past and current practice which we have discussed are important factors in assessing future risk, particularly because the MEDP does not establish a new asylum process, but is based on the continuation of the existing system operated by the DGIE, the RSDC and the minister, subject to some modifications. Having regard also to the Rwandan government's misunderstanding of its obligations under the Refugee Convention, there is reason to apprehend that there is a real risk that the practices described above will not change, at least in the short term. The Secretary of State points out that resources are provided under the MEDP. However, the provision of resources does not mean that the problems which we have described can be resolved in the short term. The Secretary of State points to the monitoring arrangements under the MEDP as a safeguard. Such arrangements may be capable of detecting failures in the asylum system, and over time may result in the introduction of improvements, but that will come too late to eliminate the risk of refoulement currently faced by asylum seekers removed to Rwanda. Furthermore, the suppression of criticism of the government by lawyers and others is liable to discourage the reporting of problems, and so undermine the effectiveness of monitoring. It is also unclear whether the monitoring arrangements could provide a solution to problems emanating from the Rwandan government's interpretation of its obligations under the Refugee Convention, or from a lack of independence in the legal system in politically sensitive cases.

94. The Secretary of State advances a somewhat surprising argument to the effect that it does not matter if asylum claims are not processed correctly, because asylum seekers will not be subject to refoulement in any event. In relation to that argument, we note that if an asylum claim is wrongly rejected, and the asylum seeker does not have some other entitlement to remain in Rwanda, the government of Rwanda undertakes under paragraph 10.4 of the MOU (set out at para 9 above) to remove the person only “to a country in which they have a right to reside”. That country will normally be the country of which the asylum seeker is a national or citizen: that is to say, the country which he has fled, and in which (ex hypothesi) he faces persecution. It is said in response that Rwanda does not have agreements with other countries under which unsuccessful asylum seekers could be removed. However, it would not be necessary for Rwanda to have such agreements in place before being able to return individuals to countries in which they have a right to reside. The absence of such agreements has not prevented refoulement, direct or indirect, from occurring in practice, as we have explained.

(iii) The Israel/Rwanda arrangements

95. Israel entered into an agreement with Rwanda at the end of 2013, under which persons from Eritrea and Sudan who sought asylum in Israel were removed to Rwanda in order for their claims to be processed there. The agreement continued in operation until 2018. It was considered by the Supreme Court of Israel, sitting as the Court of Appeals for Administrative Affairs, in Sagitta v Minister of Interior Administrative Appeal 8101/15, heard on 9 October 2016. It is said in para 87 of the judgment (of which we were provided with an unofficial translation) that the agreement “includes an explicit undertaking of [Rwanda] according to which the deportees will enjoy human rights and freedoms and that the principle of non-refoulement shall be complied with. In addition, the agreement refers to the ability of the deportee to file a request for asylum”. It also appears from paras 7 and 92 that there were mechanisms for supervising and monitoring its implementation.

96. There is no dispute that persons who were relocated under the agreement suffered serious breaches of their rights under the Refugee Convention. UNHCR found that asylum seekers who arrived in Rwanda under the arrangement were routinely moved clandestinely to Uganda. It provided evidence relating to more than 100 nationals of Eritrea and Sudan who had arrived in Rwanda under the agreement during 2015 and 2016 and had then been taken to the Ugandan border or put on flights to Uganda. In three cases, refoulement to Eritrea (via Kenya) had only been prevented by UNHCR's intervention. The Rwandan government's response to this evidence lacked substance. It merely said that Rwanda had entered into other transfer arrangements for the international protection of refugees that differed from the Israel/Rwanda scheme.

97. FCDO officials mentioned the Israel/Rwanda agreement in a submission to ministers in April 2021. They explained that Rwanda had participated in a programme with Israel from 2013 to 2018 under which asylum seekers were given cash incentives to leave Israel voluntarily and the option to settle in Uganda and Rwanda. They also explained that it emerged that those who were transferred to Rwanda were not given the right to settle and were at risk of refoulement, and that the Israeli Supreme Court ruled the programme unlawful in April 2018.

