Asylum seekers arriving by boat have started to receive notices informing them of the UK government’s intention to remove them to Rwanda pursuant to the “Migration and Economic Development Partnership” announced last month. We learned yesterday that the Home Office wishes to begin removing people on 14 June. This article offers some practical suggestions on how representatives may wish to respond to notices of intent, based on my own experience and research so far.

These notices are not decisions or removal directions. If the person served with the notice is in detention, they are told that they must respond within seven days. If they are not in detention, the deadline is 14 days. The shorter timeframe for people in detention is presumably because of the supposition that legal advice is available through the Detained Duty Advice Scheme. The problems with this are well-known.

The notice should be accompanied by an information leaflet (download a copy or see below).

The leaflet should state an email address to which any representations or other correspondence should be sent. If the person served with a notice is unable to find a legal representative before the expiry of the deadline for responding to the notice, they should email requesting an extension. If the person is unable to write an email themselves, a non-lawyer could – without breaching the law restricting who can provide immigration advice and representation – write the email for them (being careful to only pass on their request). Officials seem to be agreeing to extensions of around seven days without difficulty. In considering requests, they should consider issues of fairness and access to justice.

The Home Office would need to take a number of steps before it can actually lawfully remove a person to Rwanda. As a minimum, it would need to:

1. Carry out an adequate investigation into the person’s basis of claim and individual circumstances;
2. Decide that the asylum claim is inadmissible;
3. Certify the asylum claim under paragraph 17, Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 on the basis that Rwanda is a safe third country;
4. Certify any human rights claim – vis a vis removal to Rwanda – as clearly unfounded so that any right of appeal can only be exercised out-of-country.

The information leaflet states that a minimum of five working days’ notice of removal must be given. The department’s policy, Inadmissibility: safe third country cases, states that any judicial review proceedings challenging asylum inadmissibility and “clearly unfounded” decisions are “likely to have suspensive effect, which means that the individual must not be removed from the UK until the proceedings have concluded”. If the removal is to be by charter flight, it may be necessary to apply for a court injunction to stop the removal.

Once any request for an extension for responding to the notice has been dealt with, responding to the notice will likely involve the following steps:

1. Attend on the client to take detailed instructions. This will include: asking about the basis of their underlying asylum claim; why the client did not apply for asylum or secure protection in any safe countries they passed through; whether they may have been trafficked or exploited in their own country or en route to the UK; whether they have a history of trauma, mental ill health or other vulnerability; whether they have family or other connections to the UK. If there are issues of vulnerability and the client has not had a Rule 34/35 assessment with an immigration removal centre doctor, they should be assisted to access this.
2. Request relevant documentation: clients should have a copy of their screening interview, notice of intent and documents explaining the reasons for detention, such as an IS91R. If they do not have these documents, request them via the email address in the information leaflet.
3. Consider whether any other medical or other expert evidence is required and ascertain likely timescales for this.
4. Carry out any country information research, both in relation to the country of origin (in the context of the underlying asylum claim) and Rwanda (in terms of conditions and its asylum system). For example, the department’s own country policy and information notes suggest – amongst other things – that there will likely be difficulties in accessing interpreters, legal representation and independent tribunals/courts.
5. Submit a request to the department for immigration bail. This may elicit a response setting out the department’s position on removal and the likely timescale for this.
6. If the client does disclose a history of human trafficking or exploitation, consider whether to ask the Home Office to refer them into the National Referral Mechanism for victims of trafficking.

In terms of responding substantively to the notice:

1. Are you submitting representations or are there matters that you wish to challenge in judicial review proceedings? The process for selecting people for removal is arguably unlawful because, among other things, there is no published policy setting out the selection criteria. If the client is in detention, there will likely be arguments that detention is unlawful. If there are potential grounds for judicial review, the reply will need to be in the form of a pre-action letter.
2. Set out the limitations of the representations you are able to make in the timescales allowed. Are further investigations and evidence required before a decision can be made, such as a detailed statement/interview, medical and other expert evidence?
3. Raise any human rights claim – e.g. that removal to Rwanda would breach the client’s European Convention rights because of their characteristics, including vulnerability; living conditions in Rwanda, including any relevant healthcare needs; deficiencies in Rwanda’s asylum system; risks of onward refoulement, the client being subjected to exploitation and ill-treatment by people smugglers.
4. Address the asylum inadmissibility criteria. Explanations for a client not having claimed asylum in any safe country they passed through will need to be provided. If it has not been possible to obtain all necessary instructions on this, this should be explained.
5. Raise any potential judicial ground that the Rwanda policy itself and the process leading to the selection of people for removal to Rwanda is unlawful.
6. Although the notice of intent is not a decision, set out why any decision to decide that the client’s asylum claim is inadmissible and seek to remove them to Rwanda is unlawful.
7. Any unlawful detention arguments should be raised. If arguing that the selection process is unlawful, this arguably bears on and is relevant to the decision to detain and so will be a public law error. Are the department’s stated reasons accurate and reasonable? Are there any Adults at Risk arguments? Address the general detention criteria.
8. Request any relevant documents, such as communications with the Rwandan authorities and around the selection criteria.

Lastly, a call to please share information and experiences with other lawyers working on these cases. ILPA has been convening meetings of member lawyers and NGOs involved in this work and there are other forums such as the Refugee Legal Group. Contrary to what the government says, this policy is not a fight between the government and lawyers. It represents an existential threat to the asylum system and the people who need it. Our clients need us to work together to help them defeat this policy.

This article has been updated to mention human trafficking.