The report into the Rwanda country policy and information notes by the Independent Chief Inspector of Borders and Immigration has finally been published. The Rwanda scheme may be over, and the relevant country notes withdrawn shortly after the Supreme Court’s decision but as I pointed out last week, there are issues with the way the Home Office treats country information and so it is still instructive to look at what went on here.

The interim inspector also makes this point, saying that “even if the CPINs under review have been withdrawn, the review raises important points about the Home Office’s approach and methodology in producing country information that is relevant to future reviews”.

Background

In a considerable understatement of the position, the interim inspector said: “The review process for these country information products has been unusual in a number of respects.” One of the reasons was that the report was not about risk in a person’s country of origin, which is what these notes are usually used for, but rather that of third country nationals being sent to Rwanda.

Another reason this review was unusual was the way in which litigation affected the process. The country notes were published by the Home Office in May 2022 to support the Rwanda scheme when it was first announced and this inspection was announced the day after publication. The review was sent to the Home Office on 18 July 2022 but on 16 August 2022 the Home Office said that it was suspending engagement with the review until at earliest the decision of the Divisional Court.

The review resumed after the Supreme Court’s decision in the Rwanda litigation on 15 November 2023 and the Independent Advisory Group on Country Information met in January 2024. David Neale, the previous inspector, was then dismissed by the Home Secretary in February 2024. The role was left vacant for three months before David Bolt returned on an interim basis, sending this report to the Home Secretary on 16 July 2024.

The Home Office disclosed the draft report under the duty of candour and it was referred to in all of the decisions in the litigation, including the Supreme Court, which said at paragraph 54 that:

Those shortcomings were highlighted when a review of the CPINs was undertaken in July 2022 for the Independent Advisory Group on Country Information (“IAGCI”), which provides advice to the Chief Inspector of Borders and Immigration in order to allow him to discharge his duty under section 48(2)(j) of the UK Borders Act 2007. The researcher responsible for the review criticised aspects of the way in which the CPINs were prepared, including “very limited critical information on the Rwandan asylum system” and “fundamental gaps of information and unanswered questions with regards to procedural practicalities and implications”.

A Home Office official said that it had been frustrating for the review to be featured in the litigation without the Home Office’s response being available (the decision to pause the review having of course been made by the Home Office).

The review

There were four country policy and information notes that were reviewed, on “assessment”, “asylum system”, “general human rights” and “interview notes”. The remit for the reviewer was as follows:

• assessing the extent to which information from source documents has been appropriately and accurately reflected in the CPIN reports
• identifying additional sources detailing relevant aspects of current conditions in the country
• noting and correcting any specific errors or omissions of fact
• making recommendations for general improvements regarding, for example, the structure of the report, its coverage or its overall approach
• ensuring no reference is made to an individual source which could expose them to risk

Because of this remit, it was concluded that a full review of the “assessment” country note was not possible because of the blurring of the lines between “pure country information” and Home Office assessment of whether Rwanda was a “safe third country”. It was also not possible for the “interview notes” document to be properly reviewed given this only had notes of interviews carried out over two Home Office visits to Rwanda, so this was reviewed from a purely methodological perspective.

The reviewer, Stephanie Huber, said that her assessment was that the interview notes did not meet the minimum standards for primary research. In particular, concerns were raised about the omission of information on the context of the meetings, such as attendees, location and how the meetings were arranged. This information would enable a better understanding of any constraints the interviewees may have been under that may have affected their ability to provide frank answers.

The Home Office said that the reviewer’s interpretation of “minimum standards” was “unrealistic and unreasonable”. The Home Office’s position was that the EU common guidelines on fact-finding missions were “intended to be adaptable and to be applied flexibly, they do not specify “minimum standards” for the collection and presentation of country information”.

The Home Office said that “it was difficult to be judged against unwritten rules that reflected a subjective view of how this research should have been carried out and presented”. The reviewer responded to this point by saying that “in a document of such high importance – given the major implications of the policy it underpins for people’s lives – she would expect a certain standard to be met” [paragraph 2.16].

Concerns were also raised about the fact that most of the sources were state officials or otherwise linked to the Rwandan government. The reviewer said that she would have expected a wider range of stakeholders to have been interviewed. The Home Office also said that “in an ideal world, interviews would have taken place without Rwandan officials present, but that compromises had been necessary” and that it was better to have the information than not.

The Home Office also said that to balance the information given by the Rwandan government, “we also provided information from UNHCR, collected from both open-source research and through an interview with UNHCR’s representatives in Kigali” (page 21). Elsewhere in the report it is noted that when UNHCR in Rwanda was approached for an interview they were not told the purpose of the meeting but were told that the information would be made public and that “these conditions made it very difficult for them to speak freely and frankly” [2.13].

The reviewer also raised the omission of information including conditions for certain people seeking asylum in Rwanda as well as the total omission of the similar agreement that Israel had with Rwanda. She pointed out that “the Supreme Court had raised questions about the Rwandan government’s commitment to non-refoulement based on what was known about the operation of the agreement under which Israel had sent migrants there between 2013 and 2018.”

