Rwanda: procedural fairness and extensions of time

As I explained in a previous blog, in its June 2023 judgment in AAA & Others v SSHD, the Court of Appeal accepted Asylum Aid’s case that, in a majority of cases, the seven day period allowed by the Home Office for those in detention to respond to a notice of intent threatening removal to Rwanda would not be enough to ensure procedural fairness. Despite this, the Home Office’s new Inadmissibility guidance version 8.0, published on 29 April 2024, still provides for a “standard timescale” of seven days for those who are detained and 14 days for others (p. 22).

However, unlike the previous iteration of the guidance, the guidance now makes clear that “claimants may request extensions to these timescales” and that “The grant of an extension is not necessarily an exceptional event”. It also emphasizes that decisions must be taken after careful consideration of the particular circumstances of the case, and “the overriding principle of fairness”.

This blog considers what this means for individuals and legal representatives and how to go about ensuring your client has a fair chance to make their case against removal to Rwanda.  It should be read alongside my earlier post on procedural fairness, Sonia Lenegan’s helpful Briefing on the Safety of Rwanda (Asylum & Immigration) Act 2024, and tomorrow’s post on the scope of section 4 of the Rwanda Act.

For cases where the client has been in the inadmissibility procedure for more than six months already, you might also find this post on inadmissibility delay helpful.

The key point is: you will have strong grounds for obtaining an extension in almost all cases but you should prepare on the basis that your request may be unreasonably refused. You will want to frontload requests, spelling out in as much detail as possible as to why more time is needed, including what steps you / your client have taken to date, and a full explanation of the further work that is now required and how long you think that will take.

Think of it as similar to making an adjournment application in the Tribunal (and refer to the guidance on this in the Best Practice Guide on EIN). Tell the Home Office that it would be unfair – and therefore unlawful – not to give you the time that you are asking for. If they refuse a reasonable request, you will need to judicially review that refusal.

Helpful points to include when asking for an extension of time

The following points may be helpful when drafting your extension request:

Effective access to legal representation

First, the Court of Appeal was clear in AAA & Others that fairness in the inadmissibility procedure requires effective access to legal representation in all but exceptional cases. Importantly, it considered that this is a necessary prerequisite of a fair procedure even if you only need to put forward any individual facts (see para 429).

Therefore, if a person facing removal to Rwanda has not had effective access to legal representation there can be no question that an extension should be granted to allow them to have such access. If, for example, you are instructed by an individual on the last day of the seven-day period, or even after it has expired, then you will obviously need an initial extension of time to obtain instructions and advise your client. This is the case regardless of the correct interpretation of the scope of s4(1) of the Rwanda Act because at the very least you will need to know whether your client has any evidence to put forward as to the inadmissibility criteria including any compelling evidence of the risk of harm to them in their particular circumstances in Rwanda.

Time needed to submit effective representations

Second, the Court of Appeal agreed that it would be “impossible” to submit effective representations within seven days “even if they have ready access to legal assistance and only wish to make representations on matters specific to their particular circumstances”. So even if you are instructed right at the beginning of the seven-day period, or even before a notice of intent is served, it should not take much to obtain an extension of time (at least in theory).

Explain the practical steps that need to be taken

Third, what is required is that your client have a fair opportunity to effectively participate in the procedure which is going to determine their fundamental rights. You may need to spell out for the Home Office what this means for you as legal representative.

Do not be afraid to ask for the time that you really need and make clear to the Home Office that it would be unfair – and therefore unlawful – to refuse the extension of time needed. This includes time to build trust with a client who may be in detention and will certainly be frightened, confused and anxious.

If they are in detention the speed within which you can act will be affected by the opportunities you have to visit them to take instructions and any limitations on their ability to communicate with you confidentially by phone, email, Whatsapp etc, as well as your ability to arrange appropriate interpreting services. There are reports of serious restrictions on communication in some detention centres.

