Many people will be curious as to when the government would attempt another removal flight now that the High Court has ruled that the Rwanda policy is legal, at least generally speaking. People living in Home Office housing who have received notices telling them that the government is thinking about moving them to Rwanda would undoubtedly be quite concerned about this topic (notices of intent).
On December 19, 2022, the High Court issued its decision, which you can read Colin’s opinion of here. On January 16, 2023, there will be another hearing when appeal requests will be discussed. Even if the High Court denies these requests, the claimants have until January 30, 2023, to submit an appeal request. It is likely that the Court of Appeal and Supreme Court will hear at least some of the challenges.
The “delivery” of the Rwanda contract was put on hold “while we’re going through the litigation,” Suella Braverman stated during yesterday’s House of Lords Justice and Home Affairs Committee hearing. While it is possible, it is doubtful that the government will try another removal flight before subsequent appeals are decided.
Aspects Of The European Court Of Human Rights And Temporary Remedies
The first Rwandan removal flight scheduled for June 2022 was delayed after the UK government was asked by an interim order issued by the European Court of Human Rights in Strasbourg in one of the key cases to delay the removal of that specific individual until three weeks after the conclusion of UK legal proceedings. A later plea from the administration to have the temporary order withdrawn was denied by the court.
This temporary measure is still in effect. The UK must accede to this proposal because it is a member of the Council of Europe. The court reasoned that the applicant shouldn’t be expelled from the UK before it had the chance to determine whether doing so would violate his rights under article 3 of the Convention. This is the justification for the interim measure. The court was worried because there was no assurance the applicant could be brought back from Rwanda later and that consideration could only be made after the conclusion of the UK proceedings.
Although there have been some criticisms about this choice, it is a completely common strategy. Since Article 3 is an unalienable right, the European Court has the final say in determining whether it has been violated for those who are entitled to it, which includes asylum seekers who are present on British soil. How long the UK procedures would last was unknown when the temporary measure was approved. No clause in the agreement between the governments of the UK and Rwanda requires Rwanda to return an asylum seeker who has been moved if requested to do so by the UK government because Rwanda is not a member of the Council of Europe.
The dangers of refoulement and the Rwandan asylum system have raised concerns with the UN High Commissioner for Refugees (UNCHR). More information on refugee rights, including non-refoulement, can be found here. The possibility that this person’s article 3 rights would be violated if he was taken away before the court had a chance to deliberate the matter for itself would have worried the court. The reasoning behind the European Court’s decision is unaffected by the High Court’s ruling. The weight that should be given to the UNHCR’s testimony may fluctuate depending on how the European Court decides to proceed.
The European Court could not be as deferential to the UK government’s position as is necessary to assume that the Rwandan government will uphold its commitments. In view of worries about repression and human rights violations committed by the Rwandan administration, it might give the conditions of the Memorandum of Understanding and Notes Verbales between the UK and Rwanda less significance. It can argue that, in accordance with their article 3 rights, asylum seekers cannot be forced to adhere to the demands of such a regime to prevent the possibility of mistreatment. It is important to keep in mind that, in contrast to the UK Supreme Court, the European Court will consider these factual and evidential concerns on their own, rather than basing its conclusion on whether the High Court committed legal errors.
Given all of this, the European Court is quite likely to intervene and halt any future flights by the government before the general challenge legal proceedings are over, providing the individuals can get attorneys.
What Should Those Who Have Intent Notices Do?
Complex factual and legal issues, such as the inadmissibility of asylum claims and the potential need to prepare arguments and supporting documentation to prove that returning an asylum seeker to Rwanda would violate their Convention rights, must be considered when deciding how to respond to a notice of intent (usually article 3, but potentially also article 8). Here is further information on how to react to a notice of intent. It will be necessary to hire a lawyer, but as everyone who works with asylum seekers is aware, finding qualified legal aid attorneys to accept cases can be very challenging.
Organizations and people that support asylum seekers must take care to observe the law regarding unregistered organisations offering immigration advice. Without breaching the law, the person can be assisted in asking for a delay in the date for replying to the notice of intent. Any difficulty in locating legal counsel should be mentioned in requests for extensions of the notice of intent deadline. Efforts should be made to acquire legal counsel.
It is important to keep track of your search for legal counsel and your requests for deadline extensions. If removal flights do resume, attorneys who take on the cases of those who have not obtained legal counsel and help will need to be able to demonstrate the challenges the client has had in obtaining such aid.
A “lengthy ‘limbo’ posture” caused by an unjustified delay in the inadmissibility process is prohibited, according to the Home Office’s inadmissibility policy. There is a common recommendation of six months. To determine if representations should be made requesting that their asylum claim be examined in the UK due to a delay in the inadmissibility procedure, a person will need counsel and support.
Need Help?
Here at Law Lane Solicitors, we have the experience and expertise to advise you on Immigration and Asylum. If you would like to speak to one of our specialists, then please call us on 0207 870 4870 today.
Written by:
Tahir Shahab Khan
Managing Director