98. Although ministers and officials were aware of the Israel/Rwanda agreement and the problems which arose under it, they do not appear to have investigated why it had failed, or attempted to obtain information about the terms of the agreement or the assurances which the Rwandan government had given. The subject was not mentioned in the CPIN on asylum processing in Rwanda. This omission was the subject of criticism in the review carried out on behalf of the IAGCI. It stated (citing Wilbourn and Kloos “A Commentary on the UK Home Office Country Policy and Information Note: Rwanda, asylum system, and the related Country Policy and Information Note: Rwanda, assessment”:

The review noted that concern about the treatment of asylum seekers under the Israel/Rwanda agreement, and other reported expulsions by the Rwandan government, had been expressed by the United Nations Committee Against Torture. It listed numerous publicly available sources of information.

99. In the decisions challenged in these proceedings, the Secretary of State asserted that the Israel/Rwanda agreement was irrelevant. The Secretary of State has not sought in these proceedings to adduce evidence contradicting or qualifying UNHCR's account, which is consistent with the information that ministers had received from FCDO officials and with the review carried out on behalf of the IAGCI. However, it was submitted on behalf of the Secretary of State that the Israel/Rwanda agreement was a different arrangement from the MEDP, entered into some years earlier, and could shed no light on whether the government of Rwanda could be relied on to comply with its assurances under the MEDP.

100. We do not agree that it is irrelevant. Although the terms of the agreement may well have been different from the MEDP, and it ceased to operate five years ago, it is nonetheless a recent agreement for the transfer of asylum seekers for processing in Rwanda, under which the Rwandan government undertook to comply with the principle of non-refoulement. Its apparent failure to fulfil that undertaking is relevant to an assessment of the risk of refoulement under the arrangements entered into with the government of the United Kingdom.

(iv) The overall assessment

101. The Secretary of State's submission, in effect, is that the evidence of current inadequacies in Rwanda's asylum system, and of its past history of refoulement and of failing to comply with assurances given to the government of another country, is not a reliable guide to how asylum seekers removed to Rwanda under the MEDP will be treated. A predictive evaluation is required, and the MEDP provides assurances that the necessary improvements to the system will be implemented. No-one has questioned the good faith of the Rwandan government in giving those assurances, and it has financial and reputational incentives to honour them. The monitoring arrangements under the MEDP will deter non-compliance and ensure that any failures come to light.

102. There is no dispute that the government of Rwanda entered into the MEDP in good faith. We accept that Rwanda has a strong reputational incentive to ensure that the MEDP is adhered to. The financial arrangement may provide a further incentive. In addition, the monitoring arrangements, and the degree of attention which would be likely to be paid to the operation of the MEDP by organisations such as UNHCR, provide further incentives and safeguards. Nevertheless, intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice. That is illustrated by the history of Rwanda's agreement with Israel: we have no reason to doubt that Rwanda gave its undertakings to Israel in good faith, and that the government of Israel believed that they would be fulfilled. The central issue in the present case is therefore not the good faith of the government of Rwanda at the political level, but its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement (including in the context of an analogous arrangement with Israel), and the scale of the changes in procedure, understanding and culture which are required.

103. In agreement with the Court of Appeal, we consider that the past and the present cannot be effectively ignored or sidelined as the Secretary of State suggests. Of course, since the application of the Soering test requires a consideration of risk, it therefore involves prediction. But risk is judged in the light of what has happened in the past, and in the light of the situation as it currently exists, as well as in the light of what may be promised for the future.

104. The matters which we have discussed are evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda's obligations under the Refugee Convention. The evidence also goes some way to support the suggestion of a dismissive attitude towards asylum seekers from the Middle East and Afghanistan. It is also apparent from the evidence that significant changes need to be made to Rwanda's asylum procedures, as they operate in practice, before there can be confidence that it will deal with asylum seekers sent to it by the United Kingdom in accordance with the principle of non-refoulement. The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring.

105. As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness. The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place. We accept the Secretary of State's submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.

