Leigh Day, instructed by Asylum Aid, have today sent a pre action letter challenging the lawfulness of certain aspects of the Safety of Rwanda guidance that was published on Monday 29 April 2024.

The pre action letter is being shared widely within the immigration law sector (see below) so that the arguments contained within it can be used by anyone who is representing someone served with a notice of intent saying that they will be sent to Rwanda. 

Asylum Aid is arguing that the published policy is unlawful because it instructs Home Office caseworkers that when considering any protection claim they must certify under the relevant legislative provisions that Rwanda is a safe third country. They argue that the policy is also unlawful because it tells caseworkers that when considering any human rights challenge to removal to Rwanda they must not consider any evidence or argument about the risk that Rwanda might send someone back to another state in breach of their Convention rights. 

Asylum Aid say that this is unlawful because, despite section 2 of the Safety of Rwanda Act which sets out that “Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”, section 4 allows individuals to put forward compelling evidence that in their individual circumstances, Rwanda is not safe for them. 

Asylum Aid are arguing that on the correct interpretation of the Safety of Rwanda Act, this “compelling evidence” includes evidence that shows that there would be a breach of ECHR rights because of the real risk that Rwanda would return them to the country they fled. It is also argued that the Act does not prevent reliance on evidence which goes beyond the individual facts. 

The following is from their press release:

As a charity that provides free and high-quality legal representation to people seeking asylum in the UK, we are concerned that this inconsistency between the Act and the Policy will lead to the Home Office refusing to consider compelling evidence of individual risk, and it will impede our ability to properly advise our clients on their cases. We are also concerned that the Home Office’s policy, which could lead to it unlawfully denying people seeking asylum from being admitted into the UK asylum system, puts individuals who are unable to access effective legal representation at great risk. Therefore, we have brought forth this legal action to urge the Home Office to amend its policy to bring it into line with the Safety of Rwanda Act.

Through this formal letter, we have urged the Home Office to amend its policy in line with the Safety of Rwanda Act as we understand it. If the Home Office does not amend its policy, we intend to proceed with a judicial review to ask the High Court to rule on whether the Home Office has correctly interpreted the Rwanda Act when publishing its policy.

Alison Pickup, the Executive Director of Asylum Aid, has said:

There is a lack of information on when flights to Rwanda will take off and who will be on them, but the government has made clear that it is determined to act quickly as we have already seen the Home Office carrying out forcible detentions. The panic this causes is made worse by the limited capacity to provide high quality legal representation in the legal aid and charity sector. We have brought forward this legal action to ensure that the Home Office properly considers any individual cases against removal to Rwanda, including on the grounds that they would be returned from Rwanda to the place they fled.

Further explanation of the arguments, including why section 4(2) of the Rwanda Act does not prevent these arguments, is set out in the pre action letter. The full letter is available on the RLG googlegroup and the members’ section of the Immigration Law Practitioners’ Association’s website. Practitioners who do not have access to either of those can get a copy by emailing alison.pickup@asylumaid.org.uk.