Rwanda – all is not lost: Asylum Aid’s arguments on why the Home Office must still consider the real risk of people being sent into danger from Rwanda

Rwanda – all is not lost: This blog explains why Asylum Aid continues to believe that the Home Office’s interpretation of the Safety of Rwanda Act as excluding consideration of “onward removal” (where someone is removed from Rwanda) claims is wrong and that this guidance is therefore unlawful. We believe that properly interpreted, the Act permits consideration of such claims, provided that they are based on “compelling evidence relating specifically to the person’s particular individual circumstances (rather than on the grounds that the Republic of Rwanda is not a safe country in general)” as required by section 4(1) of the Act.

On 2 May 2024, Asylum Aid sent a pre-action protocol letter to the Home Office regarding the Safety of Rwanda guidance published on 29 April 2024. In the letter we set out two grounds on which we believe that the Home Office’s guidance was inconsistent with section 4 of the Safety of Rwanda (Asylum and Immigration) Act 2024.

On 9 May 2024, the Home Office responded to our letter, conceding the first of our grounds and agreeing to amend the guidance. Amended guidance was published on 13 May 2024 reflecting this concession.

However, the Home Office disagreed with our second ground, which concerned whether decision makers deciding whether a person may be removed to Rwanda can consider the risk of onward removal from Rwanda. Its guidance on this issue is therefore unamended. In particular, that guidance continues to instruct decision makers that they “must not consider claims on the basis that Rwanda will or may remove or send the person in question to an unsafe state in breach of their ECHR rights”.

This issue is of critical importance for decision-making under the Safety of Rwanda Act. It will affect the work that is required to be done when advising individuals who are facing possible removal to Rwanda and therefore the time that is needed for a fair procedure. It will determine the ability of the UK courts to afford an effective remedy to those who fear indirect refoulement if they are sent to Rwanda. It is central to the lawfulness of decisions on admissibility, human rights claims, removal and, where applicable, detention.

General presumption of safety of Rwanda: section 2 of the Safety of Rwanda Act

As is well known, the background to the Safety of Rwanda Act is the decision of the Supreme Court in AAA (Syria) & Others in November 2023, holding that removal of asylum seekers to Rwanda under the Migration and Economic Development Partnership would be unlawful because of the real risk that they would be refouled from Rwanda. This real risk was based on evidence, including from UNCHR, of systemic deficiencies in the Rwandan asylum system.

In response, the UK Government agreed a new Treaty with the Rwandan government and asked Parliament to adopt what is now the Safety of Rwanda Act, which states that its purpose is to “give effect to the judgment of Parliament that the Republic of Rwanda is a safe country” (s1(2)(b)). To that end, section 2(1) of the Act requires that in decisions to which it applies, all decision makers, including all courts and tribunals (s2(2)(b) and s2(3)-(5)), should “conclusively treat the Republic of Rwanda as a safe country”.

A “safe country” is defined as including a country “from which a person removed to that country will not be removed or sent to another country in contravention of any international law” (s1(5)(b)(i)). Section 3 of the Act then disapplies key parts of the Human Rights Act, including section 3 (interpretive duty) (for the Act as a whole), and section 6 (duty of public authority to act compatibly with Convention rights), to decisions taken on the basis of the  provisions of section 2(1).

Consideration of compelling evidence in individual cases: section 4(1)

However Parliament included an important safeguard against injustice and breaches of Convention rights in section 4(1) of the Safety of Rwanda Act. This provides that:

Section 2 does not prevent – (a) the Secretary of State or an immigration officer from deciding… whether the Republic of Rwanda is a safe country for the person in question, based on compelling evidence relating specifically to the person’s particular individual circumstances (rather than on the grounds that the Republic of Rwanda is not a safe country in general).

Section 4(1)(b) allows courts or tribunals to consider reviews or appeals brought on the grounds that Rwanda “is not a safe country for the person question”, based on compelling evidence.

Importantly, when taking decisions under section 4(1), decision makers – including courts and tribunals – are bound to act compatibly with Convention rights as section 6 of the Human Rights Act is not disapplied in relation to section 4(1) decisions.

For pre-Illegal Migration Act cases (where asylum was claimed before 28 June 2022), it is still possible for a court or tribunal to grant interim relief when considering an appeal or review against such a decision, under s4(1)(b), but only if it is satisfied “that the person would… face a real, imminent and foreseeable risk of serious and irreversible harm if removed to the Republic of Rwanda” (s4(4)). “Serious and irreversible harm” for this purpose explicitly includes a risk of onward removal to another country or territory where the person would face a real, imminent and foreseeable risk of serious harm (s4(5) incorporating the definition in s39(4)(e) of the Illegal Migration Act 2023).

So why does the Home Office say indirect refoulement is excluded?

The Home Office relies on section 4(2) of the Safety of Rwanda Act which provides that s4(1) “does not permit a decision-maker to consider any matter, claim or complaint to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of any of its international obligations (including in particular its obligations under the Refugee Convention).”  

The Home Office says that section 4(2) shows that Parliament clearly excluded consideration of the risk of onward refoulement from section 4(1). That is why it has instructed decision-makers in its Safety of Rwanda guidance that they “must not” consider claims based on the risk of Rwanda sending the person to another country in breach of their Convention rights.

