Now that the High Court has decided that the Rwanda policy is lawful, at least at a general level, many people will be wondering when the government will attempt another removal flight. This question will be no doubt be causing a lot of worry to people in Home Office accommodation who have received notices informing them that the government is considering relocating them to Rwanda (notices of intent).
The High Court gave its judgment on 19 December 2022 and you can read Colin’s analysis of the judgment here. A further hearing has been scheduled for the 16 January 2023 at which applications to appeal will be considered. Even if the High Court refuses these applications, the claimants have until 30 January 2023 to apply to the Court of Appeal. The likelihood is that at least some of the challenges will be heard by the Court of Appeal and Supreme Court.
Suella Braverman told the House of Lords Justice and Home Affairs Committee hearing yesterday that the “delivery” of the Rwanda deal was on hold “while we’re going through the litigation”. My own view is that while it is possible that the government will attempt a further removal flight before onward appeals are resolved, this is unlikely.
The European Court of Human Rights and interim measures
The first Rwanda removal flight in June 2022 did not take off after an interim measure granted by the European Court of Human Rights in Strasbourg in one of the lead cases requested the UK government not to remove that particular person until 3 weeks after the UK legal proceedings had come to an end. The court rejected a subsequent request from the government for the interim measure to be lifted.
This interim measure remains in place. As a member state of the Council of Europe, the UK is bound to comply with such a request. The rationale for the interim measure is that the court considered that the applicant should not be removed from the UK before the court has the opportunity to consider whether his removal would breach his article 3 Convention rights. That consideration can only take place after the conclusion of the UK proceedings and the court was concerned that there was no guarantee that the applicant could be brought back from Rwanda at a later stage.
There have been complaints in some quarters about this decision, but it is an entirely conventional approach. Article 3 is an absolute right and the European Court has ultimate responsibility for deciding whether it has been breached for people who benefit from the right, which includes asylum seekers present on UK territory. It was unclear at the time the interim measure was granted how long the UK proceedings would take to resolve. Rwanda is not a member of the Council of Europe and there is no provision in the agreement between the UK and Rwanda governments that requires Rwanda to return a relocated asylum seeker if requested to do so by the UK government.
The United Nations High Commissioner for Refugees (UNCHR) expressed concerns about the Rwandan asylum system and risks of refoulement. You can read more about the rights refugees have, including non-refoulement here. The court will have been concerned about the risk of this individual’s article 3 rights being breached if he was removed before it was able to consider the issue for itself. The High Court’s decision does not alter the underlying rationale for the European Court’s decision. The European Court may take a different approach to the weight to be given to the evidence of the UNHCR.
The European Court may not be so deferential to the view of UK government that the Rwanda government can be expected to keep to its promises. It may give less weight to the terms of the UK-Rwanda Memorandum of Understanding and Notes Verbales in light of concerns around repression and human rights abuses perpetrated by the Rwanda regime. It may consider that asylum seekers cannot be required to comply with the requirements of such a regime in order to avoid the risk of ill-treatment, consistent with their article 3 rights. It is worth remembering that unlike the UK Supreme Court, the European Court will approach these factual and evidential issues for itself and not, as the Supreme Court will, on the basis of whether the High Court made legal errors in its decision.
All this being so, if the government attempts a further flight before the general challenge legal proceedings come to an end, assuming the individuals can find lawyers, the European Court is very likely to step in and put a stop to it.
What should people with notices of intent do?
How do you respond to a notice of intent involves complex factual and legal issues, including asylum inadmissibility and, potentially, the preparation of representations and evidence in support of a claim that removal to Rwanda would breach the individual asylum seeker’s Convention rights (usually article 3, but potentially also article 8)? A lawyer will be required but as those who work with asylum seekers will well know, it is very difficult to find good legal aid lawyers to take cases.
Organisations and individuals supporting asylum seekers will need to be careful not to break the law on unregulated organisations providing immigration advice. However, the individual can be helped to make a request for an extension of time to the deadline for responding to the notice of intent without breaking this law. Attempts should be made to find legal representatives and any difficulties in this regard should be referred to in requests for extensions to the notice of intent deadline.
Attempts to find legal representatives and requests for extensions to the notice of intent deadline should be documented. If and when removal flights do re-start, where individuals have not received legal advice and assistance lawyers who then take on their cases will need to be able to provide evidence of the difficulties the individual has had in securing this legal advice and assistance.
The Home Office’s inadmissibility policy states that there must not be unreasonable delay in the inadmissibility such as to create a “lengthy ‘limbo’ position”. A general guideline of six months is set out. An individual will require advice and assistance on whether representations should be made requesting that their asylum claim be considered in the UK because of delay in the inadmissibility process.