On Monday the Home Office updated the guidance documents relating to removals to Rwanda and retroactively amended the Rwanda agreement to include the possibility of sending failed asylum seekers there. This was done via a letter from the British High Commissioner in Rwanda to Rwanda’s Permanent Secretary Ministry of Foreign Affairs and International Cooperation.

What has changed?

Despite this never having been mentioned previously as being part of the plan, the letter from the British High Commissioner explains that actually “it was the joint intention of our two Government that the word “removed” in the definition of “Relocated Individual” in Article 1(1)(1) includes the assisted relocation of any individual who does not have leave to remain in the United Kingdom to Rwanda.” This “interpretation” was then agreed by the letter in response from the Permanent Secretary.

It is interesting to note that there was seemingly no need to clarify this interpretation when extending the Rwanda scheme to voluntary returns.

Who is affected?

To make it even more clear that this interpretation is what was always meant and that nothing has actually changed, the Home Office has published brand new guidance “Removal of Failed Asylum Seekers to Rwanda“. The guidance says that

Where a person is a Failed Asylum Seeker and makes further submissions in relation to return to their country of origin that claim must be considered under paragraph 353 in accordance with the Further Submissions guidance. You only need to go on to look at removal to Rwanda and apply this guidance if the further submissions in relation to the country of origin are rejected under paragraph 353.

Those who are at risk under this guidance are people who:

• have had an earlier protection or human rights claim refused, withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules and
• do not have an appeal pending against a previous refusal of a protection or human rights claim and
• are liable to removal from the UK under section 10(1) of the Immigration and Asylum Act 1999 (1999 Act) on the basis that they do not have leave to enter or remain

The bit about claims treated as withdrawn should ring alarm bells to anyone who has been following this issue, given the huge increase in such cases last year. Some withdrawals had a questionable legal basis and others were enabled through guidance changes designed to make resisting withdrawal more difficult.

What is the process that will be followed?

The process is very similar to those who have made initial asylum claims and are threatened with being sent to Rwanda. Instead of a notice of intent, the person will be issued with a “notice of intention to remove” to which they have “at least 5 working days’ notice to seek legal advice and raise representations”.

Notably, there is no provision in the guidance for an extension of time to be requested or granted. Anyone in this position should ask for one regardless of that omission.

Responses to the notice will be considered in the same way as under the Safety of Rwanda guidance (as explained in our briefing) which is through the application of a two stage test:

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

What is the legal framework for this process?

The guidance states that where a person is liable to removal under section 10 of the Immigration and Asylum Act 1999, section 10(7) of that Act in combination with paragraph 8(1)(c)(iv) of Schedule 2 to the Immigration Act 1971 provides for a person to be removed to a country where there is reason to believe they will be admitted, i.e. Rwanda.

Other points to note in the guidance

The guidance states on page 6 that “Once in our custody for the purposes of removal to Rwanda, any requests made by individuals to voluntarily return to their country of origin will not be accepted.”

I want to reiterate the importance of the omission of an extension of time process, I suspect that we will see version 2 of the guidance sooner rather than later (as has been the case with the Safety of Rwanda guidance, which was also updated on Monday following Asylum Aid’s challenge, meaning we were onto version 2 within days of its initial publication). For more on the importance of this, see this earlier post on fairness in safe third country removals.

Conclusion

The Home Office just doesn’t seem very confident in its ability to remove people who are trying to claim asylum here, as we have seen the goalposts shifted in the past few weeks to include voluntary returns and now failed asylum seekers. It is important to remember that people who need to make further submissions after having their asylum claim refused are often outside the Home Office system entirely, and this change in policy will certainly not encourage them to re-engage.

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