Court of Appeal rules Rwanda policy unlawful

It concluded the High Court’s judgment was wrong on key points and recognised deficiencies around the short-cut process but did not find the process unlawful. Asylum Aid, represented by Leigh Day, is carefully considering an appeal on this point. 
 
Asylum Aid appealed against a High Court ruling last year that the short-cut process to decide whether to remove asylum seekers to Rwanda under the Migration and Economic Development Partnership is fair.
 
Asylum Aid argued that process adopted by the Home Office was so unfair it rendered it unlawful. The charity said that the time limits of seven days for asylum seekers in detention to make representations on why they should not be sent to Rwanda, was obviously too short. Asylum Aid also argued people needed enough time to access lawyers.
 
In its ruling the Court of Appeal accepted that seven days would not be enough time in the majority of cases. It also accepted that the High Court was wrong to conclude that people did not need to be given enough time to make representations on why Rwanda was generally unsafe and wrong to say they did not need to have access to lawyers. But the court found the policy was not inherently unfair. It said the Home Secretary needed to publish a policy explaining that extensions should be granted where fairness required it. The court also commented that given the decision on safety, no removals would be proceeding for some time.
 
The Court of Appeal said: “There may be cases where a decision is fair even where there has been no access to legal assistance, but they are likely to be exceptional. As we have seen, the Secretary of State does not contend otherwise and it is her policy to ensure that legal assistance is indeed available.”
 
The Court of Appeal went on to say: “The evidence clearly establishes, and it is in any event obvious as a matter of common sense and experience, that in many cases it will indeed be impossible for claimants to submit effective representations within seven days of receipt of a Notice of Intent, even if they have ready access to legal assistance and only wish to make representations on matters specific to their particular circumstances.”
 
But it went on to say that this will not necessarily be impossible in every case.
 
The court therefore found that the focus needed to be on the Secretary of State’s policy of flexibility. 

It found that it is not good enough that that policy is not formally published in the form of guidance to caseworkers nor referred to in the Notice of Intent.
 
It said: “Claimants and their advisers need to know that the seven-day timetable can be extended where that is shown to be necessary in the interests of fairness. It is important that the guidance makes it clear that the seven-day period should not be treated as a norm and that the grant of extensions is not necessarily exceptional. It may be that if experience shows that extensions are required in a very large number of cases, the Secretary of State might wish to consider providing for a rather longer base-line period; but that must be a matter for her.”