In response to this point, the Home Office said that they had considered including this but “there was limited information available, particularly on the question of why those relocated to Rwanda under the agreement had left the country”. Some may say that in itself may have been considered important and worth further investigation and inclusion.

Summary points from the review

The summary of the “asylum system” note is as follows:

Overall, the asylum system Country Policy and Information Note (CPIN) is a useful starting point to map out the complexity of collating necessary country information in order to understand and fully grasp the Rwandan asylum system, whilst trying to keep it concise and as user-friendly as possible. It is welcomed that primary research in the form of interviews with a range of interlocutors was sought for the purpose of this CPIN (However, serious concerns and observations of methodological nature on those interviews and the connected interview notes are provided further below in my review on the interview notes CPIN).

However, the following were raised as concerns:

• Lack of Terms of Reference (ToR)
• Very limited critical information on the Rwandan asylum system
• Fundamental gaps of information and unanswered questions with regards to procedural practicalities and implications
• Information gaps, notably for particular groups of asylum seekers such as women, (unaccompanied) children, LGBTQI+ persons, victims of trafficking, torture survivors, Persons with disabilities, Stateless persons, and on the Israel-Rwanda agreement and Emergency Transit Mechanisms (ETMs)

The reliance on the interview notes was also raised as a problem:

One of the main sources cited and relied upon in the asylum system CPIN are the interview notes as presented in the interview notes CPIN. The review exposes serious methodological shortcomings in relation to: Purpose, Terms of Reference and methodology; Set-up of meetings, including attendees and location; Sources interviewed; Notes of meetings; and Research standards, raising the question in how far the interview notes CPIN should be relied upon as evidence by decision-makers.

For the “human rights” note, the reviewer summarised by saying that while it covered many themes of relevance, the following were concerns:

• Lack of Terms of Reference (ToR)
• Information gaps, notably on the situation and treatment of journalists, human rights defenders, critics of the current government and returnees, as well as on the rule of law and the practice of Umuganda
• Very limited critical information on children, persons with disabilities, religious minorities, ethnic minorities, migrants/foreigners, and LGBTQI+ persons

On the terms of reference point, the Home Office response was that:

we had a ToR but did not publish it because (a) decision makers are the primary audience [for the CPINs] and they do not need to see the ToR in order to perform their role; (b) the ToR evolved at different stages of the process and therefore publishing multiple iterations would have been unwieldy; (c) the ToR included legally-privileged material and (d) whilst we agree it is generally good practice to provide a ToR, we do not share the view that an absence of one affects the material which is contained in the CPIN.

The Home Office also seemed to criticise the reviewer personally by implying some sort of bias, stating:

The reviewer comments that her observation ‘is supported by’ an analysis carried out by Asylos. Asylos’ work is repeatedly relied upon throughout the review as independent corroboration of the reviewer’s statements. We note, however, the reviewer’s biography – at the end of this review – which indicates that the reviewer is a Trustee of Asylos.

First of all a disclaimer, I have been a volunteer at Asylos for several years and did some work on the Rwanda report. Secondly, the Supreme Court also referred to Asylos’ report (in the context of this review):

Although ministers and officials were aware of the Israel/Rwanda agreement and the problems which arose under it, they do not appear to have investigated why it had failed, or attempted to obtain information about the terms of the agreement or the assurances which the Rwandan government had given. The subject was not mentioned in the CPIN on asylum processing in Rwanda. This omission was the subject of criticism in the review carried out on behalf of the IAGCI. It stated (citing Wilbourn and Kloos “A Commentary on the UK Home Office Country Policy and Information Note: Rwanda, asylum system, and the related Country Policy and Information Note: Rwanda, assessment”:

“… ‘the risk of deportation of asylum seekers back to their country of origin was not adequately addressed in the Home Office publications. Under a bilateral deal between the Israeli and Rwandan governments to relocate asylum seekers from Israel to Rwanda, the majority of asylum seekers were not able to access asylum in Rwanda, and were therefore forced to travel onward from Rwanda, in what may amount to a situation of indirect refoulement. By failing to consider such information, important issues and risks are minimised and the state of the Rwandan asylum system is presented in a way that is incoherent with the available information’ … Although slightly different in nature than the UK-Rwanda Memorandum of Understanding, [the Israel-Rwanda agreement] provides a useful comparator and has been the subject of critical literature documenting its challenges, shortcomings, and ultimately its closure.”

The Supreme Court expressly disagreed with the Home Office’s assessment that this information was not relevant. This seems more likely to be the source of the Home Office’s unhappiness with the reliance on Asylos’ report rather than any actual concern about the independence of the reviewer.

Conclusion

It seems vanishingly unlikely that if the Home Office had any legitimate concerns about the review that these would not have been raised in the course of the litigation. Indeed, at paragraph 99 of the Supreme Court’s decision it was noted that “the Secretary of State asserted that the Israel/Rwanda agreement was irrelevant”, an assertion that was rejected by the court. The Home Office would be better served by being less defensive and instead focussing on improving the quality of their country policy and information notes.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

Buy now