Rwanda hearing next week

Is it lawful for the United Kingdom to send asylum-seekers to a country 4,000 miles away for their claims to be assessed? That’s the question the High Court will consider at a hearing starting next Monday.

In April, the home secretary Priti Patel signed an agreement with the government of Rwanda under which some migrants arriving in Britain would be flown to the African country and have their asylum claims processed there. Those granted asylum by Rwanda will not be eligible to return to the UK.

The Home Office began issuing formal removal direction letters at the beginning of June and preparations were made for the first flights to leave. At that point, to nobody’s surprise, a number of applications were made for permission to seek judicial review.

Some 15 individuals, a trade union that represents Border Force officials and three campaign groups1 are now challenging the home secretary’s decision. It’s expected that Patel will be replaced as home secretary next week but government policy is not likely to change and the hearing will not be affected.

The story so far

Legal proceedings were issued on 8 June and the High Court was first asked to decide whether the balance of convenience favoured sending the claimants to Rwanda or letting them remain in the UK while their cases were before the courts.

Mr Justice Swift concluded on 10 June that the importance of Patel being able to implement her policy outweighed the problems that asylum-seekers might suffer if they were removed. His judgment was upheld by the Court of Appeal and the UK Supreme Court. However, the European Court of Human Rights effectively blocked the migrants’ removal on the understanding that a full hearing would open on 19 July.

Two weeks earlier, though, Patel had issued new decision letters to some individual claimants. Their lawyers said they would not have enough time to amend their grounds of challenge if deficiencies were identified in these letters. The claimants asked for more time. On 20 July, the High Court adjourned the proceedings until 5 September. A request for a longer adjournment was refused.

The High Court also decided that there should be a separate hearing to consider a “linked but conceptually separate case” brought by the charity Asylum Aid, whose trustees are chaired by the former president of the European Court of Human Rights Sir Nicolas Bratza.

That case will be heard on 10 and 11 October. The court’s ruling will be delivered at the same time as judgment in the cases to be heard next week. It follows that the outcome of next week’s hearing will not be known before the middle of October. Appeals are surely inevitable and the final decision — which may be months away — will then be considered by the European Court of Human Rights.

Next week

The hearing scheduled to begin on Monday is expected to continue for the whole of next week. The home secretary will be represented by both Lord Pannick QC and Sir James Eadie QC, who as first treasury counsel takes on the most demanding cases for the government. They will be backed by a large team of leading and junior counsel. It will be a “rolled-up” hearing, considering both permission and merits at the same time.

On the claimants’ side, eight QCs and 19 juniors were on the court record for the directions hearing last month. The UN high commissioner for refugees, who was given permission to make written submissions, had been represented at the same hearing by two QCs and four juniors.

At next week’s hearing, in the largest available courtroom, Lord Justice Lewis and Mr Justice Swift will be asked to consider specific issues relating to individual claimants in addition to various general issues. One that applies generally is a claim that removing migrants to Rwanda would be incompatible with article 3 of the human rights convention, which says that “no one shall be subjected to torture or inhuman or degrading treatment or punishment”.

Public interest immunity

In support of that argument, the claimants rely on two documents:

• A draft Home Office country policy information notice with comments added by an Africa specialist at the Foreign Office.

• A covering email sent to the chief scientific adviser at the Home Office by the Foreign Office official.

The foreign secretary Liz Truss has disclosed some parts of these documents but not all. Her proposed redactions covered:

• Five of the reviewer’s comments.

• Five extracts from the email.

The 10 individual redactions comprise at most a couple of sentences and, in one case, a small number of words.

The BBC reported that the official had said of Rwanda in the email:

There are state control, security, surveillance structures from the national level down… Political opposition is not tolerated and arbitrary detention, torture and even killings are accepted methods of enforcing control too.

Defendants are normally under a duty of candour to explain the facts and reasoning behind a decision under challenge. But disclosure is not ordered in judicial review proceedings unless it is needed to resolve a matter fairly and justly.

On 1 August, Truss asked the High Court for permission to withhold the 10 redacted passages on grounds of public interest immunity. In other words, she was arguing that the public interest in preserving the confidentiality of the passages outweighed the public interest in the fair administration of justice. Her application was opposed by the BBC, The Times and the Guardian.

Lord Justice Lewis held a hearing on 16 August and gave judgment the following day. Some of the redacted passages were largely in the public domain, he concluded, and could safely be disclosed. Others would damage the public interest and need not be revealed. To avoid prejudicing a potential appeal, the published judgment did not quote any of the passages concerned.

And the migrants?

Meanwhile, none of the migrants have been sent to Rwanda. Those who were held in detention have been released on bail.