Rwanda Act: UK went against Nov 2023 Supreme Court judgement

Right to Remain, an organization that fights against injustice of asylum/immigration system in the UK has accused the United government of going against the November 2023 judgement barred it from deporting asylum seekers to Rwanda.

According to Right to remain the Supreme Court
unequivocally decided that Rwanda is not a safe third country.

Writing under the heading ‘What we know about the Rwanda Act and Treaty so far’, Right to Remain said:
“On Friday 25 April, the government’s Safety of Rwanda (Asylum and Immigration) Act 2024 received Royal Assent and became law. At the same time, the UK’s Treaty (agreement) with Rwanda was ratified. This means that the treaty has become legally binding upon the UK and Rwanda.”

This, it said is a dark moment for the UK, and will cause much harm to many communities.

“The passing of the Act means that the UK government has gone directly against the judgment of the Supreme Court in November 2023 which unequivocally decided that Rwanda is not a safe third country. This means that the Court found that Rwanda is not a safe country to remove someone to because there is no guarantee that Rwanda would be a safe place for them, or that it would refrain from sending them to their country of origin where they could be at risk of danger). For this reason, it was decided that the UK government could not legally continue to pursue the initiative to remove people claiming asylum in the UK to Rwanda. You can read more about the Supreme Court’s decision here.

“In order to get around this decision – and, unusually for the political setup in the UK, which separates power between the government, the Parliament, and the courts so that no one institution becomes too powerful and threatens democracy – the UK government then introduced the Safety of Rwanda Bill (now Act) in December 2023.”

In trying to get around every legal and political action that has stopped flights to Rwanda so far, Right to Remain said the Act attempts to effectively shield Rwanda from any criticism or appeal. It strips legal and political bodies of the right to criticise individual decisions or the Act/Treaty at large.

The Act: States that every decision-maker (this means Home Office immigration officers and judges in courts) must treat Rwanda as a safe country.
Disapplies the provisions of the Human Rights Act
Limits the ability of the European Court of Human Rights to implement interim measures (for example, to stop a flight)
Prevents all courts/tribunals from considering any appeals, claims, or complaints (from individuals who have been sent Rwanda removal directions) that are about:
Rwanda not being a safe country (unless this relates to the specific individual and their circumstances), or
Rwanda potentially removing a person to another State against its international legal obligations, or
The risk that Rwanda will not consider an asylum/immigration claim fairly or properly, or
The risk that Rwanda will not Act in accordance with the Rwanda Treaty.
The Act was pushed through Parliament very, very quickly and became law on 25 April 2024. You can read the full Act here.”

Continuing, it said: “The ratification of the Treaty is also very controversial. The House of Lords (the unelected chamber of the UK Parliament) voted in January to defeat the government’s ratification of the Treaty because the protections promised in the Treaty (which would supposedly make Rwanda a safe third country) have not yet been put into place. The Treaty has therefore been ratified without the safeguards that are meant to provide alleged assurances of safety.

“The Treaty also seeks to set up ‘mechanisms’ to make the relocation of people who have claimed asylum in the UK to Rwanda happen. This includes effectively setting up an entirely separate judicial system dedicated specifically to Rwanda decisions. This is unusual and highly unlikely to be practical, given that the judiciary in the UK (and particularly the immigration/asylum system) is under extreme pressure and arguably at crisis point. You can read the full Treaty here.”

It added that this means that the Act has passed against the judgment of the Supreme Court, and the Treaty has been ratified without full approval from Parliament (without safeguards in place).

What does this mean in reality? Who is at risk of receiving Rwanda removal directions?
This is devastating for the migrant community in the UK: even if no one ever ends up on a flight to Rwanda, the fear, misinformation, and grief surrounding this initiative is huge.

The passing of the Act and ratification of the Treaty means that people who fulfil the requirements of removal to Rwanda have already and will continue to receive notices of removal from the Home Office. There will also be an increase in the number of people who are at risk of, and end up in, pre-removal detention in the UK.

You may be at risk of detention/removal to Rwanda if:

If you received a decision under the inadmissibility rules (this comes after a notice of intent letter)
If you received a removal decision
If you received removal directions which specifically mentions Rwanda
You can read more about the Inadmissibility Rules in our Toolkit page here.

Generally, an asylum claim in the UK may be found to be inadmissible if the person who claims asylum has or had a connection to another safe third country. For example, if they stayed in another European country on their way to the UK, or received refugee status in another country. Confusingly, under the Illegal Migration Act 2023, anyone who arrived in the UK after 20 July 2023 falls into this category. You can read more about the Illegal Migration Act in our Legal Update here.

The Home Office guidance on inadmissibility says that, a person who is otherwise suitable for inadmissibility action may be eligible for removal to Rwanda if:

you claimed asylum on or after 1 January 2022, and
your journey to the UK can be described as having been dangerous
you do not have families with children under the age of 18 may (although families with children may be considered for inadmissibility action where removal is to other countries).
As devastating as the Rwanda initiative and the government’s determination to pursue it is, it is important to bear in mind the following facts:

When thinking about removal, it is important to note that section 2 of the Illegal Migration Act, amongst many other sections – upon which the rest of the Act depends – has not yet been enforced. This means that, although the Illegal Migration Act is a law that has been passed, it has not been implemented in real life. Read more about this here.
In order for someone to be sent to Rwanda under the Act or Treaty, they must first endure a period of detention. The risk of being sent to Rwanda applies to hundreds of thousands of people in the UK. Detention centres in the UK are already almost at capacity. It is not practically possible to detain everyone who is at risk of removal to Rwanda.
Rwanda has allegedly only agreed to receive approximately 2,000 people who have claimed asylum in the UK this year. Although we believe that no one should be sent to Rwanda from the UK, this shows how small scale the plan really is, and how much of it is a tactic used to isolate and terrify people claiming asylum in the UK.
Since January 2021 when the Inadmissibility Rules were initially introduced, over 77,000 people have received notices of inadmissibility (a notice from the Home Office that they are considering whether a person falls under the rules). Of that group, 84 have received a decision of inadmissibility (a decision that the person does indeed fall under the rules). In total, 25 people have been removed from the UK under the inadmissibility rules, and most of them are EU or EEA citizens because people from those countries are not allowed to claim asylum in the UK.
The Prime Minister has said that flights are to take place within the next 10-12 weeks (around June/July). There is no indication of how this will happen or who the flight carrier (if there is one) will be.
On specific appeals against specific individuals being sent to Rwanda, the Prime Minister has said that 25 courtrooms and hundreds of judges would be made available to preside over hearings. However, representatives of the judiciary have made clear that the deployment of judges is a matter for the judiciary, not the government.
How can a Rwanda removal notice be disputed?
There is one restricted instance in which removal to Rwanda under the Act can be disputed or appealed. The Act says that when a court is considering a review or appeal of a decision to remove a person to Rwanda, the court may grant an interim remedy (to prevent or delay) removal to Rwanda only if the court is satisfied that the person would face a real, imminent and foreseeable risk of serious and irreversible harm if removed to the Rwanda.

This is a very stringent threshold to reach, and must be specific to the person. You (or your lawyer) must show why you specifically would face a real, imminent (that means immediate), and foreseeable risk of serious and irreversible harm if you were removed to Rwanda. It is not enough to say that Rwanda is a generally dangerous place where many people would face this kind of harm or risk.

Duncan Lewis Solicitors’ Public Team is preparing to represent people who have been detained with and need to dispute Rwanda removal directions. They have sent workflow instructions to detention organisations, so please get in touch with them should you require representation or if you are supporting someone in detention.