Briefing: Safety of Rwanda Act – what happens now?

I have set out below what the legal process is for sending a person to Rwanda following the Safety of Rwanda (Asylum and Immigration) Act 2024, which received Royal Assent on 25 April and came into force the same day. I have looked only at the law as it currently stands, this excludes much of the Illegal Migration Act that is still not in force, although new guidance does refer to the possibility of some of this being brought in.

Rwanda has ratified the treaty and passed new laws on asylum appeals but it still does not appear that they are ready to receive people. Presumably in acknowledgement of that, the Prime Minister has said that he expects flights to take off in 10 to 12 weeks.

Who is at risk?

Section 10 of the Safety of Rwanda Act explains that the Act covers any decision to send someone to Rwanda from the date the treaty came into force, which was 25 April 2024. This means the Act will apply to people who are already in the UK.

The guidance “Inadmissibility in safe third country cases” (version 8 published 29 April 2024, see here for detailed changes to the previous version) states on pages 8 and 9 that a person could face removal to Rwanda under this policy where:

• they are eligible for inadmissibility action under the guidance, and
• have claimed asylum on or after 1 January 2022 (note, this is a change in wording, the position previously was that the “journey” was made on or after that date), and
• their journey could be described as having been dangerous, and
• they do not have families with children under the age of 18

The guidance also says that those who arrived in the UK after 9 May 2022 will be prioritised and that anyone who is being considered for relocation to Rwanda will be sent a notice of intent stating this.

On 13 May 2024 the scheme was expanded to include failed asylum seekers, we have a separate article looking at those changes. The process is slightly different and is set out in different guidance.

Inadmissibility for people who claimed asylum before 28 June 2022

It is unclear how many are in this group given the clearance of the legacy backlog of most pre-28 June 2022 cases. However the recent asylum pause has included people who arrived since 1 January 2022 and were given a notice of intent for Rwanda.

I am not going to go into a lot of detail of the inadmissibility process here, as we have this briefing on these pre-28 June 2022 provisions and I have also written an overview of the different processes. The new inadmissibility guidance states on page 17 that an inadequate screening interview can leave an inadmissibility decision open to challenge, so that is a point worth bearing in mind.

The immigration rules

The relevant immigration rules at the time were paragraphs 345A which sets out the inadmissibility of non-EU applications for asylum, 345B which defined safe country and 345C which said that when an application has been deemed inadmissible, a person could be removed either to the safe third country they had a connection to, or to any other safe third country that would agree to have them.

At paragraph 345D there was provision for a claim that had been deemed inadmissible to be admitted to the UK’s asylum system and decided, where removal within a reasonable period of time was unlikely or where the Home Secretary decided that it was inappropriate because of the person’s circumstances.

This was the legal framework in place for those people who brought the Rwanda litigation, so it is useful to remember that there are no procedural barriers that actually require the Nationality and Borders Act 2022 or the Illegal Migration Act 2023 to be used. The purpose of those two Acts is mainly to remove safeguards that people can use to prevent being sent there, and also to have these processes in primary legislation so that they are more difficult to challenge.

The guidance

The inadmissibility guidance has a specific section on asylum or humanitarian protection claims made before 28 June 2022. Do remember that there are transitional provisions in place for people who contacted the Home Office before 28 June 2022 to make a claim but only had their screening interview on or after that date. People in this situation may have their claim considered as made before 28 June 2022 – check the guidance if in any doubt.

Certification to remove the right of appeal

The guidance says that when a pre-28 June 2022 asylum claim has been deemed inadmissible certification “must be considered”. For those intended to be sent to Rwanda certification would be made under part 5 of schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

The guidance says on page 14 that non-protection based human rights claims (e.g. article 8 claims based on family life) made before 28 June 2022 cannot be treated as inadmissible and must be considered but can then also be certified under the 2004 Act.

