How to get clients out of inadmissibility limbo and into the asylum system

Inadmissibility limbo: The backlog of cases in the inadmissibility process was in the news again last week following senior Home Officials’ evidence session at the Public Accounts Committee on Monday. This article looks at legal arguments that can be made in relation to the Home Office’s delay in making admissibility decisions for people who have been issued with notices of intent for Rwanda.

It is increasingly important that practitioners are aware of the legal options available for those in this backlog, as the lengthy wait that the huge numbers of people in this group are experiencing may very well be unlawful. The below draws on Asylum Aid’s recent experience of successfully challenging the Home Office by way of judicial review, which has resulted in some of our clients being admitted to the UK asylum system after a long period of limbo.

Background

As previously reported on this blog, tens of thousands of people have been served with notices of intent since the Rwanda policy was announced. The first notices of intent concerning Rwanda were issued as early as May 2022, nearly two years ago, and many of those who received them are still waiting for admissibility decisions. This legal limbo means that they cannot advance their protection claims in the UK or seek protection elsewhere.

Not one person has been sent to Rwanda despite the exorbitant costs of the UK-Rwanda partnership. We know that even if flights to Rwanda get off the ground, only a few hundred people will actually be sent there.

Yet many (possibly the majority) of those thousands of people are languishing in limbo, as part of the Home Office’s backlog of inadmissibility decisions. With the passage of the Safety of Rwanda (Asylum and Immigration) Bill through Parliament, many practitioners will be anxiously considering what can be done to challenge the Home Office’s delays in making admissibility decisions.

Extended legal limbo, fear of being removed to Rwanda and feelings of insecurity and uncertainty are key problems faced by asylum claimants who came to the UK months – if not years – ago, sought protection and were issued notices of intent informing them that their claims may be considered inadmissible and they may be removed to Rwanda.

The legal position

The starting point is to remember that the Supreme Court in the judgment of R (AAA & Ors) v Secretary of State for the Home Department [2023] UKSC 42 unanimously upheld the Court of Appeal’s conclusion that the Rwanda policy is unlawful and that Rwanda was not safe. Until the Safety of Rwanda Bill becomes law, the legal position is that Rwanda is not safe. Practitioners representing clients issued with notice of intent since May 2022 should consider challenging these via judicial review on the basis that the extended legal limbo that their clients are in is unlawful.

For those who arrived before 28 June 2022, the Home Office’s power to decide whether to admit an asylum claim or to treat it as inadmissible is governed by paragraphs 345A-345D of the immigration rules and their caseworker guidance ‘Inadmissibility: safe third country cases‘.

For those who arrived on or after 28 June 2022, the power is governed by the Nationality and Borders Act 2022, which inserted sections 80B and 80C into the Nationality, Immigration and Asylum Act 2002. This widened the wider scope for asylum claims made after 28 June 2022 to be treated as inadmissible on where they passed through a third country on the way to the UK.

Neither the rules, the legislation nor the guidance lay down a firm time limit for a decision on admissibility. However, the Home Office accepts in the guidance that the ‘inadmissibility process must not create a lengthy limbo position’.

Safeguards against a lengthy limbo

Both the immigration rules and the guidance on inadmissibility provide some safeguards against leaving asylum claimants in extended legal limbo. These safeguards include a presumption that the agreement of a ‘safe’ third country for an individual’s removal should normally be obtained within six months of the asylum claim being registered.

The Home Office’s guidance also provides for the prioritisation of inadmissibility decisions. This refers to the prospects of ‘an individual being removed within a reasonable time including consideration of their particular circumstances’ and ‘operational capacity’.

Most importantly, the guidance recognises that if it is not possible to make an inadmissibility decision or effect removal within a ‘reasonable period’, inadmissibility action must be discontinued and the claim must be admitted to the UK asylum process for substantive consideration. Despite this, many claimants who raised protection claims in 2022 and received a notice of intent are still waiting for their claims to be admitted and the inadmissibility process to be discontinued.

This raises a key question of whether the delay is reasonable and lawful. Below some of the different grounds for challenge are set out, along with what supporting evidence should be submitted.

Paused cases

On 14 February 2024, the Home Office announced that it had ‘decided to maintain a general pause in the making of inadmissibility decisions’ [emphasis added]. Those affected are people who had arrived in the UK between 1 January 2022 and 23 June 2023 (the date of the Court of Appeal’s judgment that Rwanda is not safe), and had been given a notice of intent relating to potential removals to Rwanda.

The announcement of the pause said that it would last while the Home Office completes work to address the findings of the Supreme Court regarding safety of Rwanda (presumably referring to the Safety of Rwanda Bill). While the pause remains in place, decisions on admissibility for affected cases will only be taken if there are ‘compelling reasons’ in an individual case.

Although the announcement states that it ‘does not represent a policy change’, the word ‘maintains’ implies that there had, in fact, already been an unpublished policy of applying a ‘general pause’ on admissibility decisions to this category of asylum claimants before the announcement of 14 February 2024.

The pause in making admissibility decisions appears to be contrary to the purpose of not creating a lengthy limbo position as expressly set out in the inadmissibility guidance. The practical effect of the ‘pause’ is to ‘maintain’ the limbo situation for a large number of asylum seekers.

