Thread by @Barristerblog

Judgment being given in #Rwanda appeal now.

Singh LJ points out that because of urgency there is no approved transcript of the Swift J's judgment.

Merits of the underlying plicy are not for the courts, says Singh. Only job of the courts is to decide if the scheme is lawful.

We can't decide today if the scheme is lawful. There will be a full hearing in July. We are an appellate court. We have to decide if the judge's decision was one which was not reasonably open to him.

The individual removal decisions were challenged in High Court on 7 Grounds:

1. SoS's determination that Rwanda is a safe country is unreasonable (that's a paraphrase, as is most of this thread)
2. Malaria prevention
3. Art 3 of ECHR

4. Ultra Vires by unlawful criminalisation of refugees
5. Ultra vires 1992 Act, because Rwanda won't discharge rights under Refugee Convention
6. Failure of Sos to issue guidance
7. Failure of SoS to consider representations.

Application is to prevent removal pending the final hearing of the claim.

Judge considered was serious isue on 1,2 3 & 5. Considered where the "balance of convenience" fell. Judge felt that it did not favour a general or individual injunctions.

May have lost a bit of the trhead in the wifi there.

WIfi back again, Singh LJ now discussing the original judgment of Swift J. Points out that there was a seirous issue to be tried.

Questions:
1 Was there a serious issue to be tried (Yes)
2 Where did balance of convenience lie - ie which course of action gave rise to the least prejudice if it turned out to be wrong.

Judge approached ballance of convenience on basis that interim period will be short. BoC didn't favour general injunction. Satisfied implementation of scheme depeds on case by case decisions.

J thought removal would be arduous and would be distressing & cause prejudice.

Judge made express refrenence to UNHCR represnetations, setting out systematic concertns about refugee assessments in Rwanda.

Judge did not think there was a risk of refoulement or ill treatment if deported. And thjere was a public interest in the SoS pursuing her policies until foiund to be unlawful.

Appellants advanced 3 main grounds of appeal (he doesn't repeat them verbatim).
1. Apps submit that J's errors as to strnegth of Ground 1 (and 4) are fundamental, because strength of underlying claim is a key factor in deciding where BoC lies.

Apps submit that Judge ignored 3 recent cases referred to by UNHCR, and that evidence indicates failures in Rwanda legal system, and risk of refoulement, therefore decision that Rwanda is safe is irrational.

Apps submit that SoS has fundamentally misunderstood the risks of refoulement etc. SoS has misread the position of the UNHCR.

Apps made almost identical submission to Swift J., observes Singh LJ.

Apps submit if interim relief refused, 4th and 5th Claimants will suffer serious prejudice, beyond being "arduous, onerous or distressing".

Apps submit the whole process of removal amounts to seiorus interference with basic dignity. Risaks of onward refoulement are made out by UNHCR and not addressed. Removal would also prejudice appellants in future claim.

Singh LJ outlines the App's 7 submissions as to why the judge got the "balance of convenience" wrong. But too fast for me to tweet them!

Evidence on irremediable harm applies to every decision and show a real risk of Art 3 harm. And type of general interim relief sought are common in "charter flight" cases.

Although appeal is just for individaual claimaints, Court says that it would be unrealisitc that if injunction is granted any other flights would take place before final hearing. Dunlop QC for SoS agrees.

Singh LJ refers to UNHCR submissions. Case by case assessment in Rwnada is "nascent." SoS omitted UNCHR's concerns from publihed documents.

UNCHR warns in written evidence that there is a real risk of refoulement if refugees removed Rwanda.

UNCHR is an "intervenor" in the case, by the way. UNCHR concerned about preentry refoulement, constructive refoulement and de jure refoulement (pronounced "refoolemon").

Singh LJ now moving to SoS's response. Strong public interst in deterring unnecessary and unsafe travel to UK. SoS sought a partnership with Rwanda. Many of App's arguments are just "quibbles with the evidence."

Dunlop QC for SoS argues Apeal Court shouldn't substitute its own judgment. In any event, later material from SoS can take into account later evidence from UNHCR.

Dunlop argues that judge applied the right principles, and Apps just trying to reargue the case. UNHCR evidence was not "overwhelming," and the very purpose of the MoU was to have the grounds determined in Rwanda.

Dunlop says that the judge had regard to impact of removal on the interests of appellants. It was for the SoS to decide if the extra costs - if injunction wrongly refused - were to be risked.

Dunlop argues that judge was not obliged to make a generic decision, and the UNHCR submissions adds little.

S.37 Senior Courts Act 1981 - power to grant injunctions.
Test is that in American Cyanamid:
Is there a serious q to be tried? if so
Will damages be adequate remedy?

If not, where is balance of convenience?

Courts will notrmally need to consider wider public interest in JR cases.

In public law cases, Court generally reluctant to grant interim relief in absence of a strong prima facie case. Strength of underlying challenge is a significant factor.

Balance of Conveneince is really "balancing the relative risk of injustice." A court can't deal with final merits early on but maybe necessary to grant remedy early on.

Lord Hoffmann quoted "purpose of such an injunction is to imrpve the chanves tothe court doing justice after a trial ... Court has to predict whether granting or witholding an injunction is more or less liekly to cause iremediabl prejudice if injunction is or is not granted. ."

Now moving on to the nature of an Appeal - it is a review, not a rehearing. Appeal will b alowed if decision of loer court was (a) wrong or (b) unjust because of proecedural errors .Submission here is that it was wrong.

Question is not whether appeal court would have granted an injunction, but whether the judge was wrong to have granted [or i suppose to refiuse] an injunction. Not function of appellate court to substititue its view, unless Judge has misdriected himself on law.

Court citing other cases making similar points, that appellate cour should not substitute its own judgment unless lower court's dcision was irrational or plainly wrong. Deference to lower court stressed.

We consider judge produced a detailed and impressive judgment, all the more impressive because of time contraints. Judge did not err in principle or fail to take all relevant considerations into account. We consider conc;lusions reaonsably open to him. We don't accept Ground 1.

We do not disagree with the judge's overall assessment.

Secretary of State has won this appeal.

Not function of this court to substitute its view for those of the judge. Judge identified there was a serious issue to be tried, and the judge conducted the balancing exercise correctly.

INterim period wil be short - Judge was correct to take that view. Given that interim period will be short, J entitled to take view that it's unlikely that individuals would be sent elsewhere by Rwanda.

MoU may not be formally legally enforceable, but SoS entitled to assume it will be complied with.

Unnecessary to consider Ground 3, but we agree that applications for interim relief should be considered on individual not a generic basis.

As this case show, SoS has been prepared to reconsider individual removal decisions.

Judge toook everything into account, and reached a decision he was entitled to reach on the evidence. Appeal dismoissed.

Hussain QC asks for permission to appeal to Supreme Court.

Dunlop QC opposes application for leave to appeal.

Permission to appeal to Supreme Court is refused.

That's it from the Court of Appeal.