Paragraph 19 of schedule 3 of the 2004 Act then removes the right of a person to bring an appeal in respect of either the asylum or human rights claim, where the claim has been certified.

Inadmissibility for people who claimed on or after 28 June 2022

For the purposes of both inadmissibility and decisions to send people to Rwanda, the legal position is the same for all people who claimed on or after 28 June 2022. This is because the relevant provisions of the Illegal Migration Act have not yet been brought into force, which would automatically deem inadmissible any claims made by a person who entered on or after 20 July 2023. If that changes, then I will write another article explaining that process. For now, let’s try to keep things as simple as possible.

Section 16 of the Nationality and Borders Act 2022 inserted new section 80B into the Nationality, Immigration and Asylum Act 2002. This says that a person who has a connection to a ‘safe third country’ may have their asylum claim deemed inadmissible (as opposed to the Illegal Migration Act which provides for mandatory inadmissibility if brought into force). ‘Connection’ is defined at section 80C and essentially is where the Home Secretary considers that they should have claimed asylum somewhere other than the UK.

Paragraph 327F of the immigration rules extends an inadmissibility decision made on asylum claim to any associated humanitarian protection claim.

Schedule 4 of the Nationality and Borders Act 2022 amended section 77 of the Nationality, Immigration and Asylum Act 2022 to insert provisions saying that a person who has claimed asylum in the UK can be removed to a ‘safe’ country that they are not a national of.

Section 80B(3) expressly states that a declaration that an asylum claim is inadmissible is not an appealable decision (this means that certification is not needed for these cases). The remedy to challenge an inadmissibility decision will therefore be judicial review (however see below, this decision is likely to be served at the same time as a decision to remove the person to Rwanda).

Notice of intent and extensions of time

The inadmissibility guidance explains on page 22 that anyone under consideration for Rwanda will be issued with a notice of intent stating this. They are then given 7 calendar days (if detained) and 14 calendar days (if not detained) to respond to that explaining why their claim should not be deemed inadmissible and they should not be sent to Rwanda.

The notice of intent must tell people that they can apply for an extension of time to respond. For more details on extensions of time and fairness in these cases, you can revisit Asylum Aid’s arguments in the Rwanda litigation. The guidance also says that:

The grant of an extension is not necessarily an exceptional event: each request for an extension must be carefully considered on a case-by-case basis, taking account of the stated need for the extension and the particular circumstances of the claimant and their case, and the overriding principle of fairness.

Concerningly, the guidance says that rejection of a request for an extension of time can be made within the inadmissibility decision (if it will be made “promptly” – whatever that means). This means that a person would not know that their extension request has been rejected until they receive the decision that their case is inadmissible.

Responding to a notice of intent where Rwanda is the named destination

The Safety of Rwanda Act says that decision makers “must conclusively treat the Republic of Rwanda as a safe country”. However the Act still provides for individual decision making in relation to the decision to send someone to Rwanda. Section 4(1) says that decisions can be challenged “based on compelling evidence relating specifically to the person’s individual circumstances” rather than on the basis that Rwanda is unsafe generally or might remove or send the person to a country where their ECHR rights would be breached.

New guidance “Safety of Rwanda” was published on 29 April 2024 setting out how these claims will be considered. It states that the notice of intent will invite representations “as to why inadmissibility action is not appropriate and anything relevant to that person as regards the safety of Rwanda”.

Page 7 sets out the two stage test that will be used to decide whether Rwanda is unsafe for the individual person. Both parts of the test must be met for a claim to succeed. Any evidence provided will be considered by the Home Office in light of other evidence, including the treaty and country policy and information notes.

Stage 1: Has the claimant established the facts of their claim through compelling evidence?

Compelling evidence is described in the guidance as “substantial, reliable and supports the claim being made”. The type of evidence needed will vary depending on the case. An example is given of “a credible report from a suitably qualified independent expert, based on an adequate assessment”. Where evidence is inconsistent with “objectively verifiable information” it will not be considered compelling.