(i) The Procedures Directive

111. The Procedures Directive establishes certain minimum standards on procedures for granting and withdrawing refugee status which are required to be met by EU Member States as part of a common EU policy on asylum. Articles 25 and 27 provide in relevant part:

The Procedures Directive came into came into effect on 2 January 2006 and Member States were required to implement the relevant provisions of the Directive by 1 December 2007. (Certain aspects of substantive EU asylum law are addressed in Council Directive 2004/83/EU of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”) which came into effect on 20 October 2004. Member States were required to implement its provisions before 10 October 2006.)

112. The Procedures Directive and the Qualification Directive were implemented in the United Kingdom in a piecemeal fashion. Existing legislation and rules were already compliant in many respects. Some necessary changes to the Immigration Rules were made for both Directives by the September 2006 Statement of Changes to the Immigration Rules (CM 6918) (September 2006). Further required changes were made by the Refugee or Person in need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) and the Asylum (Procedures) Regulations 2007 (SI 2007/3187).

However, an express requirement that there be a sufficient degree of connection between an asylum seeker and a third country on the basis of which it would be reasonable for that person to go to that country was introduced only on 24 November 2016 by the insertion into the Immigration Rules of paragraphs 345A-345D (Statement of Change HC 667).

(ii) European Union (Withdrawal) Act 2018

113. Section 4 of the 2018 Act (as amended by the European Union (Withdrawal Agreement) Act 2020) provides in relevant part:

114. It is common ground on this appeal that the relevant provisions of the Procedures Directive were retained EU law within section 4 of the 2018 Act. Section 4 (as amended by the European Union (Withdrawal Agreement) Act 2020 to provide for the implementation period) came into force at 11 pm on 31 December 2020, IP completion day, ie the end of the post-Brexit implementation period (“IP Completion Day”).

(iii) Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020

115. The long title of the 2020 Act is:

116. The Act has two substantive Parts. Part 1 is headed “Measures relating to ending free movement”. Part 2 is headed “Social security co-ordination”. This appeal concerns provisions in Part 1, in particular section 1 and Schedule 1.

117. Within Part 1, section 1 gives effect to Schedule 1. Section 1 provides:

Schedule 1 makes provision to –

1. (a) end rights to free movement of persons under retained EU law, including by repealing the main provisions of retained EU law relating to free movement, and

2. (b) end other EU-derived rights, and repeal other retained EU law, relating to immigration.”

Sections 2 and 3 are concerned with specific aspects of the ending of the right of free movement. Section 2 relates to the entitlement of Irish citizens to enter or remain without leave. Section 3 relates to legal routes from the EU and family reunion in the case of protection claimants.

118. Schedule 1 is headed:

Part 1 of Schedule 1 is headed “EU-derived domestic legislation” and revokes, omits or modifies specified provisions of primary and secondary domestic legislation. Part 2 of Schedule 1 is headed “Retained direct EU legislation” and it repeals Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (“the Workers Regulation”).

119. Part 3 of Schedule 1 is headed “EU-derived rights etc” and comprises paragraphs 5 and 6. Paragraph 5 is concerned with rights derived from the EU agreement with Switzerland on freedom of movement. Paragraph 6 provides:

120. The effect of paragraph 6(1)(a) is to disapply EU-derived rights so far as they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under “the Immigration Acts”. This is to be taken as a reference to the statutes listed in section 61(2) of the UK Borders Act 2007 (as adopted and amended, inter alia, by section 4(1) of the 2020 Act). (See Schedule 1 to the Interpretation Act 1978.) It was common ground before us that at the relevant time when the decisions relevant to this appeal were made, these statutes were:

121. Section 1 and Schedule 1 of the 2020 Act took effect on IP Completion Day, ie the end of the post-Brexit implementation period.

(iv) The Immigration Rules

122. The Immigration Rules are made under the 1971 Act, section 3(2) of which provides:

123. Paragraphs 345A to 345D of the Immigration Rules in an amended form were introduced by Statement of Changes HC 1043, dated 10 December 2020, to take effect on IP Completion Day. Paragraph 345C in this amended form, which is said on behalf of ASM to be incompatible with retained EU law, provides: