There are a number of general and individual judicial review challenges to the government’s policy of removing asylum seekers to Rwanda.

To recap, in April 2022 the government announced a Migration and Economic Development Partnership with Rwanda for the provision of “an asylum partnership arrangement”. Under this arrangement, asylum seekers who make dangerous irregular journeys to the UK would be relocated to Rwanda and have their asylum claims processed there. If successful, or if they were granted a visa on another basis, the stated intention is that they would live in Rwanda in the long term.

The agreement is underpinned by a Memorandum of Understanding and Notes Verbales (disclosed in the litigation but yet not published) under which the UK and Rwanda make a number of promises as to, for example, safeguards for how asylum claims will be considered by the Rwandan government and living conditions. The promises given under the arrangement are expressed as not binding in international law, not creating individual rights, and not justiciable in a court of law.

The Home Office also published country policy and information notes which address the human rights situation in Rwanda and the country’s asylum system.

The first removal flight, scheduled to take off on 14 June 2022, was grounded after the European Court of Human Rights issued Rule 39 interim measures in a number of individual cases. Despite some initial bluster to the contrary, the government now seems to accept that there will be no further removal flights until the legal challenges are resolved.

The September hearing

A number of general and individual challenges were heard by Lord Justice Lewis and Mr Justice Swift in the Divisional Court on 5-9 September 2022.

The core general challenge focussed on the safety of Rwanda for people removed there. This encompassed whether the UK government has complied with its duties of inquiry and investigation at common law and under article 3 of the European Court of Human Rights; whether there are systemic deficiencies in Rwandan’s asylum system are such that there is a risk of breaches of the Refugee Convention for people removed, including onward refoulement (expulsion from Rwanda); and whether there was a requirement to formally designate Rwanda as a safe third country under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

Other general challenges included whether removal to Rwanda constitutes a penalty contrary to Article 31 of the Refugee Convention (and UK law giving effect to the same, section 2 of the Asylum and Immigration Appeals Act 1993). Whether the policy breaches in retained EU law (Articles 25 and 27 of the Procedures Directive). Whether the guidance as to eligibility for removal to Rwanda had to be laid before Parliament under section 3(2) of the Immigration Act 1971. And whether aspects of the policy framework are deficient, including, for example, the failure to have a published suitability policy.

The individual grounds targeted individual immigration decisions that asylum claims were inadmissible, for example, because of the failure to claim asylum in a safe country before travelling to the UK. They also focus on whether Rwanda is a safe third country, and on whether human rights claims that removal would breach article 3 of the European Court of Human Rights were “clearly unfounded”.

The United Nations High Commissioner for Refugees was granted permission to intervene and filed detailed evidence and submissions focussing on Rwanda’s refugee status determination system. The unequivocal position in this hearing was that no removals should take place to Rwanda under the policy due to deficiencies in Rwanda’s system which, in particular, meant there were risks of onwards refoulement.

The October hearings

On 13-14 October 2022, Asylum Aid’s challenge will be heard by the Divisional Court. This challenge focuses on the fairness of the decision-making process that leads to the removal of an individual to Rwanda.

There is, in addition, a third hearing (SAA CO/2094/2022) which focuses on the compatibility of the policy with data protection legislation.

At earlier case management hearings, the court indicated that the same Divisional Court would hear all of the cases.

Another group of cases, which are currently stayed pending the cases being heard in September and October, focus on the legality of removing victims of trafficking and modern slavery to Rwanda under the arrangement.

What is likely to happen after the High Court hearings?

At the end of the September hearing, the court indicated that after the October hearings it would hand down one judgment dealing with all issues and cases.

It seems likely that whatever the High Court decides, there will be onward appeals. Ultimately, cases based on the European Convention on Human Rights may end up in the European Court of Human Rights.

Meanwhile, whatever happens with the general challenges, individual immigration decisions could be found to be unlawful, which would mean the Home Office would have to consider their decisions again. Presumably, any new decisions would have to be challenged in further judicial review proceedings and, if only individual immigration decisions were challenged, in the Upper Tribunal.

If the Home Office concludes that individual human rights decisions cannot be certified as clearly unfounded, there would then be statutory appeals and potentially, eventually, a country guidance case on the safety of returns to Rwanda.

So whatever happens in the High Court hearings, it seems likely to be quite some time before this litigation reaches a final resolution and the government (assuming it succeeds) can start removals to Rwanda.