The government’s first controversial flight taking asylum seekers to Rwanda is set to go ahead on Tuesday after a legal bid to block it failed.
Home Secretary Priti Patel scored a victory in the High Court on Friday when a judge concluded it was in her power to fly asylum seekers to the east African state.
A last-ditch challenge was mounted in the Court of Appeal on Monday, as refugee charities, a union, and one of the people to be sent to east Africa argued the policy is unlawful.
But three judges ultimately dismissed the bid, and the first flight is scheduled to depart on Tuesday.
The decision sparked protests outside the Home Office in London. Filippo Grandi, the UN. high commissioner for refugees, lashed out against the policy, describing it as "all wrong."
Delivering the decision on Monday, Lord Justice Singh said the original judge, Mr Justice Swift, had delivered an “impressive” judgment and had reached conclusions that were “reasonable open to him on the material before him”.
“We don’t accept it is for this court to go behind the judge’s assessment of the evidence”, he said.
“Although he had limited time to consider the evidence, he had the advantage of seeing it all and had a day’s hearing on Friday.”
The judge noted that the Rwanda policy would be under intense scrutiny as it takes effect, with a full hearing of its legality due at the end of July.
At court, lawyers led by Raza Husain QC argued that a hurried implementation of the Rwanda policy could have lasting financial implications if anyone is wrongly flown to Rwanda and has to be brought back to the UK.
“If it is possible to bring the individuals back (which it may not be), this will have very significant administrative cost”, they said in written submissions.
“Every individual who has been forcibly removed is also likely to have significant claims for damages in tort and under the Human Rights Act 1998.
“This potential cost to the taxpayer, in itself outweighs any inconvenience of a 6-week delay pending removal pending trial.”
The Home Secretary vowed to press ahead with the flights, with a full trial of the legality of the policy set for the end of July.
It comes despite widespread criticism.
Migrant advocacy groups have attacked the policy as inhumane and illegal ever since April, when Boris Johnson announced the plan as way to deter people from risking their lives by paying smugglers to take them to Britain in leaky inflatable boats.
While Prince Charles reportedly privately described the Rwanda policy as "appalling”.
When Tuesday’s flight was first organised, around 100 people were notified of their impending removal. But in the course of legal wrangling, that number has reduced down to just 11.
The challenge was brought by a potential passenger, together with Border Force workers’ union PCU and activist groups Detention Action and Care4Calais.
They say the Home Secretary decision to push ahead with the Rwandan policy was based on a “complete misunderstanding” of the views of the UN’s refugee agency, UNHCR.
It is said a “safe third county” must have an adequate refugee process, without evidence of forcible return – known as refoulement - to their country of origin where they could face persecution.
It is said the Minister was told in April of three cases of refoulement involving Rwanda, and she is accused of “ignoring” them.
They argue there is a “very clearly demonstrated risk of onward refoulement from Rwanda”, arguing Ms Patel accepted there were “issues raised” which the government “will want clear assurances on”, but there is no evidence of a response to the concerns.
The Home Office is defending the policy, arguing there is “a strong public interest in deterring unsafe, unnecessary and illegal journeys from safe third countries to the UK by asylum seekers”.
“To achieve that aim, the Home Secretary looked to form a partnership with another safe third country to which asylum seekers, who have made unsafe, unnecessary and illegal journeys to the UK, could safely be relocated”, argued its lawyers, led by Rory Dunlop QC.
The Home Office sent officials to Rwanda to assess the country’s asylum system and acknowledged the concerns from UNHCR, but argues each removal will be determined on a case-by-case basis.
It argued the High Court judge had not made any errors of law, that the Memorandum of Understanding on which the policy is based allows for the UK courts to order the return of people if they have been wrongly sent to Rwanda.
The government argues the risk of refoulement before the full hearing of the challenge is “very small” and may just be “speculation”.
Mr Dunlop said if the court grants an injunction today, there would be “prejudice to the public interest” of breaking up the gangs who organise boats across the Channel. And he said any injunction would likely be replicated by many others who are being removed to Rwanda in the next six weeks.
In a second legal case underway in the High Court, charity Asylum Aid is challenging the fairness of the decision-making process.
Charlotte Kilroy QC, representing the charity, told the court in danger of removal are given up to two weeks to seek legal advice, make representations, and gather evidence for their case, before having a further five working days to mount a challenge.
Calling it an “extraordinarily abbreviated procedure”, she argued: “Individuals don’t have a fair opportunity to present their full case as to why they can’t be lawfully removed.”
Ms Kilroy argued the Home Secretary is also “deprived of information needed to make lawful decisions”, raising the spectre of a “high risk of unlawful and unsafe decisions”.
The Home Secretary is defending the lawfulness of its new procedure in the Rwanda removals policy, arguing those involved have the same access to legal advice and the courts as other asylum seekers who face deportation.
They “will have an appropriate opportunity to make representations and challenge the decision”, argued Edward Brown QC.
He said all 47 people who were originally set to be on tomorrow’s flight have had the chance to seek legal advice, with 36 people’s cases delayed after representations were made by their lawyers.
“There is no reason to think that the position will be otherwise going forward, either generally or (pertinently) pending a hearing in July 2022”, said Mr Brown, in written submissions.
The government is opposing a blanket ban on Rwanda flights, arguing individual detainees can bring forward bids for injunctions in their particular cases.
Permission to appeal to the Supreme Court was refused by the Court of Appeal.
