RWA0004 Dr Amanda Spalding

Overview:

The vagueness around this policy, especially the refusal to publish the criteria which those removed to Rwanda will be assessed on, makes it difficult to legally evaluate it at present. It seems likely however, that there will be significant difficulties with appropriately safeguarding vulnerable persons and ensuring they are not inappropriately routed to Rwanda. This may lead to legal issues under international law such as Article 3 of the ECHR and plausibly to conflicts with national laws where the Home Office has policy positions on the safeguarding of vulnerable persons.

1.       Introduction

1.1.                      I am Dr Amanda Spalding, a Lecturer in Law at the University of Sheffield and my specialisations include UK immigration law and its relationship to human rights. I have published numerous articles in peer-reviewed journals such as the Modern Law Review and the Journal of Immigration, Asylum and Nationality Law and have a book on immigration law under contract with Hart Publishing. I am submitting the below evidence to highlight concerns about how determining the legality of the Rwanda scheme is very difficult without published criteria as to who will be sent to Rwanda and that the Home Office track record on fast decision making, such as the detained fast track asylum system, indicate that this scheme will need proper scrutiny to ensure the protection of vulnerable people.

1.2.                      In section 5, paragraph 5.1 the MoU states: “In order to expedite the process of relocation to Rwanda in a timely manner, the United Kingdom will be responsible for the initial screening of asylum seekers, before relocation to Rwanda occurs in accordance with this Arrangement. This process will start without delay after the prospective relocated person arrives in the United Kingdom and has come to the attention of the United Kingdom.”

1.3.                      The MoU does not set out how the UK will determine which asylum seekers are sent to Rwanda for processing and which are not and the Home Office is refusing to release the criteria at present.[1] The process of determining whether someone may be moved to Rwanda is expected to be 7 days long. [2] The UK does not have a very good history of successfully screening applicants for suitable asylum processes and especially not doing so quickly. The case-law on a different decision-making process, the detained fast track asylum system (DFT) that operated in various formats in the UK until 2016, demonstrates this (see below for an overview of this system and relevant case-law).

2. Overview of the Detained Fast Track Asylum System

2.1.                      The DFT was introduced in March 2000 in Oakington Immigration Removal Centre by the Labour Government as way to deal with the increasing number of asylum applications.[3]The DFT procedure was used to decide applications which Home Office officials think can be determined quickly. This decision was taken as part of a screening interview in the initial stages of the asylum process. A decision to place an applicant in the DFT used be based on a list of ‘safe’ countries of origin but in its final years of operation was based on an immigration officer’s assessment of whether a ‘quick decision’ may be made.[4] A ‘quick decision’ was thought to be possible where, for example, no further information such as complex legal advice or corroborative evidence is needed. Adults of any nationality could be placed in the DFT.[5] It was a procedure designed to deal with asylum applications as quickly as possible. This accelerated procedure took place completely in detention as this meant the applicants were ‘readily available’[6] to participate.

2.2.                      Over its years of operation, the DFT attracted a lot of criticism. The initial screening process for routing applicants into the DFT was described as eliciting ‘no or virtually no information about the substance of the claim’ by the Immigration Law Practitioners Association.[7] This view is backed up by observations of the Chief Inspector of the Border Agency in a report in 2011: ‘screening was not designed to elicit the most relevant information for DFT assessments to be made.’[8] This led to many vulnerable people such as victims of torture or sexual abuse being inappropriately routed into the DFT process.[9]

2.3.                      There were a series of legal challenges[10] to this process culminating in R (JM and others) and IK, Y, PU[11] They showed that the DFT safeguards were absolutely not working. This was demonstrated by evidence from the Helen Bamber Foundation, a UK human rights charity who works with vulnerable people who may have suffered torture, domestic abuse, trafficking and other types of violence. Their evidence showed that from the 5 January 2015 to the 31 May 2015, 200 of the 304 referrals they received from the DFT showed indicators of torture, ill-treatment or other kinds of vulnerability meaning they should not have been placed in the DFT in the first place.[12] Moreover 69 of the 200 had rule 35 reports; these are a medical report from a medical practitioner in the detention centre that the person may be a victim of torture or have other indicators of vulnerability making them unsuitable for fast track. The fact that the r 35 mechanism was not working appeared to be based on their quick rejection by immigration official. This may be due to a culture of disbelief. The phrase ‘culture of disbelief’ refers to the ‘tendency of those evaluating applicants to start from the assumption that the applicant is not telling the truth.’[13] In the Shaw Review, evidence of this was found across the immigration services including in healthcare.[14] This approach, coupled with a lack of understanding of the asylum process as investigative and not adversarial[15] and of the role of the applicant’s credibility[16] could be responsible for large numbers of inappropriate allocations to the DFT. A lack of credibility was often cited as a reason to refuse to remove an asylum seeker making allegations of torture or other abuse from the system but ‘cogent reasons for this disbelief were often not offered.’[17] The UNHCR has found that asylum decision-makers ‘frequently use speculative arguments to undermine credibility.’[18] There is also a lack of understanding of the effects of trauma which can lead to memory loss or inconsistent accounts.[19] Likewise delayed revelations of torture, rape and other forms of abuse are viewed as highly suspect[20] even though this is obviously a painful and distressing event to recount for the applicant and one which they may not feel able to discuss with a person who they have no relationship with. These issues are likely to be present again in the Rwanda scheme.