Stage 2: Has the claimant established by virtue of the facts of their claim that there is compelling evidence that Rwanda is not safe for them?

The example given here is “has the claimant established, by compelling evidence, that in light of their medical condition, Rwanda would not be a safe country for them, notwithstanding the protections set out in the Treaty and supporting evidence in relation to available treatment in Rwanda.”

A very similar test is set out for human rights claims on page 12 of the Rwanda guidance.

Where a medical claim has been raised, i.e. that removal to Rwanda would breach article 3 ECHR for reasons relating to their physical or mental health, evidence of this must be provided. The Rwanda guidance refers to a “Country information note Rwanda: medical” which does not currently appear to be published.

The guidance states that an assertion that a person has a medical condition will not be enough to meet the compelling evidence test (page 13).

The Rwanda guidance also says that the test to be met in a medical claim is that set out in AM (Zimbabwe) v SSHD [2020] UKSC 17, namely that:

The same test is applied in cases where the risk of suicide and self-harm are raised. The guidance also says that when considering whether there are “substantial grounds for believing there is a real risk” of self harm or suicide, the six point test in J v SSHD [2005] EWCA Civ 629 should be used (set out at page 15 and 16 of the guidance).

Timescales for the inadmissibility decision

No firm timescale is given for the inadmissibility decision to be made. The inadmissibility guidance says on page 39 that there are circumstances where longer than six months will be justified. An example given is “where third countries have actively engaged with the Home Office in discussions around admitting a person (or people), but where through no fault of the Home Office, progress towards agreement has been delayed”.

Is it really “through no fault of the Home Office” that the UK’s Supreme Court found their decision to send people to Rwanda unsafe? I would question their ability to rely on that as justification for taking longer than six months as they were well aware of the risks in sending people there, those risks only being addressed after the Supreme Court’s decision. We also know that Rwanda does not have capacity for all of those who have been threatened with being sent there, so it is difficult to see how they can reasonably rely on that example for the vast majority of people waiting for a decision (more on these legal challenges here).

Page 37 of the guidance indicates that the removal decision and inadmissibility decisions may be held pending confirmation from the “safe third country” (Rwanda) that it will accept the person. Only at this stage will the two decisions be served on the person.

Content of the inadmissibility decision

The inadmissibility guidance sets out a long bulleted list at page 25 of the minimum information that must be included in a decision letter. This includes an explanation as to why the decision maker has concluded that it would have been reasonable for the person to claim asylum in a third country they passed through on their way to the UK, as well as a response to each point made by the applicant as to why their claim should be admitted to the UK’s asylum system.

When considering whether or not it was reasonable for the person to claim asylum in a third country on their journey to the UK, the guidance sets out a two stage test that will be used (from page 31). The first stage of the test is whether the decision maker believes the applicant’s reasons for not claiming asylum in the third country.

The second stage of the test is whether, taking into consideration the reasons given, it still would have been reasonable for the person to claim asylum in the third country. For claims made before 28 June 2022, the test is whether there were “exceptional circumstances” preventing an asylum claim being made.

A decision that an asylum is inadmissible is not appealable but can be challenged by judicial review.

Removal process and decision

Section 46 of the Nationality and Borders Act 2022 amended section 10 of the Immigration and Asylum Act 1999 and inserted new provisions at sections 10A to 10E of the 1999 Act. Section 10A sets out general requirements for giving notice of removal, including the minimum period of five working days between service of the notice and the removal.

This notice period is supposed to facilitate access to legal advice, although as above, such a short period of time is unrealistic for many people to access lawyers due to the lack of capacity in the sector, particularly if hundreds of notices are issued simultaneously. The notice should give the start and end date of the notice period.

The Immigration (Removal Notices) Regulations 2023 sets out the process in more detail, including that the deemed date of service of the notice is the day it is sent by email, or the second working day after it was sent if posted.

