All asylum seekers who launched legal challenges against Rwanda scheme released from detention
High Court judges have several individual legal challenges against the Home Office, by people arguing that their removal from the UK would be unlawful, until the assessment process is complete.
They have received “reasonable grounds” decisions from the National Referral Mechanism, which is the government’s own official framework for identifying and supporting victims of modern slavery and human trafficking.
But the High Court heard that the asylum seekers were not flagged to the scheme until after they were detained by the Home Office and served with legal notices saying they would be sent to Rwanda.
Giving legal directions ahead of a full judicial review of the policy, which will start on 5 September, Lord Justice Lewis said a “number of claimants” had been referred to the NRM.
He said a decision had been taken that there were reasonable grounds that they had been subjected to trafficking, and they would not be removed to Rwanda before a final decision is taken.
“If they are found to be victims of trafficking, they might be granted discretionary leave by the home secretary,” the judge told a hearing on Wednesday.
Lord Justice Lewis said the legal challenges by those claimants would be stayed until a final decision is made by the NRM.
He added that the High Court would also delay its consideration of a series of unlawful detention claims by people selected for removal to Rwanda, as “all those detained have been released on bail” and the only matter outstanding is claims for damages against the Home Office.
The full judicial review, brought by asylum seekers from countries including Syria and Iraq, two charities and a union representing Border Force staff, is due to be heard later this year.
The High Court has set a five-day hearing starting on 5 September, but lawyers for the claimants had argued for a later date and said they did not have sufficient time to prepare their cases.
They have been sent thousands of documents by the Home Office, which showed that the UK High Commissioner to Rwanda and Foreign Office repeatedly advised against pursuing an asylum deal with Rwanda.
New decisions have also been in some of the claimants’ cases in recent weeks, but lawyers representing Priti Patel had argued that the full hearing should go ahead as soon as possible.
“There is a strong public interest in listing this case expeditiously,” said written documents lodged by the Home Office team.
“An adjournment beyond 5 September would be contrary to the strong public interest in permitting the government to put into effect a policy intended to deter illegal, unnecessary and dangerous journeys.”
Lord Justice Lewis said the High Court accepted there was a “strong public interest in hearing these claims as soon as possible” and that the claimants would have time to present their cases fairly by September.
Documents presented to Tuesday’s hearing said that Rwanda was “initially excluded from the shortlist of potential partner countries for the proposed immigration policy on human rights grounds”.
They show that on 10 February 2021, the UK High Commissioner to Rwanda indicated that the country “should not be pursued as an option for the planned migration policy”.
The reasons given included that it “has been accused of recruiting refugees to conduct armed operations in neighbouring countries”, has a “poor human rights record regardless of the conventions it has signed up to” and has been criticised by the UK for extrajudicial killings, deaths in custody, enforced disappearances, torture and crackdowns on anyone critical of the regime.
The claimant’s submissions to the High Court showed numerous memos flying around the Foriegn Office over the agreement, with many raising concerns about Rwanda’s human rights record and “concerns over violations for political opposition or those who oppose president Paul Kagame”.
Further advice against any agreement with Rwanda was issued by officials in the Foreign Office, including a 20 May 2021 memo saying it “continue[d] to advise No10 against engagement” and suggesting that it does not have a “functioning asylum system in compliance with Refugee Convention obligations”.
Six days later, an internal email within the Foreign Office indicated that the then-foreign secretary Dominic Raab had said the test should be “whether, with financial support, the host country could get up to European Convention of Human Rights standards”.
Documents indicated that Home Office officials visited Rwanda prior to the creation of the memorandum understanding, but a March memo stated that the country “depends heavily” on the UN Refugee Agency (UNHCR) and aid agencies for delivering their domestic asylum system and that there was “no independent verification” for Kigali’s claims over its capabilities.
An internal government memo from 12 April, a day before the memorandum of understanding was signed, said the agreement was “unenforceable, consisting in part of upfront payments, meaning fraud risk is very high”.
It added: “There is limited evidence about whether these proposals will be a sufficient deterrent for those seeking to enter the UK illegally. If [legally] challenged, there is a risk we will not be able to sufficiently demonstrate ‘objectivity’, based on rigorous analysis of the evidence.”
Official government guidance published in May found Rwanda to be a safe country, but the claimants revealed that the Rwandan government itself had been sent a draft to review and asked for edits.