High Court suspends Home Office deportations policy

21 March 2019 by Guest Contributor

R (Medical Justice) v Secretary of State for the Home Department [2019] CO/543/2019, Walker J, 14 March 2019, written reasons here

The High Court delivered the latest in a series of blows to the Government’s ‘hostile environment’ immigration policy on Thursday.

Walker J granted Medical Justice an interim injunction which will prevent the Home Office from removing or deporting people from the country without notice.

Background

Medical Justice is an independent charity. It describes itself as a “tiny organisation” working for the health rights of those held in indeterminate immigration detention. It seeks judicial review of the defendant’s “Removal Notice Window” (RNW) policy. Under the policy, those liable to removal from the UK are given a short window to identify any new ground for being able to stay in the country. Once this window has elapsed, such persons are given a 28 day or 3 month ‘removal window’, but the policy does not require any further notice be given as to the actual date or time of removal. The effect of this, suggests Charlotte Kilroy QC, is to

produce a situation where there’s no access to justice in relation to the decision the secretary of state makes.

The RNW policy was previously challenged in R (FB) v Secretary of State for the Home Department [2018] UKUT 428. In that case Lane J and O’Connor UTJ found that the policy was, as a general matter, compatible with access to justice but was legally deficient, both in its treatment of cases where a removal window is deferred and in the lack of information regarding place and route of removal. Permission has been granted to appeal to the Court of Appeal, and a hearing is expected in June or July.

Although the present case was held not to be materially different from FB, it relies on 11 further case studies concerning a much wider range of categories. Medical justice has published summaries of some of these: In one, an asylum seeker was removed same-day without access to legal advice. In another, the suicidal father of a British child was told to come to an interview which never took place; he was instead detained and removed with no access to a legal representative. In both cases the Home Office later brought the men back to the UK, accepting that removal was unlawful.

Issues

The claimant sought an interim injunction. The case studies, they argued, were cogent evidence that individuals with good grounds to challenge removal risk being removed without a chance to explain those grounds. Walker J, in his reasons for granting the injunction, stated that

On the face of those case studies there appears to be strong reason for a real concern that the policy unjustifiably impedes access to justice. [3]

The defendant argued that such concern did not require an interim injunction, submitting that

1. the lawfulness of the RNW policy is the central feature in both FB and the present case;
2. changes to the policy since FB are immaterial to the present case;
3. the Upper Tribunal in FB had already ruled on the lawfulness of the policy;
4. the claimant’s submissions do not change the legal position in FB,
5. the present case is distinguishable from R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin), where an injunction was granted; and
6. MJ was simply having a second bite of the cherry; all relevant points should have been raised in FB.

Decision

Walker J accepted the defendant’s first three submissions, but rejected submissions 4, 5 and 6. The case studies were not before the Upper Tribunal in FB. While the legal arguments raised were similar, they arose on a different factual basis.

Walker J then distinguished the present claim from civil claims, where a second bite of the cherry would be an abuse of process, stating

It is at least arguable that there is no abuse of process when, as a result of concern about an earlier decision made on limited evidence, further evidence is gathered for a public law challenge. [6]

Finally, Walker J considered the balance of convenience, and decided that

There can be a danger of disruptive tactics, but that is not so great as to outweigh the danger that individuals who ought not to be removed will be deprived of access to justice. [7]

In light of this, the interim injunction was granted.

Implications and reception

The case now awaits a full hearing in June or July. In the interim, the injunction prevents the Home Office from removing or deporting individuals without notice as to date and time. According to the Home Office’s submissions, this will have necessitated the cancellation of 69 removals scheduled for Thursday and Friday.

In response to the judgement, Law Society president Christina Blacklaws said

The Law Society welcomes the High Court decision to suspend the current immigration policy which unjustifiably allows for people to be ejected from the UK with just hours’ notice, creating a grave risk of unlawful removal that may put lives at risk.

Samuel March is a paralegal and is due to start the Bar Professional Training Course later this year.