Home Office Removals Policy Unlawful, holds Court of Appeal

27 October 2020 by

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R ((1) FB (Afghanistan) (2) Medical Justice) v Secretary of State for the Home Department [2020] EWCA Civ 1338

On 21/10/2020, the Court of Appeal ruled that the Home Office’s removal window policy (‘the Policy’) was unlawful. The Policy incorporated an unacceptable risk of interference with the right of access to court by exposing a category of irregular migrants — including those who have claims in respect of their right to life and/or freedom from torture and inhuman or degrading treatment — to the risk of removal without any proper opportunity to challenge a relevant decision in a court or tribunal.

Background

The Appellants were FB, an Afghan national bringing an individual claim, and Medical Justice, an independent charity bringing a systemic challenge.

The Policy under challenge formed part of Chapter 60 of the General Instructions to Home Office caseworkers, which was in effect from April 2015 to March 2019 when an interim injunction was issued as part of these proceedings.

Under the Policy, those liable to removal from the UK (“irregular migrants”) were given a short window to identify any new ground for being able to stay in the country. Once this window had elapsed, irregular migrants were given a 28-day or 3-month ‘removal window’. But the policy did not require any further notice be given as to the actual date or time of removal.

The Decisions at First Instance

At first instance, both of their claims were unsuccessful, with the Upper Tribunal (Immigration and Asylum Chamber) and the High Court respectively holding that that the Policy did not unlawfully restrict access to justice (see [2018] UKUT 428 (IAC) and [2019] EWHC 2391 (Admin)). The appeals were heard together, supported by written submissions on behalf of the Equality and Human Rights Commission (intervening).

Issues on Appeal

The challenge fell under two broad heads, namely:

1. That notice of a removal window, without notice of directions, was unlawful, because the common law and/or the statutory scheme required notice of directions specifying date and time of removal to be given; and

2. Even if they were not, the Policy unlawfully interfered with the right of irregular migrants to access to justice.

Issue 1: Inherent Unlawfulness of Removal Windows

The Appellants were unsuccessful in respect of this issue for the reasons given at [74-87] of the lead judgment.

Neither the relevant statutory provisions nor the common law required that a specific date and time of removal, in the form of removal directions, be given. As such, there is nothing inherently unlawful about the Secretary of State effecting removal of an irregular migrant where notice was given in the form of a removal window, even if no notice of the exact intended date and time of removal is given.

Issue 2: Breach of the Right of Access to Justice

Medical Justice was, however, successful in respect of what Hickinbottom LJ considered to be the primary ground of appeal. Medical Justice submitted that there was serious risk inherent in the system of removal taking place before the affected individual was able to access the court to challenge the decision. This amounted to an unacceptable risk of a breach of the common law right to access to justice.

At [126] Hickinbottom LJ agreed with Medical Justice, holding that

The right is infringed because, following an adverse decision material to their removal which is notified in the removal window, like those who fell within an exemption, as a result of the Policy itself, those involved are at risk of removal without any opportunity to challenge the relevant decision in a court or tribunal, i.e. they are at real risk of effectively being prevented from having access to justice. […] 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. As the unfairness is inherent in the Policy itself, Ms Kilroy submitted that the focus of the tribunal and (particularly) Freedman J on the case studies and evidence of numbers of cases in which an irregular migrant’s access to justice had in fact been interfered with was misplaced. I agree.

A declaration was therefore made at [165] that the JRI Policy was unlawful insofar as it gave rise to a real risk of preventing access to justice.

FB’s Individual Case

FB was not, in his individual case denied access to justice as a result of the operation of the Policy and indeed did not contend as such. Therefore, as stated at [163], no relief specific to FB’s individual case was required or appropriate. Nevertheless, his appeal was allowed and it was declared that Chapter 60 of the Policy was unlawful insofar as it gave rise to a real risk of preventing access to justice.

Commentary 

The ruling comes at a moment of particular political tension surrounding immigration policy, removals, and legal challenges brought against decisions of the Home Office.

In August, the Home Office deleted a tweet claiming that current immigration regulations were ‘rigid and open to abuse allowing activist lawyers to delay and disrupt reforms’.

The Law Society responded by issuing a statement that ‘attacks on the legal profession undermine the rule of law’. The Bar Council also issued a statement which ‘strongly condemn[ed] the use of divisive and deceptive language that undermines the rule of law and those working to uphold it’. The tweet was also condemned in a similar statement issued by The Faculty of Advocates in Scotland.

Undeterred, Home Secretary Priti Patel used her Conservative Party Conference speech ‘fixing our broken asylum system’ earlier this month as a further opportunity to take aim at ‘those defending the broken system – the traffickers, the do gooders, the leftie lawyers, the Labour Party’ who she claims are ‘defending the indefensible’. The Prime Minister himself then adopted her language, vilifying ‘lefty human rights lawyers and other do-gooders’ in his own speech.

Yesterday, the Guardian published a letter from over 800 lawyers and academics protesting attacks on the legal profession.

Against this backdrop, the comments of Lord Burnett of Maldon LCJ at [178] are particularly noteworthy. Whilst he agreed overall that the Policy was unlawful and required modification, his judgment appears to voice some sympathy for the position of the Home Office. He criticised ‘a minority of lawyers’ for making ‘vexatious representations’ and ‘abusive’ legal challenges, stating that

Any system of removing irregular migrants must operate in the sure knowledge that some are reluctant to leave the United Kingdom, even when there is no basis for remaining here, and will take whatever steps are permitted by the legal and administrative arrangements in place to resist, delay or frustrate removal. 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. The courts have developed controls which provide some protection for its own processes and for the proper functioning of immigration control (e.g. Madan, Hamid and SB, cited at paragraph 104 above); but the practical and administrative problems for the Home Office in dealing at speed with substantial new representations in the days and hours leading up to a removal are legion.

Monidipa Fouzder, writing for the Law Society Gazette, considers that the Lord Chief Justice has ‘unexpectedly waded into the row between the Home Office and Lawyers’.

Samuel March is a pupil at 5 Paper Buildings. He tweets at @Sam_Oscar_March

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