Fast track asylum removal system ruled unlawful

26 July 2010 by

Medical Justice, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) (26 July 2010)  – Read judgment

The High Court has ruled that a fast-track scheme for the removal of failed asylum seekers with little or no notice is unlawful as it does not provide sufficient access to justice.

Permission to appeal has been granted but the decision could put a stop to the policy being implemented for the time being.

The challenge was brought by Medical Justice, a charity which advises asylum seekers, represented by the Public Law Project, a legal charity which aims to improve access to public law remedies (see their press release here). The policy being challenged came into effect in January 2010, and gives individuals who fall into certain specified categories and who have made unsuccessful claims to enter or to remain in the United Kingdom, little or sometimes no notice of their removal directions.

Mr Justice Silber ruled that the policy was unlawful on the basis that it does not ensure proper access to the courts for those being removed, which ran contrary to the constitutional right, bolstered by Article 6 of the European Convention, that “every individual must be in a position to challenge a decision in the court“. The judge’s principle concern was that they permit the Secretary of State to depart from the standard policy of giving a minimum of 72 hours’ notice of removal including at least two working days with the last 24 hours being on a working day. The effect of this is that

in practice in the limited time available between serving the removal directions and the actual removal, it is frequently almost impossible that somebody served with removal directions will be able to find a lawyer who would be ready, willing and able to provide legal advice within the time available prior to removal let alone in an appropriate case to challenge those removal directions.

This means that there “is a very high risk if not an inevitability that the right of access to justice is being and will be infringed.” The judge therefore quashed the policy, although making clear at the same time that he was not casting any doubt over the legality of the minimum 72 hour time frame.

Mr Justice Silber granted permission to appeal the decision, so this is unlikely to be the last we will hear of the matter. It should also be noted that the mere fact that the policy has been quashed by a court does not mean that the UK Border Agency must stop employing it. However, in the meantime, it seems likely that any fast-track removals which are attempted without giving at least 72 hours notice will be vulnerable to judicial review.

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