Why does Asylum Aid disagree?

Section 4(2) is, we believe, a very carefully drafted comity clause. It is there to make clear the position, well-established in domestic case law, that the decision-maker cannot consider a person’s claim that another country will not comply with its international law obligations.

Rather the question for our courts is whether removal to Rwanda would breach the UK’s obligations, including because of the risk that a person sent to Rwanda would end up being refouled to their country of origin or to another country where they are at risk of serious human rights violations, in breach of the Human Rights Act, the Refugee Convention and other international law binding on the UK.

There is nothing in section 4(2) (or otherwise in the Safety of Rwanda Act) that prevents decision makers or our courts from considering, under a claim within section 4(1), the issue of whether removal to Rwanda would breach the UK’s obligations under the Human Rights Act (in particular, to respect Article 3 rights), because of the risk of onward refoulement.

On the contrary, the fact that section 6 of the Human Rights Act applies to section 4(1) decisions points to the need to consider all risks arising from removal: otherwise the decision in the individual’s case, and the Act itself, would be incompatible with Convention rights. So too does the fact that the definition of serious and irreversible harm for the purposes of interim relief under s4(3) includes onward removal claims under s39(4)(e) Illegal Migration Act 2023.

What does this mean in practice?

If Asylum Aid is right, then the Home Office – and courts and tribunals – will be permitted (indeed, under the Human Rights Act, required) to consider compelling evidence relating specifically to a person’s particular individual circumstances which shows that Rwanda would not be a safe country for that person because there is a real risk that they would be sent from Rwanda to another country where they would be at real risk of serious harm.

It means that while an individual cannot simply assert that Rwanda is generally unsafe for asylum seekers, if they put forward compelling evidence relating to their particular individual circumstances that they would face a real risk of persecution, torture, or even death in their country of origin, and that there is a real risk of refoulement from Rwanda, that claim must be considered by the Home Office. And if refused, by the courts or tribunals on appeal or review – who will also be able to grant interim relief under section 4(3)-(5) if satisfied that there is a real, imminent and foreseeable risk of onward removal.

Section 4(1) claims need to be considered both in relation to relevant legislative criteria (e.g. section 80B(4) of the Nationality, Immigration and Asylum Act 2002 which requires consideration of whether the proposed third country of removal is ‘safe’) and as part of consideration of the individual’s human rights claim.  This has been accepted in version 2 of the Safety of Rwanda Guidance.

However, the guidance currently limits consideration of compelling evidence to claims relating to conditions in Rwanda, including the risk of persecution or serious harm in Rwanda and whether a person will be able to access the asylum procedure and be recognized as a refugee. It excludes consideration of the risk of refoulement from Rwanda, in any circumstances.

For the reasons explained above, Asylum Aid believes that this distinction is incompatible with the Safety of Rwanda Act and the Human Rights Act. We intend to bring judicial review proceedings challenging the guidance on this basis because we are concerned about the risk of unlawful decision making, particularly for those who are unable to access effective legal representation in time. Clearly no decisions should be being taken on the basis of the Home Office’s interpretation until the courts have considered Asylum Aid’s claim.

It is important in this context to remember that the requirement to provide compelling evidence relating to the person’s particular individual circumstances does not exclude consideration of evidence which also shows risk to other people. This was a key finding in Asylum Aid’s case in the earlier Rwanda litigation – the Court of Appeal accepted our argument that reliance on evidence of general application but which shows that individuals are at personal risk, is the ordinary way in which asylum claims based on particular risk to individuals are advanced: see R (EM (Eritrea)) v SSHD [2014] AC 1321 at para 70 and R (AAA (Syria) & others) v SSHD (CA) at para 417.

Therefore Asylum Aid believes that section 4(1) decisions must encompass consideration of any risk of onward removal from Rwanda to a country in respect of which there is compelling evidence relating specifically to their particular individual circumstances showing that the person in question will be at serious risk of harm.

This means that those representing people at risk of removal to Rwanda will need to investigate, gather and present compelling evidence that their client is at serious and individual risk of harm i.e. to present their underlying asylum claim for consideration by the Home Office. It will not be enough to argue that Rwanda is generally unsafe– you will need to present compelling evidence that for your client, removal to Rwanda would put them at real risk of refoulement to a place where they are at risk of death, persecution torture or other forms of serious harm.

Practitioners will want to clearly set out the interpretation of the Act which allows consideration of onward removal claims, as described above, when making representations to the Home Office putting forward section 4(1) claims or seeking extensions of time to prepare such claims.

Keeping practitioners up to date on developments

Asylum Aid is happy to share the text of our pre-action letter which includes the interpretation with practitioners to assist – please email me on alison.pickup@asylumaid.org.uk to request a copy. We also encourage participation in the Refugee Legal Group which we convene. The Refugee Legal Group is a closed and confidential discussion group for OISC advisers, solicitors and barristers. It is not open to those who advise or represent the Home Office or to the judiciary.

Those who are not already members can email RLG@asylumaid.org.uk to request to be added – you will need to provide a work email (rather than a personal one) as verification of your professional status. We will provide updates on the progress of our litigation through the Refugee Legal Group.