In any case, you will need time to:

• Assess eligibility for legal aid, complete necessary forms and obtain satisfactory evidence of means
• Obtain copies of the Home Office file including any previous interviews or representations or evidence submitted by the client prior to their detention
• If relevant obtain files from previous representatives
• Take full instructions from your client including on anything material in these files once obtained. Your instructions will need to cover the relevant inadmissibility criteria, which means taking a full history of their journey to the UK in order to understand their reasons for not claiming asylum in any safe countries through which they passed, as well as investigating what issues mean that Rwanda is not a safe country for them, family or other connections to the UK, medical conditions, any trafficking history and any other reasons why their claim should not be treated as inadmissible
• Obtain medical records including from GPs and other community health services for clients who have been living in the community for up to two years
• Investigate any family relationships and obtain evidence to substantiate this.
• Instruct independent medical experts, including obtaining funding
• Instruct any other necessary independent experts including country experts, independent social workers, etc, including obtaining funding
• Obtain translations of any relevant documents which are not available in English
• Obtain witness statements from family members, carers, or people who can testify to risk of harm in the country of origin or in Rwanda
• Draft representations, including considering the legal and factual framework into which all of the above has to fit (see below), then check your representations with your client and obtain their approval to submit these.

Novel and complex law

Fourth, there can be no doubt that the issues are both factually and legally complex and in order to advise and properly represent your client you need time to understand both the novel legal framework established by the Safety of Rwanda Act (as well as the changes to the inadmissibility procedure made by the Nationality and Borders Act for claims made on/after 28 June 2022, which have not really had to be considered as barely any inadmissibility decisions have been made since it came into force).

You also need to understand the implications of the new Treaty with Rwanda, to consider the new country policy information notes published by the Home Office on 29 April and also on 3 May, and to consider the available evidence as to the effectiveness of the provisions of the Treaty in practice. Again, this is true whatever the correct scope of section 4 of the Safety of Rwanda Act because the Treaty provisions and material in the country policy information notes go to conditions in Rwanda and the treatment of people removed there, along with any other relevant evidence about conditions in Rwanda which you will obtain to support your client’s claim under section 4(1).

Such evidence is not only relevant to the likelihood of onward removal (which the Home Office guidance states is excluded by section 4(2) – see this separate post which explains why Asylum Aid believes this guidance mis-states the law).

It is worth noting that the Safety of Rwanda Guidance (version 2.0) (at pp.12-14) anticipates that people will be making human rights claims which are based on/supported by evidence of real risks of harm in Rwanda in practice, and that decision-makers are required by the Act to grapple with the evidence you provide in support of your client’s claim (i.e. it cannot simply be assumed that any safeguards, in the Rwanda Treaty or otherwise, are in place or functioning).  For example, decision-makers will need to consider, in light of your client’s submissions and supporting evidence, whether “Rwanda has [in fact] effective mechanisms to reduce the risk of suicide”.  

All of this takes time, all of it is new.

The high threshold required by the Home Office to resist removal is more time consuming to meet

Fifth, in the case of removal to Rwanda, the statutory test is now that there must be “compelling evidence relating specifically to the person’s particular individual circumstances” to show that Rwanda is not a safe country for that person (s4(1) of the Safety of Rwanda Act). On its face this is a higher threshold and more time will therefore be needed to gather such evidence.

Other commitments

Sixth, this will not be your only work. You have other clients who cannot be neglected. Your client may also need advice on bail, on a referral into the National Referral Mechanism as a potential victim of trafficking or modern slavery, or on an age dispute. Securing their release from detention is no less pressing.

Fairness is key

Seventh, remember that the overarching test is fairness. The Court of Appeal said extensions should be granted “where more time is reasonably required”. The guidance says that it should not be “exceptional”.

Challenging refusals

Ultimately, if your client is refused an extension of time that they reasonably need in order for you to properly and effectively put forward their case, then you will need to challenge that decision by way of judicial review. That will include seeking an interim injunction preventing the Home Office from taking any inadmissibility decision or action to remove your client until you have had a fair opportunity to prepare their case.