Asylum seeker to make first legal challenge against Rwanda deportation

Following an interim hearing, High Court judge allows detainee’s lawyers to challenge ruling on the basis he is a torture victim

A Sudanese asylum seeker has become the first to be granted the right to mount a legal challenge against his deportation to Rwanda in a fresh threat to Rishi Sunak’s flagship policy.
The migrant, known only as SM and who claimed asylum in the UK more than two years ago, was among the first to be detained last month ahead of deportation to Rwanda on one of the first flights scheduled for next month.
A High Court judge has now allowed him to challenge his deportation on the basis that he is a torture victim who could be at real risk of serious and irreversible harm if deported to the east African country.
SM’s lawyers will also seek at the hearing, to take place from July 9-12, to quash Home Office guidance which directs officials not to consider the risk of “onward removal” to another country from Rwanda.
If the court rejects his individual claim, SM’s legal team will ask the court to rule that Mr Sunak’s Safety of Rwanda Act breaches the European Convention on Human Rights (ECHR).
It is the first legal challenge by an individual migrant against Mr Sunak’s new law.
The Act blocked “systemic” claims against the policy but allowed individuals to lodge appeals against their removal.
The case is still going ahead despite Sir Keir Starmer’s pledge that a Labour government would scrap the scheme from day one. If successful, it could pave the way for multiple claims by individual migrants.
Mr Justice Chamberlain, the judge overseeing the case, suggested other asylum seekers facing deportation might wish to apply to join SM’s claim to test the legality of the government’s scheme.
If SM’s case fails, his lawyers are likely to appeal to the Supreme Court which last Autumn ruled that the Rwanda policy was unlawful, forcing the Government to introduce new legislation to answer their criticisms.
It could ultimately end up before the European Court of Human Rights which issued the original Rule 39 injunction two years ago that grounded the first flight to Rwanda in June 2022.
Ministers have taken powers to ignore such injunctions but are embroiled in a legal challenge in the High Court by the top civil servants’ union, the FDA, which claims that Home Office staff could be in breach of international law if they obeyed ministers’ instructions to refuse the Rule 39 orders.
The FDA’s case is due to open in the High Court on Thursday with civil servants claiming they could be in violation of the civil service code – and open to possible prosecution – if they followed a minister’s demands to ignore an injunction from the European court banning a deportation.
Rakesh Singh, solicitor at Public Law Project, which is masterminding the legal action, said it had taken two years from SM’s arrival to his detention and being handed a notice of intent of removal to Rwanda.
“My client is challenging the delay in his case as well as the failure to give him a fair opportunity to respond to the notice of intent. Part of my client’s challenge may include asking the court to declare that parts of the Safety of Rwanda Act are incompatible with the ECHR,” said Mr Singh.
“Parliament passed the Act in such a way as to deliberately allow individuals to seek such a declaration of incompatibility and the Government has acknowledged this is the case.”