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Government to face multiple legal challenges over lawfulness of new policy to send asylum seekers to Rwanda


Detention Action, Care4Calais, Freedom from Torture, and Open Rights Group among the challengers

Date of Publication:
03 May 2022

Government to face multiple legal challenges over lawfulness of new policy to send asylum seekers to Rwanda

03 May 2022

The Government's new migration partnership with Rwanda is set to face multiple legal challenges.

Justice statueUnder the migration partnership, the UK plans to relocate a so far unspecified number of asylum seekers to the east African country. Any asylum seekers who are relocated will have their claims processed by Rwanda and will not return to the UK, even if they are recognised as genuine refugees. Labour's shadow Minister for Immigration, Stephen Kinnock, referred to the policy as offloading rather than offshoring.

The charities Detention Action and Care4Calais announced last week that they are bringing a legal challenge against the policy. The challenge is being brought together with the Public and Commercial Services Union (PCS), which represents Home Office staff who will be carrying out the policy.

Detention Action says the challenge argues that the Home Secretary's failure to reveal the criteria for deciding who will be sent to Rwanda is an unlawful breach of her duty of transparency and the wider constitutional right of access to justice.

Care4Calais stated: "It is essential that governments are made to explain themselves. A democratic government's decisions must be transparent, and ministers must be accountable, so that we know what is being done in our name. If governments are not challenged, they may try to act illegally."

The legal challenge will also argue that removing asylum seekers from the UK and sending them to Rwanda is unlawful and in contravention of the Refugee Convention.

Bella Sankey, the Director of Detention Action, said: "We believe that this entire policy is unlawful, both the secrecy surrounding the selection criteria and the whole premise of penalising refugees, by expulsion to Rwanda, for fleeing without papers and permission. The Rule of Law is fundamental to our Constitution, and despite this Government's clear disdain for it, we will hold them to account"

The PCS General Secretary, Mark Serwotka, commented: "We have asked the Home Office for details of what precisely they expect our members to do in respect of this policy and the legal basis for it. Nothing has been forthcoming. They are again playing fast and loose with our members' safety and well-being."

In a press release published last week, Leigh Day solicitors said it was acting for the charity Freedom from Torture and had written to the Home Secretary with a request to see documents relating to the migration partnership with Rwanda.

Leigh Day partner Tessa Gregory explained: "Our client, Freedom from Torture, has serious concerns about the lawfulness of the Government's policy in respect of relocating asylum seekers to Rwanda. Although a Memorandum of Understanding has been published, further details and documents relating to the policy have not been made publicly available. Urgent disclosure is needed for our client to understand the exact terms and scope of the policy and properly formulate its legal challenge."

Freedom from Torture said it hoped the legal challenge would lead to the Home Office withdrawing the policy, as happened recently with proposals to intercept and turn back boats in the English Channel (see Leigh Day's earlier press release here for details).

Also last week, the Open Rights Group said on Twitter that it had teamed up with the digital rights NGO Foxglove for a legal challenge over the lawfulness of transferring the personal data of asylum seekers to the Rwandan government.

"You can't just fork over refugees' sensitive details to regimes where there is no rule of law," Foxglove said.

Finally, The Times reported last week that two asylum seekers had instructed InstaLaw solicitors in a court challenge against the policy. The asylum seekers from Eritrea and Iran entered the UK via lorry earlier this year and fear they could be amongst the first to be removed to Rwanda.

According to The Times, the challenge will argue that that ministers do not have the prerogative powers to agree an international deal without first seeking approval in Parliament.

A Home Office source told The Times: "We welcome the challenge and it was always to be expected."

In response to news of other legal challenges, the Guardian quoted a Home Office spokesperson as saying: "Our new migration and economic development partnership with Rwanda fully complies with all international and national law. Whilst we expect the partnership to be challenged in the court, we will defend any legal challenge robustly."

Earlier last month, the Mirror reported, however, that unnamed senior Conservatives said Home Secretary Priti Patel hoped the deal with Rwanda would become so bogged down in legal challenges that she would never have to implement it and it would be quietly forgotten.

One former minister told the Mirror that the main purpose of the policy was to "throw some red meat to former UKIP voters," while another unnamed Conservative MP said: "Priti will now be able to blame left-wing lawyers for scuppering this. I know there are those in the Home Office who think that was the plan all along."

Sunder Katwala, the Director of the think-tank British Future, said on Twitter yesterday that he believes the Government has very likely raised unrealistic expectations about the potential scale of the Rwanda policy.

Katwala noted: "If it gets through legal challenges, Rwanda may take 1-2% of those who cross the Channel … The PM has vowed to Daily Mail Rwanda scheme will deport 'tens of thousands' to Africa. The Rwandan government suggest their capacity is more in the hundreds, not the thousands."