A trade union is considering legal action to halt the UK government’s latest Rwanda deportation plan as leaked Home Office documents show asylum seekers could delay removals for a year by pursuing their own individual claims.
The Public and Commercial Services Union (PCS), which represents Border Force guards among other civil servants, said it planned to challenge Rishi Sunak’s safety of Rwanda bill, if it passes into law, on the grounds it is unconstitutional.
Separately, documents marked “official sensitive” from September estimate that individual asylum seekers would be able to delay their removal by submitting repeated legal appeals and new claims under the Illegal Migration Act.
The prime minister is facing demands from the right of the Conservative party to go further in blocking the possibility of legal challenges against the bill.
Paul O’Connor, the union’s head of bargaining, said: “The judgment of the supreme court was absolutely clear – they found on a factual basis that Rwanda is not a safe country for refugees. The court was also clear that there is a raft of domestic and international law rendering this policy unlawful.
“These facts cannot be just be wished away or legislated out of existence. If this emergency bill passes it will be successfully challenged in the courts. We are already in active discussions with our lawyers on our grounds for challenge.”
The PCS has been part of previous group actions involving refugee charities and NGOs that have challenged the deportation policy of sending people seeking asylum to Rwanda. The union’s grounds of argument were adopted at the court of appeal and the supreme court, sources said.
Legal experts have previously said the treaty and the bill, which were unveiled by Sunak last week following last month’s damning supreme court judgment, could be challenged in the domestic courts.
According to Mark Elliott, a professor of public law at the University of Cambridge, it would break new legal ground if the bill was challenged on the ground that it is unconstitutional.
He said: “There are cases where certain judges have suggested that such a challenge could happen but it would be novel and potentially dangerous for the courts because of the risk that they would provoke a constitutional crisis.”
The bill could also be challenged using section 4 of the Human Rights Act or by taking a case to the European court of human rights Strasbourg, he said.
For a court to rule, in effect, that parliament had exceeded its authority by seeking to limit the supreme court’s constitutional role, would be fraught with risk for the judiciary.
Sunak’s bill would allow asylum seekers to block their removal if they can prove they face serious and irreversible harm.
The leaked Home Office assessment suggests that successive appeals against the refusal of a claim of “serious and irreversible harm” could delay removal in some cases.
If people succeed in taking their their claim through every stage of the legal system, it could lead to delays of between 239 and 420 days, according to the Home Office assessment, which was presented at a meeting of the illegal migration operations command on 22 September.
It calculated that people could initially delay their removal by between 17 and 57 days by appealing against a rejection. They would then be able to delay removal by between 42 and 183 days by taking their appeal to an upper tribunal or the high court.
A final appeal could then be lodged, under the principle of “natural justice”, if an asylum seeker submitted new evidence, with the court of appeal. In this rare instance it would add a further 180 days to the process, according to the Home Office document.
Sunak’s bill, which will be voted on by MPs on Tuesday night, is designed to prevent future legal challenges blocking the government’s policy of deporting people seeking sanctuary to the African country.
On Monday, Sir Matthew Rycroft, the permanent secretary of the Home Office, told MPs he had seen “no credible evidence” that the policy of sending asylum seekers to central Africa was value for money.