Evidence to support a claim that the delay is unreasonable

Factors relevant to whether the delay has exceeded what is reasonable and whether there are ‘compelling reasons’ (required for paused cases) why a claim should now be admitted must include an assessment of the person’s particular circumstances. This includes any vulnerabilities, mental ill-health, detriment suffered as result of delay, what if any opportunity there was to claim asylum before arrival in the UK, any history of exploitation and the length of time which they have already been in limbo.

Where possible and relevant, it will be helpful to obtain evidence documenting any mental or physical health problems. Medical evidence will help to demonstrate the impact of limbo and may also assist in showing that the person should be admitted to the asylum system and not be transferred to Rwanda.

Notices of intent issued during the period Rwanda was deemed unsafe

Even if Rwanda is now to be declared a ‘safe’ country by an Act of Parliament, it was not a ‘safe third country’ when notices of intent were being issued in 2022. Accordingly, it is arguable that many asylum seekers who received such a notice and are affected by the ‘pause’ in inadmissibility decisions were not accepted by a safe third country within six months of their asylum claim having been registered in the UK. This is because Rwanda was not safe in 2022 (or 2023), even if it is legally declared to be safe once the Bill passes.

In these cases it can be argued that the notice of intent should be withdrawn, the inadmissibility process discontinued and asylum claim admitted for consideration in the UK. Media reports indicate that the Home Office has been withdrawing at least some of these notices.

Evidence that a person is unsuitable to be sent to Rwanda

If the Home Office has already been provided with evidence explaining why an asylum seeker should not be removed to Rwanda and why their asylum claim should be admitted to the UK in response to the notice of intent, then this evidence as well as any other relevant circumstances should be emphasised to the Home Office’s Third Country Unit or as part of pre-action correspondence.

Relevant evidence can include medical or psychological evidence of asylum seeker’s mental or physical ill-health, disabilities, cognitive impairment, and/or evidence showing strong links to the UK (family and/or private life in the UK). Asylum seekers who disclose indicators of being potential victims of human trafficking / modern slavery should be referred to a first responder for referral into the national referral mechanism so that their trafficking claims can be considered. A recognition that a person is a victim of trafficking might amount to compelling circumstances.

Disclosure should be sought on what, if any, requests have been made to Rwanda

Practitioners should seek disclosure from the Home Office of copies of any requests sent by the UK authorities to Rwanda and any acceptance received from Rwanda. This is relevant to whether these have happened on the date claimed by the Home Office, or at all. This is particularly important if there are inconsistencies as to dates when Rwanda is reported by the Home Office to have accepted transfer of an asylum seeker.

Rwanda cannot accept everyone in the inadmissibility process

Another highly relevant factor in assessing the reasonableness of delay and bringing a successful challenge is Rwanda’s capacity to accept any significant number of asylum seekers. This includes whether the lack of capacity could create an additional lengthy delay, thereby unreasonably prolonging the situation of already lengthy limbo that clients find themselves in. It is unclear whether Rwanda can cope with the large numbers of asylum claimants contemplated for removal there by the Home Office: the evidence before the Divisional Court was that the physical capacity for housing asylum seekers in Rwanda was limited to 100.

OpenDemocracy revealed in January 2024 that many homes where the Home Office claimed asylum seekers removed from the UK to Rwanda would be accommodated have reportedly already been sold.

The prospects of an individual’s removal to Rwanda, imminently or within a reasonable period, is a valid consideration in assessing whether the delay in admitting their claim to the UK system is lawful.

Use paragraph 333A of the immigration rules to ask for an update

Lastly, claimants served with notices of intent whose asylum applications were registered more than six months ago must be provided with information on the time frame within which the decision on their asylum application is to be expected where they have made a specific written request for an update. This obligation is set out in paragraph 333A of the immigration rules, which also states that asylum decisions should be made ‘as soon as possible’. Paragraph 333A applies to all registered asylum claims, including those that the Home Office might be considering for inadmissibility.

Conclusion

It is possible to challenge delays in determining admissibility of asylum claims by way of judicial review, seek a decision to discontinue inadmissibility process and ask the Home Secretary to admit the claim for substantive consideration in the UK with a set time frame for asylum decision.

These challenges will have the best prospect of success where evidence of compelling circumstances has been obtained and put before the Home Office, although do note that the requirement for circumstances to be ‘compelling’ is only made explicit about the paused cases.

For cases where Rwanda is reported to have accepted transfer at a time when it was not a safe country, it can be argued that there was no acceptance by a safe third country within the time frames specified in the inadmissibility guidance. Arguments can also be made about the lack of anywhere to send those in the inadmissibility process, particularly due to Rwanda’s capacity to accept people.

The current delays in reaching admissibility decisions are likely to be unreasonable, unlawful, contrary to the published policy including the overriding purpose of not creating a lengthy limbo position and in breach of claimants’ rights protected under Article 8 ECHR. In many inadmissibility challenges the only lawful decision open to the Home Office will be to discontinue inadmissibility and admit the claim.

With the ongoing failure of the Home Office to set out how and when these cases will be processed, and the Safety of Rwanda Bill unable to resolve the inadmissibility backlog, many individual challenges are to be expected shortly.