Fairness in safe third country removals: the Court of Appeal’s judgment in Asylum Aid’s case

Readers of this blog will have noticed that the fairness of the Home Office’s procedure for deciding who to send to Rwanda is not among the issues being argued in the Supreme Court in October. This post highlights the important findings made by the Court of Appeal on procedural fairness and what it means for future third country procedures, including under the Illegal Migration Act.

Asylum Aid’s case

The procedure used by the Home Office to decide who to send to Rwanda in 2022 was deliberately designed to be quick. It was based on an assumption that the issues were simple, so that it would be unusual for there to be anything to really argue about. It started with a standard screening interview, followed by service of a notice of intent informing the person they may be removed to Rwanda.

At the start, most of those facing removal were in detention. They were given just seven days after the notice of intent to find a lawyer, understand what was happening to them, give instructions and put forward any evidence or arguments against removal. This was obviously too short a period.

Following those seven days, the Home Office would make a series of complex decisions leading to removal: on inadmissibility, the safety of Rwanda generally and for the individual, refusal and (usually) certification of any human rights claims. These would be served with only the standard five working day notice period before removal.

Asylum Aid argued that this procedure was so truncated that it was inherently unfair and there was a real risk of people seeking asylum being denied access to justice before being send to Rwanda.

The Divisional Court rejected our case, holding that there was no right to make representations on the general safety of Rwanda. It was only necessary for people to have a chance to put forward any individual facts. In the circumstances, the court held, seven days was enough time.

The court also held that because all that was needed was a chance to put forward any individual facts, access to legal advice was not necessary. Five working days following service of the decisions was enough time to get access to justice.

The Court of Appeal’s judgment

The Court of Appeal dismissed Asylum Aid’s appeal. It did so because it concluded that the procedure was not inherently unfair because there was a way it could (with adaptations) be operated fairly. However it is important – and the purpose of this post – to look beyond that overarching conclusion for three reasons.

First, the Court of Appeal rejected the Divisional Court’s reasons for dismissing our case. People facing removal to Rwanda have a right to make representations on all matters relevant to the decision, including the Home Secretary’s assessment that Rwanda is generally a safe place to send people seeking asylum (para 421). They must have a fair opportunity to put forward a case that it is not, including where appropriate expert and other country evidence, as well as their own facts. 

The court also considered that fairness required effective access to legal representation in all but exceptional cases, even if the scope of the right to make representations was as limited as the Divisional Court held. As Underhill LJ concluded at para 429:

In my view it is impossible…to support a general proposition (if this is really what the court intended) that procedural fairness will never require that an asylum-seeker who is at risk of removal to Rwanda under the MEDP be provided with legal assistance to make representations before the removal decision is taken, even if they are not addressing the general safety question.  There may be cases where a decision is fair even where there has been no access to legal assistance, but they are likely to be exceptional.  As we have seen, the Secretary of State does not contend otherwise and it is her policy to ensure that legal assistance is indeed available.

Secondly, the court accepted Asylum Aid’s case that the seven-day period allowed for making representations was inadequate “in the majority of cases”, Underhill LJ observing that (para 441):

The evidence clearly establishes and it is in any event obvious as a matter of common sense and experience that in many cases it will be impossible for claimants to submit effective representations within seven days of receipt of a notice of intent. This is the case even if they have ready access to legal assistance and only wish to make representations on matters specific to their particular circumstances.

However, the seven-day timeframe was not unlawful as a “’base-line’ timetable”, provided that the Home Office “is ready and willing to grant extensions in those cases where more time is reasonably required” (para 442).

Thirdly, the court held that in order to address the inadequacy of the “’base-line’ timetable” in the majority of cases, the Home Office must publish a policy on granting extensions. This must make clear “that the seven-day period should not be treated as a norm and that the grant of extensions is not necessarily exceptional” (para 443). It was only the possibility of publication – and application – of such guidance that saved the procedure from being inherently unfair (para 445).

The court also made it clear that they were not endorsing the current policy and in doing so observed that there was “no specific reference to the overriding requirement of fairness” (para 444).

What next?

Asylum Aid did not seek permission to appeal from the Supreme Court and the issue of procedural fairness will not be before that court in October. If the Supreme Court allows the Home Secretary’s appeal on safety, or if some other development means that removals to Rwanda or another third country are again in prospect, the Home Office will need to design a procedure which complies with the Court of Appeal’s judgment. The court’s findings about what fairness requires in this context will be crucial in assessing the lawfulness of any such procedure.

This includes when implementing the Illegal Migration Act 2023. The suspensive claims procedure in sections 38-56 of that Act bears similarities to the Rwanda procedure. As with Rwanda, the expectation is that most people will be in detention. It is unlikely there will be anything more than a screening interview before third country removal notices are issued. The issues are as complex and as important. There is no statutory presumption of safety, at least in relation to Rwanda.

The Act provides for only eight days (including the day a removal notice is served, so the same as the seven days the Court of Appeal considered) to raise a suspensive claim (sections 42(7) and 43(7)). Compelling evidence is needed to support such a claim (sections 42(5) and 43(5)). The Act provides for free legal advice to be made available in principle (section 56) and it will need to be accessible and effective in practice. The Act contemplates extensions of time (sections 42(6) and 43(6)).

It is essential in light of the Court of Appeal’s judgment that the Home Secretary publishes guidance on the granting of such extensions, which will also need to make clear that the ‘base-line’ is not the norm and such extensions are “not necessarily exceptional”. Extension decisions will also be subject to the overriding requirement of fairness and the guidance should reflect this.