The guidance “Enforced removals: notice period” (updated on 29 April 2024) explains that this is a three stage process. First the person will be issued a notice of liability to removal, then a notice of intention to remove, then the notice of departure details.

The notice of liability to removal tells people that they are liable to be removed from the UK as they do not have the necessary permission to be here. It is issued to people for a variety of reasons, including where there has been clandestine entry by lorry or boat.

The notice of intention to remove is the main removal decision that attracts the statutory minimum notice period. It can be served after or at the same time as the notice of liability to removal. Page 20 of the guidance provides a list of what the decision maker needs to put in this notice. Tables at pages 21 and 22 set out the latest date that a notice can be served via different methods. The notice must be accompanied by the immigration factual summary, which is a chronology of the case history.

The notice of departure details will usually be served at the same time as the notice of intention to remove. This includes the date of removal, the route and the destination.

Extensions of time

As for the notice of intent, there is provision in the enforced removals guidance from page 33 onwards for the notice period to be extended “should it be just and reasonable to do so having regard to the overriding principle of ensuring persons have sufficient access to justice”.

The person facing removal or their lawyer can ask for an extension of the notice period. Any such request must be sufficiently reasoned and justify why more time is needed. Where full representations have been made in response to the notice of intent, there may be nothing further to add at this point unless something has changed.

The guidance states that a request for an extension of the notice period is a barrier to removal, meaning that the Home Office will need to respond to the notice before taking further removal action. Relevant factors that will be considered include access to legal advice. The guidance addresses situations where a person is in an immigration removal centre or a prison and may experience delays in accessing advice, but does not address the fact that it is very unlikely for a non-detained person to be able to see a lawyer quickly. Evidence of the lack of available legal aid lawyers (see also here) may assist.

Other examples given where an extension of time might be granted include where a person has changed legal representative or requires access to documents, but the examples given are very restrictive, indicating that these are unlikely to be grounds that can be used often to extend the notice period.

Where a request is made for a person’s full file, the guidance states that they must be referred to the subject access process. The often missed 40 day deadline for a subject access request will of course be of little use within a five working day notice period, however where specific documents are requested the guidance says that it will usually be reasonable to provide these.

Extensions may also be possible where the person lacks mental capacity.

What happens if the decision to remove a person to Rwanda is maintained?

If, following any representations made, the Home Office maintains the decision to remove, the challenge to the decision will be judicial review.

The guidance “Judicial reviews, injunctions and applications to the European Court of Human Rights: in relation to enforcement of immigration removal and deportation” (version 3.0 updated 29 April 2024) has a new section from page 23 on “Safe third country removals”. This says that a judicial review will not by itself prevent removal, as Rwanda is considered safe so the person can pursue their judicial review from there.

The judicial review guidance say that where interim relief is granted, removal must not take place. If an oral hearing is listed to consider interim relief, then removal must not take place until after the hearing, if interim relief is not granted.

Interim relief is where the Safety of Rwanda Act again becomes significant, as it limits the ability of the courts or tribunal to grant interim relief and prevent removal. Section 4(4) restricts the court or tribunal from granting interim relief, unless the person would “face a real, imminent and foreseeable risk of serious and irreversible harm” if sent to Rwanda.

If interim relief is instead obtained from the European Court of Human Rights, the Act also provides for a Minister to decide that will be ignored. Page 35 of the judicial reviews guidance states that a person “must not” be removed while a decision on the rule 39 order is pending. In his speech on 22 April the Prime Minister said that the ECtHR had “amended their Rule 39 procedures in line with the tests set out in our Illegal Migration Act” which would surely mean less reason for Ministers to ignore any such orders.

Conclusion

Urgent legal advice and assistance is crucial in these cases, so far I am aware of Wilsons and Greater Manchester Immigration Aid Unit and Duncan Lewis putting up web pages detailing how to contact them to take a Rwanda case on.