No removal without access to solicitor

27 January 2012 by Rosalind English

The Queen on the Application of Medical Justice v Secretary of State for the Home Department  [2011] EWCA Civ 1710 – read judgment

People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim.   The government has failed in its appeal against the Administrative Court’s finding that government policy unlawfully provided for expedited removal procedures in certain pressing circumstances – for example where there was a risk that the person concerned, if given advanced notification of his removal, might attempt to frustrate those measures of removal. The policy was quashed because it interfered with people’s right of access to a lawyer.

The Home Secretary is responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed.

On the other hand, she has to take in to account the countervailing factor is the right of those about to be removed to challenge the removal directions because they infringe their rights under common law, under statute or under the ECHR.  Over the years the temptation became overwhelming to set in train ill-conceived threats of legal proceedings in order to prevent removal. By 2002, it was taking on average more than six weeks for potential claimants even to obtain permission for judicial review and the authorities were unable to hold an individual in detention for that period of time with the result that the individual would be released.In consequence, considerable public funds were wasted in incurring expenditure in respect of detention and escort costs as well as of flight bookings for removals that did not take place. The immigration authorities were concerned that they were later unable to trace individuals who had been released from detention as their removal was no longer imminent.

Background to this case 

As a result, in January last 2010 the Home Department introduced a document entitled “Judicial Review and Injunctions” (“the 2010 policy document”). In essence, under this policy there would be in most cases a minimum period of 72 hours between the setting of removal direction and actual removal during which time an application for judicial review might be made with two working days being included in the 72 hours. The part of this policy under attack is that which 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 perhaps no notice of their removal directions, which are the specific arrangements made for their removal from the United Kingdom.

So the 72 hours rule was not itself the target of this challenge. What the claimants argued was unlawful were these exceptions, where removals could be effected in a shorter time, for instance where in “where swift removal is required to maintain order in removal centres”.  This was no doubt the consequence of the 2007 disturbances occurred at a Removal Centre, which were triggered by detainees with prior notice of removal inciting others to riot. It was felt that this and other exceptions should be created to the general rule of 72 hours notice in circumstances where the detainee or a family member, who was also detained, had a history of non-compliance with removal directions and there was strong evidence to suggest an attempt to remove that person with advanced notification posed a risk to the good order and discipline of the Immigration Removal Centre.

In 2010 Silber J in the Administrative Court quashed this part of the government’s policy as being unlawful because it breached the right of access to justice of persons facing imminent removal. The Home Office appealed.

The Appeal 

The main ground of appeal was based on the common law right of access to court, established in  Raymond v Honey [1983 1 AC.1, 13] and a series of pre Human Rights cases such as R v Secretary of State for the Home Department, Ex parte Leech [1994] QB 198, and R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 at 621[26].  The appellant submitted that the judge impermissibly extended the substantive content of the common law right of access to the courts by concluding that the common law principle required the provision of legal advice to a person served with removal directions and that, absent the provision of such advice, removal from the United Kingdom would be unlawful. The effect of Silber J’s conclusion, it was submitted, was that

 in order to ensure the right of access to a court every individual who wishes to access that court must be able to receive legal advice, possibly even paid for by the state. It would have significant implications for the provision of legal services in this country and for the availability of public funding for legal advice.

Another issue was the extent to which to a policy could be made subject to a challenge rather than a claim by a particular individual claimant, who has been adversely affected by the policy under challenge.  In essence, the question was whether instead of quashing the policy, the court should  merely await challenges in individual cases. Silber J’s response in  the court below was that this approach would be “inappropriate” because

 in many cases where access to justice is not available to those served with abridged notice pursuant to the 2010 exceptions, they will be deported and will be unable to pursue their claim from abroad.

A similar issue arose in R (Refugee Law Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219, where Sedley J concluded that judicial intervention is justified to obviate in advance a risk of injustice or potential unfairness. Indeed he went further in that case, indicating not only that a challenge could be brought before the policy has actually been applied, but that the burden was not on the claimants to show that the 2010 exceptions had actually infringed the right of access to justice, but that the burden was on the Secretary of State to show that there was

no serious possibility or an unacceptable risk of infringement of the right of access to justice. A more potent form of evidence would be if the Secretary of State could establish by cogent evidence that the 2010 exceptions have been operated in a way in which it has not interfered with the right of access to justice.

Notoriously difficult as it is to prove a negative, apparently the immigration authorities have a deeper pocket in order to set about doing so.

Another somewhat ironic reason why it was felt that removal could not be expedited beyond the 72 hour rule was that removal directions may be delayed by the legal process itself. The removal order may be subject to a challenge under the ECHR or the Refugee Convention, and the lengthy process of establishing this may unfold against different circumstances obtaining in the country of origin, or changes in the subject’s personal (ie family) life, leading to potential claims under Articles 3 or 8 of the Convention.  Then there is the matter of the doctrine of internal relocation which means that the Tribunals and the Immigration Judges might consider evidence that the person concerned can safely relocate to another part of that country.  The business of obtaining legal advice about all this ‘cannot be short-circuited” and usually inevitably takes “substantial periods of time”.

The Appeal Court’s decision

The Secretary of State’s appeal was dismissed and ruling of the Administrative Court upheld.  The 2010 exceptions, unlike the standard policy of a minimum 72 hour time frame, failed to include provisions ensuring that there was access to the courts by those against whom it is invoked and there was no safeguard for those subject to the 2010 exceptions so as to ensure that their right of access to justice was preserved.  Even the exception for implementing removal directions within the 72 hour timeframe where the subject consented was ruled unlawful,  since there was an “underlying concern” that in such a very short timescale  it would not be possible to ascertain whether genuinely informed consent was given and, if it was not, then to challenge removal.

The consent exception is based upon the same premise as the other exceptions, that is to say that giving less than 72 hours’ notice and in some cases virtually no notice at all, does not give rise to a very high risk that the right of access to justice is being and will be infringed.

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