Law for Change is supporting Asylum Aid's appeal to challenge the High Court ruling on Home Office Rwanda scheme.

Posted on 24th April 2023

Legal protection charity Asylum Aid has a Court of Appeal hearing from Monday 24 April to Thursday 27 April to challenge the High Court ruling that the Home Office fast-track Rwanda removals process is lawful. Asylum Aid is represented by Leigh Day’s Tessa Gregory, Carolin Ott and Stephanie Hill.

In December judges ruled that a short-cut process to decide whether to remove someone under the Migration and Economic Development Partnership (MEDP) with Rwanda is fair. They said the process allows enough time to gather necessary evidence and make adequate representations and that asylum seekers don’t need access to lawyers for a fair chance to respond in the short timescale.

Asylum Aid argues that the seven days to make representations on why they should not be sent to Rwanda, and five working days to get to court before they could be put on a plane are too short and unfair.

It says Home Secretary Suella Braverman’s case wrongly succeeded because the court applied the principle of the right to make representations on fairness too narrowly. Judges said individuals only needed to be able to supply facts about themselves, which didn’t require legal representation.

Asylum Aid will make the following arguments in its appeal:

• If a potential decision could be affected by the production of relevant information, then an individual must be given an opportunity to provide it, and if there are considerations which will defeat an asylum application an individual must be informed about them.

• The High Court was wrong to conclude that fairness does not require access to lawyers to make representations. It is perverse to conclude that lay individuals who have just arrived in the UK and usually do not speak English, let alone understand the relevant law (contained in Immigration Rules, Policies, Statutes, and international treaties), would be capable of knowing or discovering what facts were relevant to their safety in a country, Rwanda, of which they have no personal experience. It would be impossible for them to make even limited effective representations in seven days.

• Even if the duty to allow an opportunity to make representations was as limited as the High Court decided, seven days is still not enough time to make them.

• Individuals should have access to the Home Office’s provisional conclusions relevant to removal to Rwanda before they make their representations about their case. This means individuals should have access to the Home Office’s assessment and materials relating to Rwanda’s general safety so that they can assess how this is relevant to their own safety. It also means that individuals should have access to the Home Office’s provisional conclusions that an individual’s claim is inadmissible.

• The five working days given after a decision to remove to Rwanda is made to challenge the decision are not enough to get a lawyer and make the case in court, especially if individuals have not had a fair chance to make representations on all relevant issues.

• The Court’s interpretation of Immigration Rules is flawed. The only internally consistent interpretation of the Immigration Rules means that there must be an opportunity to make representations on the Home Secretary’s general conclusions on whether Rwanda complies with the obligations under the Refugee Convention.

Asylum Aid is represented by a human rights team including Carolin Ott and Stephanie Hill, led by Tessa Gregory, at law firm Leigh Day. Counsel are Charlotte Kilroy KC of Blackstone Chambers and Michelle Knorr and Sarah Dobbie of Doughty Street Chambers. Asylum Aid’s case is supported by Law for Change.

The UN Special Rapporteur on Trafficking and the organisation Freedom from Torture have been granted permission to intervene in Asylum Aid’s case with written submissions.

Asylum Aid’s appeal will be heard and determined alongside appeals from individual asylum seekers who were due to be removed to Rwanda in June last year and in whose cases the UNHCR has been given permission to intervene.

Kerry Smith, chief executive of Asylum Aid, said:

”We have brought this appeal due to the utmost importance of the issue before the court: the fundamental right to a fair and reasonable decision-making process. This is one of the most basic principles of the Rule of Law. The High Court’s decision – that people do not require legal advice, that they should be able to understand the process and make representations within seven days, and that they cannot challenge the Government’s position that Rwanda is safe – denies all those subjected to this procedure a fair hearing.

“The lack of safe routes for those fleeing persecution and violence means that, together with the Illegal Migration Bill, the shortcut Rwanda processing policy will ensure that survivors of torture, trafficking and other forms of human cruelty are blocked from the systems that enable them to secure safety. Instead of having a pathway to a secure future, survivors will be kept in limbo – in detention or quasi detention conditions – for years. A tiny minority may face removal to Rwanda, a country whose record on human rights and the Rule of Law has been the subject of consistent international criticism. This will increase the risk of exploitation and abuse in the UK, and if successful in Rwanda as well.

“This Government knows that the Rwanda policy and the Illegal Migration Bill will do little to deter people risking their lives to seek safety. Earlier this month the Prime Minister was forced to admit that he would not be able to “stop the boats” by the next election because of the complexity of the problem – and that there is no simple solution. These inhumane policies will not help address this problem – they will just lead to suffering. The Government knows this – and that they will then be detaining people across the UK for years to come, perhaps indefinitely. There is a wealth of clinical evidence on the significant harms – both physical and mental – caused by immigration detention, and by living in immigration ‘limbo’, in some cases pushing people into states of chronic ill health. The Government fully understands the outcome of the punitive and inoperable policies contained in the Bill: widespread trauma and suffering.” `

Stephen Kinsella, founder of Law for Change said:

“Law for Change is proud to support Asylum Aid’s appeal.

“Guaranteeing genuine judicial review of the Home Secretary decision to send individuals who are seeking asylum in the UK to Rwanda is clearly of profound public importance.

“Our mission is to improve access to justice for under-represented communities and that includes protecting all, whatever their status or origins, who are being denied effective legal representation and access to the courts.”

Leigh Day partner Tessa Gregory said: 

“Asylum Aid remains concerned that the curtailed process adopted to forcibly remove asylum seekers from the UK to Rwanda means individuals will be denied effective access to legal advice and the courts. 

“Until the second day of its two-day High Court hearing, even the Home Secretary agreed that fairness requires individuals being considered for removal to Rwanda to have an effective opportunity to make representations about all aspects of the decision. She argued that the opportunity was afforded in practice. After the court informed her legal team that accepting that meant that Asylum Aid’s arguments would succeed, she reversed her position and the court rejected Asylum Aid’s case. 

“The Home Secretary succeeded because the Court said the law only requires individuals to be given an opportunity to supply facts about themselves, which they could do within seven days without a lawyer. Asylum Aid will point to a range of cases to argue that the court was wrong to conclude this.”