The government’s decision to deport asylum seekers to Rwanda is being contested in a variety of general and specific judicial reviews. Let’s recall that the government launched a collaboration with Rwanda for economic and migration development in April 2022, calling it “an asylum partnership agreement.” This plan would move asylum seekers to Rwanda and process their claims there instead of having them make perilous irregular travels to the UK. The stated intention is that they would permanently reside in Rwanda if successful or if they were granted a visa on another ground.
The agreement is supported by a Memorandum of Understanding and Notes Verbales (disclosed in court but not yet made public), in which the UK and Rwanda make several commitments on, for example, living circumstances and safeguards for how the Rwandan government will handle asylum claims. The agreement expressly states that the commitments made are not enforceable in a court of law, enforceable under international law, or capable of giving rise to individual rights. The Home Office has also released national policy and information notes that cover the asylum system and human rights situation in Rwanda.
The first removal flight, planned to depart on June 14, 2022, was halted because of several individual cases in which the European Court of Human Rights granted Rule 39 interim measures. The administration now appears to acknowledge that there won’t be any further deportation flights until the legal issues are settled, despite some initial rhetoric to the contrary.
The Hearing in September
On September 5–9, 2022, Lord Justice Lewis and Mr. Justice Swift considered several general and specific challenges before the Divisional Court.
The primary concern was the security of those who had been relocated to Rwanda. This included determining whether the UK government had complied with its obligations of inquiry and investigation at common law and under article 3 of the European Court of Human Rights; if Rwanda’s asylum system has structural flaws that put people removed at risk of violating the Refugee Convention, including being sent back to Rwanda; and whether Rwanda needed to be formally designated as a safe third country.
Other broader issues included the question of whether returning to Rwanda would be punishable in violation of Article 31 of the Refugee Convention (and UK law giving effect to the same, section 2 of the Asylum and Immigration Appeals Act 1993). Whether the policy violates still-in-force EU law (Articles 25 and 27 of the Procedures Directive). Whether the Immigration Act of 1971’s section 3(2) required the eligibility for removal to Rwanda guidance to be presented before Parliament. And whether any elements of the policy structure are flawed, such as the absence of a written appropriateness policy.
The individual grounds targeted specific immigration determinations that asylum applications were inadmissible, for instance because the applicant failed to apply for asylum in a place that was safe before travelling to the UK. Additionally, they concentrate on whether Rwanda is a safe third-party nation and if removal would violate article 3 of the European Court of Human Rights are “obviously unfounded” human rights allegations.
After receiving authorization to intervene, the UN High Commissioner for Refugees submitted thorough supporting documentation and submissions that concentrated on Rwanda’s methodology for determining refugee status. The clear consensus at this hearing was that no removals under the programme should go to Rwanda due to flaws in that country’s system, which, in particular, meant there were dangers of further refoulement.
The Hearings in October
Asylum Aid’s challenge will be considered by the Divisional Court on October 13 and 14, 2022. The justice of the decision-making procedure that results in the transfer of a person to Rwanda is the main concern of this difficulty.
A third hearing (SAA CO/2094/2022), which focuses on the policy’s compliance with data protection laws, is also scheduled.
The court had previously mentioned that the same Divisional Court will consider every case during the case management hearings.
The legality of sending victims of human trafficking and modern slavery to Rwanda under the agreement is the subject of another set of lawsuits, which are now on hold while the cases being heard in September and October are heard.
What Is Expected to Occur Following the Hearings in The High Court?
The court said at the conclusion of the September hearing that it will publish a single ruling addressing all problems and cases following the hearings in October.
It appears likely that there will be additional appeals regardless of what the High Court rules. The European Court of Human Rights may ultimately hear cases based on the European Convention on Human Rights.
Individual immigration judgments may be determined to be unlawful, in which case the Home Office would have to re-evaluate those decisions regardless of the outcome of the overall challenges. Any new decisions would presumably need to be contested in additional court reviews and, if just specific immigration decisions were in dispute before the Upper Tribunal.
There would then be statutory appeals and possibly, eventually, a national advice case on the safety of repatriation to Rwanda if the Home Office determines that specific human rights rulings cannot be certified as plainly baseless.
Therefore, it appears likely to take quite some time before this litigation achieves a final determination and the government (if it succeeds) can begin deportation to Rwanda, regardless of what occurs in the High Court sessions.
Tahir Shahab Khan