EHRC response following High Court judgment on AAA and others -v- Secretary of State for the Home Department

On 19 December 2022, the High Court judged that the government’s migration and economic development partnership policy is compatible with the UK’s obligations under international and domestic law.

We remind all public bodies discharging immigration functions to comply with the Public Sector Equality Duty set out in the Equality Act 2010, as well as with the Human Rights Act 1998.

It remains vital that the government takes action to reduce the serious threat to human life posed by trafficking and small boats crossing the Channel. We support the government’s commitment to reducing these risks and to establishing safe migration routes.

However, some genuine asylum seekers cannot access the safe routes currently available. Accordingly, we urge the government to improve the availability of such routes, including through providing for the ability to seek asylum prior to entry, not least to reduce the demand for people smuggling. 

Following careful consideration of the High Court judgment we have identified four specific issues that we will press the Home Office to address:

• The UK and Rwanda have signed a Memorandum of Understanding to govern relevant operational arrangements. We urge both parties to ensure that procedures and practices remain compliant with international human rights law and we will liaise with our counterparts overseas on this if we deem it necessary.

• The UK government has provided limited detail on the eligibility criteria for the scheme. We welcome the exemption for unaccompanied minors but we urge the government not to remove young people where there are doubts as to whether or not they have reached the age of 18.

• The eligibility criteria require decision makers to ‘take into account’ the position of members of other vulnerable groups, including pregnant and disabled people, people with mental health conditions, and LGBT people. We urge the government to provide more specific protections to ensure the safety and security of these groups, bearing in mind the particular risks that they face.

• The UK government recognises that ‘there are concerns over the treatment’ of LGBT individuals in Rwanda and there is ‘evidence of ill-treatment of those who have undergone gender reassignment’. We ask the government either to exempt this group from transfer or to clarify the circumstances in which they would deem a transfer feasible.

The Home Office must consider individual facts and circumstances when determining immigration outcomes. Decision making must be compliant with equality and human rights law, and include a careful assessment of the circumstances of the person concerned, including any specific vulnerabilities such as their protected characteristics.

On these and other matters relating to equality and human rights, we will continue to provide advice to the Home Office and UK Government on their legal obligations, and on how risks can be mitigated, in line with our statutory remit and responsibilities.