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Court of Appeal rules Home Office removal window policy unlawful

On 21/10/2020, in R ((1) FB (Afghanistan) (2) Medical Justice) v Secretary of State for the Home Department [2020] EWCA Civ 1338, the Court of Appeal unanimously declared that the Home Office’s removal window policy (“the Policy”) unlawfully created a real risk of preventing migrants from access to justice. 

Background

Section 10(1) of the Immigration and Asylum Act 1999 as amended by the Immigration Act 2014 states that a person who “requires leave to enter or remain in the United Kingdom but does not have it” may be removed from the UK. Somebody without the correct immigration status is also known as an “irregular migrant”.

The Secretary of State can introduce policies to determine the specifics of removals; the Policy challenged in this case was Chapter 60 of the General Instructions to Home Office caseworkers. The Policy allows for an irregular migrant to be served with 72 hours’ notice that they are liable to removal at any time after the 72 hours notice, within a ‘window’ of three months. The Policy aimed to increase the efficiency and effectiveness of removals by encouraging prompt applications for leave to remain and reducing the number of removals disrupted. The Policy was in effect from April 2015 to March 2019, and affected over 40,000 removals. 

Facts

The appeal combined two previous challenges to the Policy’s lawfulness which had failed. FB involved an asylum seeker from Afghanistan, who was notified of his removal under the policy – but accepted that in his specific case, he was not in fact denied access to justice. The second was a public interest case brought by the charity Medical Justice.

Grounds of Appeal

The appeal was brought on two main grounds:

  1. Mere notice of a removal window was unlawful because the common law and/or statute requires specific directions of the date and time of removal to be given; and
  2. Nonetheless, the policy leaves an irregular migrant at immediate risk of removal without a right to access to justice to challenge the decision in a court or tribunal.

It should be noted that the Appellants did not challenge the length of the removal window or notice period itself.

Judgment – Issue 1

The first ground was dismissed as removal windows were found not to be inherently unlawful. Regarding statute, LJ Hickinbottom ruled that the basis that Section 10(7) confers a power to give removal directions – rather than a duty [§80]. Moreover, it only mentions the power in relation to informing the people carrying out the removal, not the individual being removed. LJ Hickinbottom did acknowledge the common law duty to give notice of a decision negatively affecting an individual’s rights, but added that the “duty is neither absolute nor stand-alone.” [§81].

Judgment – Issue 2

Medical Justice succeeded in their submission that the Policy amounted to an unacceptable breach of the right for irregular migrants to have access to justice. The Court recognised that the “right to access to justice is an inevitable consequence of the rule of law: as such, it is a fundamental principle in any democratic society” [§91], and relied on R (Unison) v Lord Chancellor [2017] UKSC 51 to confirm that the access must be effective and realistic. The Appellants made a systemic challenge to the Policy, thus the Respondent’s submission that there was only evidence showing restricted access to justice in a few cases failed as the Court held “it is no answer to say that these are merely aberrant individual decisions” [§132]. For an effective remedy of challenging a decision surrounding removal, the scheme must allow irregular migrants to have access to justice in practice. Whilst individuals may be able to apply to the Home Office to challenge the decision that led to their removal notice, (or for removal to be deferred or stayed), the timing means they are likely to receive a decision during the removal window – when they are at risk of being immediately removed from the UK so at a real risk of being unable to challenge the result. LJ Hickinbottom agreed that “the evidence clearly shows that almost all decisions material to removal which are made in respect of applications and representations made following service of the notice of the removal window are made within the window period itself.” [§126]  

Comment

This result is positive in affirming access to justice for all. However, the Court does acknowledge that the “common law right to access to justice may be restricted, but only by Parliament and then only by clear authorisation in the form of express statutory provision of necessary implication [§98]. However, a Home Office spokesperson said in response to the ruling that: “Our immigration and asylum system is fundamentally broken and we are determined to introduce a new system that is fair, firm and will expedite the removal of those who have no legitimate claim for protection.” This leads one to wonder whether the government will propose measures which may curtail that right alongside their tough stance on fixing “our broken asylum system.”

Indeed, even as Lord Chief Justice Lord Burnett of Maldon agreed the Policy was inherently unlawful, he appeared to echo anti-migrant rhetoric in his judgment, and certain word choices seemed reminiscent of the ‘activist lawyers’ claim: “Late claims raised shortly before the known date of removal have been endemic, many fanciful or entirely false. Whilst there is no suggestion of any such conduct in these proceedings, it is a matter of regret that a minority of lawyers have lent their professional weight and support to vexatious representations and abusive late legal challenges.”

Whilst it is true that the removal system has a legitimate interest in preventing an abuse of the system, it is a shame that such a fundamental principle as the right to access to justice to argue one’s case is being increasingly politicised. 

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