Government officials told Priti Patel not to do asylum deal with Rwanda, court hears
Lawyers acting for asylum seekers from countries including Syria and Iraq, as well as charities and Border Force staff, have been sent thousands of documents detailing internal consideration of the policy – which they argue to be unlawful.
Documents presented to a High Court hearing on Tuesday said that Rwanda was “initially excluded from the shortlist of potential partner countries for [ Priti Patel ’s] proposed immigration policy on human rights grounds”.
They show that on 10 February 2021, the UK High Commissioner to Rwanda indicated that the country “should not be pursued as an option for the planned migration policy”.
The reasons given included that it “has been accused of recruiting refugees to conduct armed operations in neighbouring countries”, has a “poor human rights record regardless of the conventions it has signed up to” and has been criticised by the UK for extrajudicial killings, deaths in custody, enforced disappearances, torture and crackdowns on anyone critical of the regime.
Further advice against any agreement with Rwanda was issued by officials in the Foreign Office, including a 20 May 2021 memo saying it “continue[d] to advise No 10 against engagement” and suggesting that it does not have a “functioning asylum system in compliance with Refugee Convention obligations”.
One of several other recommendations not to consider a deal with Rwanda, on 18 February 2021, rated the country amber/red for human rights, its asylum system and political feasibility, and questioned if “mitigation measures exist that would provide a respectable case against legal challenge”.
Official government guidance, which was published after the deal was announced in April, found Rwanda to be a safe country but the claimants revealed that the Rwandan government itself had been sent a draft to review.
A Home Office memo dated 6 May this year said it had “shared the last draft of the country policy and information note and annexes with the government of Rwanda”, which had “flagged a number of points and concerns on the evidence base in relation to human rights in Rwanda”.
The memo, reproduced in documents presented to the High Court, said the complaint was “worked through” by Home Office officials and that “further work is being done … to reflect comments from Rwanda on the draft we shared”.
The claimants’ legal team, led by Raza Hussain QC, said that previous correspondence with the Home Office had suggested that the assessment of Rwanda was impartial and objective.
“Those assertions are difficult to reconcile with a scenario whereby the Rwandan government was given the opportunity to comment on the final draft, and to suggest amendments to passages concerning its own human rights record,” their written argument added.
Lawyers said the Home Office’s legal team had made several unexplained redactions to some documents, including those covering Rwanda’s previous asylum deal with Israel, which was ruled illegal by the Israeli Supreme Court.
Some passages were restored after complaints but a letter from the home secretary’s representatives claimed the government’s relationship with Rwanda was sensitive, adding: “Whilst we work closely with them on many international priorities (free trade, climate change, development etc) we are also a ‘critical friend’ in raising human rights violations and the lack of political space in Rwanda, as well as on the official narrative of the 1994 genocide.
“An asylum processing agreement could potentially place us in an awkward situation if the government threatened to suspend it if we did not comply with their expectations in these areas.”
The claimant’s submissions to the High Court show numerous memos flying around the Foriegn Office over the agreement, with many raising concerns about Rwanda’s human rights record and “concerns over violations for political opposition or those who oppose president Paul Kagame”.
On 26 May 2021, an internal email within the Foreign Office indicated that the then-foreign secretary Dominic Raab had said the test should be “whether, with financial support, the host country could get up to European Convention of Human Rights standards”.
In March last year, Foreign Office officials sent a note to Mr Raab warning that if Rwanda was selected, the government would need to “constrain UK positions on Rwanda’s human rights record, and to absorb resulting criticism” from parliament and charities.
Documents revealed on Tuesday indicated that Home Office officials visited Rwanda prior to the creation of the memorandum of understanding.
A memo from 3 March stated that the country “depends heavily” on the UN Refugee Agency (UNHCR) and aid agencies for delivering their domestic asylum system and that there was “no independent verification” for Kigali’s claims over its capabilities.
But in the same document, the Home Office expressed reluctance to engage with the UNHCR on the basis that it would “give them more time to organise their campaign against these measures when they are announced”.
The UNHCR has intervened in the ongoing legal challenge and voiced its opposition to the plan, while accusing the British government of misrepresenting its position to suggest it was supportive in early statements.
An internal government memo from 12 April, a day before the memorandum of understanding was signed, said the agreement was “unenforceable, consisting in part of upfront payments, meaning fraud risk is very high”.
It added: “There is limited evidence about whether these proposals will be a sufficient deterrent for those seeking to enter the UK illegally. If [legally] challenged, there is a risk we will not be able to sufficiently demonstrate ‘objectivity’, based on rigorous analysis of the evidence.
“We have therefore assessed this element of the policy as red [ie in terms of risk level].”
A statement from the Home Office’s asylum processing department the following day suggested that initial flights to Rwanda would be used to “fine tune the approach to transfers out of the UK and allow Rwanda to further test their processes”.
The claimants’ lawyers said it suggested that the failed 14 June flight, which was grounded following legal challenges, “was to ‘test’ Rwanda’s refugee status determination processes, rather than being organised in circumstances where the home secretary had lawfully satisfied herself that those processes were already safe.”
Written arguments from the Home Office legal team defended its “extensive” disclosure of documents and said the process was ongoing but that the full judicial review of the Rwanda policy should still be held on 5 September.
It said the policy aimed “to deter the making of dangerous and unnecessary journeys from safe third countries to the UK”.
It said five of the claimants threatened with removal to Rwanda had been freed from immigration detention after launching separate legal action over unlawful detention, and another man has absconded.
Five claimants have also been put in the National Referral Mechanism process for potential trafficking and modern slavery victims, and been told they have “reasonable grounds” for claims.
The hearing was to decide the next steps in the legal challenge, brought by several asylum seekers facing transfer to Rwanda, Detention Action, Care4Calais and the PCS union.
Lord Justice Lewis and Mr Justice Swift said they would give their judgment on dates and legal directions for the full judicial review on Wednesday morning.