3. Safeguarding Vulnerable Persons and the Rwanda-UK MoU

3.1.                      The problems with effectively safeguarding vulnerable people and ensuring they are not incorrectly routed seems likely to be an issue for the Rwanda scheme. The UK government has not set down any clear criteria as to who will be sent to Rwanda for processing and who will not.[21] They have indicated an intention to protect vulnerable people but it is not clear who exactly this is.[22] Even where there is some guidance such as on unaccompanied children, there are already issues. Under the Home Office’s current Inadmissibility guidance, Unaccompanied Asylum-Seeking Children are not eligible for transfer to a third safe country, this would include relocation to Rwanda.[23] However correctly determining age is already proving to be a significant factor that will test the robustness of safeguarding against inappropriate cases being sent to Rwanda. There have already been reports of a failure to correctly identify such children.[24]

3.2.                      The Equality Impact Assessment [25] carried out by the Home Office itself indicates that there are certain groups who will be vulnerable to poor treatment in Rwanda such as some LGBTQI+ people[26]and states that there is “evidence that transgender persons who are likely to be more visible than others in this group may face greater risk of ill-treatment such as arbitrary arrests and detention as well as degrading treatment.”[27] Likewise, there are concerns that “there are risks of sexual and gender-based violence (SGBV) against women and children”[28] especially domestic violence. All of these would potentially result in claims of violations of Article 3 of the ECHR [29](the right to be free from torture, inhumane or degrading treatment) if assessment methods are not robust and inappropriate cases are sent to Rwanda for processing.

3.3.                      Despite this, all the Home Office guidance is vague on the point of who will be eligible to be sent to Rwanda and who will not: “Individual vulnerabilities will be taken into consideration as part of a case-by-case assessment of eligibility for relocation. This mitigation ensures that no one will be transferred to Rwanda where it would result in them being unsafe.”[30] There has also been some indication given that this process may not be very robust as in a Home Office representative told the Home Affairs Committee:“The task that an asylum caseworker has to do, of absorbing country guidance and understanding individual circumstances, is not part of the decision making process that a caseworker for the Rwanda scheme has to go through. It is not looking at the context of the individual’s home country; that has been handled through the inadmissibility process. It is a much more binary set of questions, a set of criteria, that are being applied by the caseworkers who are reaching judgments through the Rwanda scheme.”[31] Likewise, extremely vulnerable persons such as trafficking victims or victims of torture are apparently already being routed into detention in preparation for Rwanda.[32]

3.4.                      Given the failures of the detained fast track system to adequately safeguard vulnerable people, it is recommended that serious scrutiny of any proposed decision-making process is undertaken to determine whether the issues in the DFT process are likely to be repeated here, especially given that the plan is to make a decision within a 7-day period.

4. Other Issues

4.1.                      With only vague information as to how this scheme will operate, it is difficult to go any deeper into the legality of it. As noted above, the Home Office has refused to release any criteria that will be used to determine who and who will not be eligible to be removed to Rwanda. They justify this on the grounds that releasing the criteria may give people smugglers information that allows them to adapt their business model around these criteria. This approach was seriously criticised by some members in the recent Home Affairs Committee as making it very difficult to evaluate or understand the policy.[33]

4.2.                      We should be very concerned about the lack of clarity around how this policy will operate and that serious scrutiny is needed not only of the safeguarding process but also the day to day operation of this policy. Indeed, evidence from the Home Affairs Committee on the Rwanda-UK MoU already points to significant issues: “Medical Justice explained to me that it was involved with 11 people who were given directions for the flight that was eventually abandoned. The first person who got in touch with them did so because he had concerns about an exacerbation of his asthma. He was five days into a seven-day period of notice and he did not have the first clue that he was being removed to Rwanda. His notice of intention to remove had been served to him in English. He didn’t speak very much English, as he was only a few days off the boat. It was only because he happened to fax that notice of intention to Medical Justice that he became aware that he was on the brink of being removed to Rwanda, and others followed afterwards”[34]

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