What will happen for unaccompanied children and young people now that the Safety of Rwanda Act has passed?

The UK-Rwanda Treaty sets out that it is not the government’s intention to remove unaccompanied children to Rwanda. Article 3.4 of the UK-Rwanda Treaty states:

The Agreement does not cover unaccompanied children and the United Kingdom confirms that it shall not seek to relocate unaccompanied individuals who are deemed to be under the age of 18.

However, we are concerned about those children whose age is disputed and who are treated as adults. In future, there is a risk of removal before the individual has had the chance to legally challenge the decision to treat them as an adult.

Robert Jenrick, the then Immigration Minister, said on 6 December 2023:

The number of individuals who can be relocated to Rwanda under the Migration and Economic Development Partnership is uncapped. Rwanda has made initial provision to receive 200 people and has plans to scale up capacity once flights begin.

To put this in context, there were 74,751 asylum applications (relating to 89,398 people) in 2022, according to Home Office statistics.

The current guidance on inadmissibility outlines the government’s view of asylum claims that it decides are ‘inadmissible’, meaning they will not be considered in the UK. Broadly, it is about whether the government considers that you could have claimed asylum in a different country. It states:

… asylum claims may be declared inadmissible and not substantively considered in the UK, if the claimant was previously present in or had another connection to a safe third country, where they claimed asylum, or could reasonably be expected to have done so (or, for claims made before 28 June 2022, where exceptional circumstances didn’t prevent such a claim), provided there is a reasonable prospect of removing them in a reasonable time to a safe third country.

Unaccompanied children are exempt from inadmissibility action under this current guidance.

If the government decides a claim is inadmissible under this guidance, the person may be eligible for removal to Rwanda if:

• they claimed asylum on or after 1^st January 2022;
• their journey is deemed ‘dangerous’ by the government;
• they are not in families with children under 18.

The government could consider someone for removal for Rwanda if they are detained or non-detained. The guidance says the government will prioritise people who arrived in the UK after 9^th May 2022.

At the moment the current inadmissibility guidance can be applied to people who arrived in the UK without permission since 7^th March 2023, but only until the Home Office brings in new rules and issues new guidance for this group. We expect the Home Office to publish new guidance on this group but we do not know when this will be.

Therefore, whilst the government is operating under the current inadmissibility guidance, it seems that the most at-risk group are people who arrived in the UK after 9^th May 2022, who have not yet had their asylum claim processed and who already received a Notice of Intent.

According to a Home Office Equality Impact Assessment published on 29^th April 2024 there is a specific existing group of individuals in line for removal to Rwanda. The document states:

Ministers have chosen to retain a cohort of people who were issued a Notice of Intent (NOI) to treat their asylum claim as inadmissible and remove them to Rwanda under the safe third country inadmissibility processes following the coming into force of the Safety of Rwanda Act. Of the 5,700 people Rwanda has in principle agreed to accept, 2,143 continue to report to the Home Office and can be located for detention.

The Home Office committed to resuming decision making in respect of this group upon the coming into force of the Safety of Rwanda Act and the UK-Rwanda Treaty, at which point removals of individuals in this group to Rwanda can take place.

It is also worth noting that there is another, separate scheme for voluntary returns. This is not about forced removal but rather a process in which a wider group of people, including people who have been refused asylum, are offered the option of going to Rwanda with the potential to receive £3000.

Unaccompanied children are exempt from inadmissibility action under the current inadmissibility guidance.

The current inadmissibility guidance does not specifically address what happens when an unaccompanied child turns 18 nor say whether at this point the government could say that their asylum claim is inadmissible. However, we believe that this situation is unlikely because for the older asylum claims from unaccompanied children who arrived before 7^th March 2023, we know that most of these claims have been admitted to the asylum system and processed as part of the backlog clearance.

The situation where an unaccompanied child could become subject to inadmissibility action would be if they were initially treated as an unaccompanied child but then have their age determined as being over 18. The current inadmissibility guidance gives an example of where an inadmissibility case can take longer than six months as:

if a person whose age is initially disputed is treated as a child and therefore not progressed in the inadmissibility process, but is later assessed to be an adult.

During the processing of an asylum claim, a claim could be considered for potential inadmissibility action at any time. Having received a questionnaire or having had an asylum interview does not make an asylum claim safe from inadmissibility action.

