Blog post by Georgie Rea of the Garden Court Immigration & Public Law Teams.
Acting on instructions from Wilsons LLP, Duncan Lewis Solicitors and other key firms*, barristers at Garden Court Chambers** have successfully secured bail for all of their lay clients detained in recent months for intended removal to Rwanda.
Last year, barristers at Garden Court Chambers appeared before the Supreme Court, who, on 15 November 2023, unanimously agreed that the government's plan to send asylum seekers to Rwanda for their claims to be determined there, was unlawful. Undeterred, the Government doubled down on their efforts to ensure the plan could be realised, passing the Safety of Rwanda (Asylum and Immigration) Act 2024 on 25 April 2024, detaining over 2000 asylum seekers pursuant to Notices Of Intention to remove them to Rwanda. The individuals were detained en masse, despite the Home Office having made no decisions as to whether their asylum claims were in fact inadmissible and if removal to Rwanda was safe in their individual circumstances.
Meanwhile, on 2 May 2024, a claim for judicial review was lodged by FDA, one of the principal civil service unions, challenging guidance given on 29 April 2024 by the Cabinet Office to civil servants about their legal responsibilities, in relation to the implementation of removals to Rwanda.
Despite the Conservatives self-proclaimed victory in the “round up” of those potentially liable to removal, on 22 May 2024, Rishi Sunak announced he would be dissolving parliament and called a general election to be held on 4 July. In the FDA litigation, Mr Justice Chamberlain ordered the Cabinet Office to inform the court of the earliest date on which the Government intended to begin removals to Rwanda. The Prime Minister made clear that deportation flights to Rwanda will not leave before the general election.
Among those instructing barristers from Garden Court, Duncan Lewis Solicitors represented over 50 asylum seekers who were detained for removal to Rwanda. The announcement that the removals would not be taking place imminently encouraged detainees to apply for bail.
The recent bail victories are grounded in the Hardial Singh principles, confirming that immigration detention is lawful only if the purpose of detention can be achieved within a reasonable period. Section 12 of the Illegal Migration Act 2023 and the resulting guidance, Detention: General instructions, Version 3.0, Published for Home Office staff on 28 September 2023, have added a gloss to the Hardial Singh test, overturning the common law principle that it is for the courts to decide whether there is a reasonable or sufficient prospect of a person’s removal in a reasonable timescale.
In many of the bail hearings, the Home Office presenting officers were adamant that removal would still be taking place within a reasonable timeframe, despite the plan’s uncertain future in light of the general election. They asserted that under section 12 of the Illegal Migration Act 2023, it was for the Home Office to decide what was reasonable, and a removal date in July would be a reasonable timeframe.
In all of the cases presented by junior barristers from Garden Court Chambers, the First Tier Tribunal judges were not convinced that continued detention was reasonable, releasing all applicants on bail. Barristers noted that the tribunal judges were particularly impressed by applicants who had continued to report to the Home Office, despite warnings from within the community and in the media that people were being detained in the course of reporting. This, in the judges’ view, demonstrated the low risk of future absconding, and willingness of the applicants to comply with bail conditions.
The usual issues of conditions arose with surprising results. It was noted among representatives that conditions of electronic monitoring (for non-foreign national offenders) and financial condition supporters (FCS) were being imposed in more cases than was usual, despite the overall increase in grants of bail. Solicitors should therefore be prepared in any case, where possible, to gather the best evidence to demonstrate FCS means and influence over the applicant. Our barristers are available to provide advice on presenting the best evidence for the client upon instruction.
Finally, Garden Court Chambers are proud to provide pro-bono advocacy services to clients through Bail for Immigration Detainees (BID). The charity has recently published useful resources for those detained for those with pending asylum claims who are in detention and have received a Notice of Intent for Removal to Rwanda.
Notes
*Leigh Day, Wilsons LLP, Bail for Immigration Detainees (BiD), Brighton Housing Trust, Abbott Solicitors, JM Wilson Solicitors.
**Duran Seddon KC, Patrick Lewis, Gordon Lee, Adrian Berry, Colin Yeo, Alex Grigg, Raza Halim, David Sellwood, Matthew Ahluwalia, Ella Gunn, Steven Galliver-Andrew, Nadia O'Mara, Rehab Jaffer, Georgie Rea, Eva Doerr, Isaac Ricca-Richardson, Alex Schymyck, Josie Fathers, and pupils Abby Buttle & Christopher Lambert.
