The Rwanda bill loopholes lawyers are preparing to exploit

Politicians and peers have had their say on the Rwanda Bill. Now, lawyers are gearing up to put the legislation to the test after four months’ planning to keep asylum seekers off the planes being lined up by Rishi Sunak.

The controversial Bill was finally passed just before midnight on Monday after members of the House of Lords eventually abandoned efforts to amend the legislation, which declares the east African country “safe” in an attempt to head off legal challenges to asylum seekers being deported.

Rishi Sunak has promised that flights will be taking off within “10 to 12 weeks”. On Tuesday, Michael Tomlinson, the minister for countering illegal migration, told the BBC Radio 4 Today programme: “We have planes booked, we have an airfield booked.”

However, immigration lawyers who have been studying the legislation on behalf of scores of migrants since it was published in December believe individuals will be able to argue that factors such as severe mental health problems (including suicidal tendencies or post-traumatic stress disorder) or physical health difficulties (especially those requiring access to specialist medication) would render Rwanda an unsafe country for them and therefore they cannot be deported.

The passing of the Safety of Rwanda Bill into law will set in train a cat-and-mouse process involving Home Office officials and asylum lawyers, in which both sides expect tactics, timing and logistics to play as much of a role as the law.

Nicholas Hughes, whose central London-based firm Duncan Lewis has around 60 migrants on its books, said: “When the next flight comes around, we’ll do everything we can to ensure our clients aren’t on it.”

Such legal challenges would confirm the fears of Sunak’s critics within the Conservative party.

In December, Robert Jenrick, who resigned as immigration minister just hours after the Prime Minister tabled the Bill, described the legislation as “a triumph of hope over experience” that will lead to challenges in the courts. Labour has similarly argued that the Bill is an “extortionately expensive gimmick”.

Writing in The Telegraph last week, Jenrick said he remained concerned that the legislation “allows illegal migrants to make drawn-out individual appeals”, as well as failing to “carve out Human Rights Act sufficiently” or provide sufficient protections against “activist injunctions from the Strasbourg Court”. He added: “The holes in the Bill will mean that the immediate detention and swift removal of recent small boat arrivals will be vanishingly rare, if at all.”

It appears that lawyers seeking to keep migrants off the flights agree with at least some of Jenrick’s analysis. Several firms are now understood to be preparing challenges on behalf of individual asylum seekers.

Sunak claims to have lined up 150 judges and 25 courtrooms in order to fast-track the cases, although some scepticism has been expressed about this in legal circles given the strain the UK court system is already under.

The Rwanda Bill was Sunak’s response to a Supreme Court judgment last year which found that the Government’s policy of transferring migrants to Rwanda was unlawful, because there were substantial grounds to believe that they would face the risk of “refoulement”, or being transferred to their country of origin or another third country, from Rwanda.

However, in the words of one lawyer, the new Bill “washes over” this issue as it declares Rwanda a “safe” country – contrary to the finding of the Supreme Court. Legal arguments based on whether a deportee might be sent back to their home country are therefore off the table even if there are heightened risks for a specific individual.

Nevertheless, as Jenrick pointed out in December, the new Bill does allow legal challenges to deportation if an individual detainee faces a “real, imminent and foreseeable risk of serious irreversible harm if removed to Rwanda”. Those individuals served with a “notice of intent for removal to Rwanda” may therefore argue, in effect, that Rwanda is not a safe country for them. This would have to be based on compelling evidence relating to their specific individual circumstances.

As well as citing specific mental and physical health issues, prospective deportees may argue that being a victim of trafficking or an LGBTQI+ individual could result in them being at an increased risk of harm in Rwanda, lawyers believe. Homosexuality is not illegal in Rwanda, but Human Rights Watch and other organisations claim LGBTQI+ people face discrimination and abuse in the country.

Immigration lawyers will argue that many of the migrants who have arrived in the UK are likely to have compelling circumstances that would make Rwanda an unsafe country for them. “If you’re desperate enough to make the crossing from France to the UK in a small boat, you’re doing it for a reason,” says Hughes, a solicitor in Duncan Lewis’s public law and immigration department.

Duncan Lewis is among several firms to have worked on such cases in the past. Others include Leigh Day and Wilsons Solicitors, two other central-London based firms. The charity Asylum Aid has helped fund legal support for refugees, asylum seekers and migrants.

The Home Office is understood to have already identified a list of around 350 migrants that officials believe have weak claims to remain in the UK and are therefore least likely to submit successful legal challenges to their deportation.

These asylum seekers will receive a letter from the Home Office informing them they are due to be deported to Rwanda. In theory, those letters could be sent now. But immigration lawyers believe that, given the time frame laid out by Sunak of starting flights in 10-12 weeks’ time, the Home Office will hold off for a while yet.

Hughes says he expects the letters will be sent out en masse, making it harder for those individuals without legal representation to engage lawyers in time.

On receiving a letter, migrants will have just eight days to lodge an appeal. The Home Office then has an unspecified time frame to reject or accept the appeal. If rejected, the detainee will then have a further seven days to lodge a final appeal to an upper tribunal court, which will rule on the claim within 23 days.

Lawyers at Duncan Lewis represented around 60 people who were in the original cohort facing removal to Rwanda in June 2022. The first scheduled flight was grounded just as it was about to take off after the European Court of Human Rights issued a “Rule 39” order judging there to be a real risk of “serious and irreversible harm” to individuals.

However, the Rwanda Bill appears to close off this avenue to immigration lawyers, by giving ministers the power to ignore “Rule 39” orders – also known as “pyjama injunctions”, because of the late-night nature of some rulings – issued by the Strasbourg court.

Instead the focus will be on ensuring clients don’t even make it on to the flight’s manifest in the first place.