The guidance states:

Provided a substantive asylum decision has not been made, caseworkers may refer cases to be considered for inadmissibility action at any time, including where the claimant has been substantively interviewed (indeed, it may only be disclosures at interview which reveal the claimant’s status or presence in a third country). In general, cases are most likely to be suitable for inadmissibility action close to the time of arrival in the UK, but older cases may be suitable, depending on the facts.

If you have received an asylum decision from the Home Office, then your claim has been admitted to the UK asylum system and processed and it cannot be deemed inadmissible.

Government decision-makers send asylum claims that could be inadmissible to a Home Office team called the Third Country Unit.

If the Third Country Unit thinks the case appears to satisfy the inadmissibility criteria, it issues a Notice of Intent to the person claiming asylum. This is not a decision that the claim is inadmissible; it is notification that the Home Office is considering whether it is. The guidance states:

The notice is not a formal decision – it is a letter to inform a claimant how their asylum claim is being managed, inviting representations regarding all matters which may be relevant to an inadmissibility declaration, removal from the UK and the country or countries of possible removal.

You can ask for more time to respond to a Notice of Intent. The guidance states:

The notice of intent gives standard timescales within which a claimant may make representations (7 days for those who are detained; 14 days for others), and sets out that claimants may request extensions to these timescales. The notice is clear that at the end of this period, including any extension, an inadmissibility decision may be made, based on the information available to the Home Office at that time.

It is extremely important to get legal representation for both the substantive asylum claim and to get legal advice on challenging the Notice of Intent by judicial review.

We know it is very difficult to get legal representation, but it can be easier to refer a judicial review (JR).

If you have received a Notice of Intent and then have got an inadmissibility decision letter saying the Home Office considers inadmissibility action is possible and appropriate, alongside a formal removal decision, it is even more important to urgently get legal representation.

Please see the Greater Manchester Immigration Aid Unit website for contact details to make refers to them (for the North West) and to Duncan Lewis Public Law team and Wilson Solicitors.

The government has said that it has increased the capacity it has to detain people to 2200. We understand this to mean total detention capacity and so it includes those already in detention. According to Home Office statistics, at the end of 2023, there were 1782 people in detention. This would suggest that the Home Office may now have several hundred more detention spaces, but we cannot be sure. In any case, the number of detention spaces is far lower than the number of people in the asylum system whose claims could be considered inadmissible.

If you are claiming asylum and you are going to report, we would recommend that you:

• Tell your legal representative or any support worker that you are reporting;
• Go to report with somebody who can wait for you outside, or otherwise arrange to call a friend or support worker afterwards;
• Have the contact details of your legal representative with you, if you have a legal representative;
• Keep your asylum claim paperwork in order and take it with you.

The government is relying on Rwanda for its new asylum scheme.

The Illegal Migration Act 2023 is a law passed in July 2023 that, when implemented, will change the UK asylum system. The main idea of the scheme is that the UK won’t even ‘admit’ asylum claims from anyone who arrives in the UK without permission after 7^th March 2023 unless they come directly from their home country. This means that the Home Office will not consider their asylum claim at all.

The scheme relies on a plan of sending people out of the UK. The government has given itself a ‘duty to remove’ them (not yet in force).

But the key question has been ‘where can the government send them?’. It is not easy for the government to send people back to France or to other EU countries. The government’s answer was that it could send people to Rwanda, so it was waiting for decisions from the courts and then for the Safety of Rwanda Act to pass before implementing the Illegal Migration Act scheme.

Now that the Safety of Rwanda Act has passed, we expect the Home Office to implement its new asylum scheme any day.

The next thing we would expect to see is:

• Commencement of the scheme – meaning bringing provisions formally into law; and
• Published guidance and policies on the gov.uk website.

We do not yet know when we will get either of these.

It is very important to know the date when you arrived in the UK. This is because the new scheme can only apply to people who arrived in the UK on or after 7^th March 2023 and there may be differences depending on when you arrived even after that date.

Because of all the changes to the asylum system, the Home Office refers to different ‘cohorts’. It has committed to processing asylum claims cohort by cohort in date order. So knowing what cohort you are in means you know what laws and policies apply to you.