In a unanimous decision, the Court of Appeal today quashed the Judicial Review and Injunctions (JRI) policy which enabled the refusal a migrant’s case and their forcible removal from the UK, within hours and in many cases without access to justice.

Over 40,000 removals were affected by the policy resulting in vulnerable people being put at risk. Some were recognised as having been removed unlawfully, were brought back to the UK and granted leave to remain.

The judgment from the Lord Chief Justice Lord Burnett, Lord Justice Hickinbottom and Lord Justice Coulson emphasises the importance of the right of access to justice under our common law :

“The right to access the court is an absolute and inviolable right… the right to access to the court is not a relative right to be balanced against other rights and interests“

The policy includes “removal windows” whereby someone is given as little as 72 hours notice that they might be removed from the UK at some point during the subsequent 3 months, without any warning.

The Court found :

“… the Policy allows for no adequate opportunity – or, indeed, any opportunity at all – for the individual to take advice and lodge a judicial review challenging that decision before he or she is at risk of removal which arises immediately upon the adverse decision being taken and notified”

“whether an irregular migrant is removed before he or she has had an opportunity to obtain legal advice and apply to the court is a matter of pure happenchance. It is, in the legal sense, arbitrary and thus in any event unlawful.”

A Medical Justice spokesperson said :

“One of our society’s most precious treasures is access to justice. Chillingly, away from the public gaze, this policy denied that fundamental right on a massive scale causing serious harm to extremely vulnerable people and risking life. It was effectively a shortcut to removal. Quashing the policy brings us back towards equal access to justice for all.

“Many of our sick clients were subject to “removal windows” – we didn’t know if they would still be in the UK from one day to the next. Clients we have managed to remain in contact with have described terrible consequences. Others have not been heard of again.

“Cases where people are removed from the UK without access to legal representation are particularly concerning as they are unlikely to be known about by any independent organisation, making it difficult to know the true extent of the policy’s impact. Some cases only came to light when removals had been aborted by chance. “

Our instructed solicitor, Rakesh Singh, of the Public Law Project said:

“This is a case about access to justice, one of the fundamental values of the British constitution.

“The ‘removal windows’ policy shut people out of the legal process. It meant that when mistakes were made, people could not access the court to put things right, and led the Home Office to remove people with a right to be here – including a number who were caught up in the Windrush situation. Removing people in this way caused terrible injustices and placed many individuals and families in danger and into hardship, unnecessarily and unjustly.”

Explainer

A removal window notice can be given where arrangements for the person’s removal have not yet been made. The Home Office’s rationale is to prompt migrants to raise any human rights claims or other reasons for remaining in the UK. However migrants are expected to do this within the very short notice periods which is almost impossible if they do not have a lawyer. Even if they do make those further submissions within the short notice period, negative decisions which could be challenged in the courts can then be given to migrants shortly before removal and even on the same day, making it impossible for the individual to challenge an unlawful removal. The Court accepted that the extensive evidence which had been assembled by Medical Justice and PLP, “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”.

Migrants who have had applications or appeals previously refused, may have valid reasons to make fresh submissions. For example, key issues were not previously identified, adequately evidenced and properly considered, including indicators that an individual was a trafficking victim. Or the person may have been in the UK for decades, and have UK-born children or grandchildren, or their circumstances have changed. Whether an immigration claim or a fresh submission has been outstanding for many years or made at or after the point of arrest, the Home Office can refuse them at the same time the migrant is arrested, detained and taken to an airplane. The court found that there were no sufficient safeguards in the policy that protect against unlawful removal.

 

Case Studies

Mr A is “Windrush” case. He came to the UK from the West Indies in the eighties, married here and was granted Indefinite Leave to Remain. He has lived here ever since and has a British child. He was arrested out of the blue from his home, and served with a “removal window”. He was unable to access legal advice in time inside the immigration removal centre he was held in. Luckily a friend was able to engage a solicitor who got an injunction the evening before he was due to be removed from the UK. The evidence that the solicitor obtained was voluminous – over 500 pages covering almost 30 years of continuous residence. This could definitely not have been compiled within 72 hours. It was eventually confirmed that he had Indefinite Leave to Remain all along and that he had been unlawfully detained.

 

Mr B. The Home Office refused to give any consideration to new information provided by Mr B that several of his relatives had been killed in his home country, which was highly relevant to his asylum claim because it indicated that he was in danger. The Home Office said that since he did not follow the correct procedure, they would not consider this claim. Mr B was told this at the same time he was detained for removal. He was removed that same day without having had access to legal advice. The Home Office later brought him back to the UK, accepting that his removal was unlawful, and granted him refugee status.

 

Mr C was a suicidal man suffering a serious psychotic illness who had no legal representative at the time. He is the father of a British child. He had been told to come to an interview. He was not interviewed but instead detained and removed on the same day with very limited anti-psychotic medication. Medical Justice was informed of his case and found him a solicitor. A judge ordered the Home Office to bring him back to the UK. The Home Office admitted that it had misused its powers, had prevented him from having access to legal advice and the court and had unlawfully detained and removed him. The Home Office later granted Mr C 30 months leave to remain on the grounds of his family life with his British child.

 

Mr D was issued a “removal window”. His marriage to a Gambian woman who had Indefinite Leave to Remain, and who was heavily pregnant with his child, had not previously been raised with or considered by the Home Office. The day the notice period ended he reported to the Home Office, was detained and told he would be removed the following day. Immigration Officers took him to his flat to collect belongings and saw that his wife was heavily pregnant. The next day he protested. The removal did not go ahead and the Home Office recorded that Mr D had ‘disrupted’ it. His wife gave birth to their son, a British citizen, during the removal window. Mr D informed the Home Office of the birth of his son the same day, and subsequently provided photographs and a copy of his son’s birth certificate naming him as the father. The Home Office refused to treat this as a fresh human rights claim based on his family life. Up until his removal some months later, Mr D and his wife made every effort to find a legal aid solicitor to represent them, but were unable to find one. He was removed from the UK, separating him from his wife and child. Following a legal challenge a Judge said that the refusal of the fresh human rights claim was unlawful and ordered the Home Office to bring Mr D back to the UK. Mr D was eventually able to return to the UK and the Home Office granted him 30 months leave to remain on the grounds of his Article 8 family life.

 

A copy of the judgment is available below, or on the Judiciary website (www.judiciary.uk) or BAILII

Medical Justice v SSHD: Approved Judgment

Contact: Medical Justice – Emma Ginn, Director, on 07786 517379 / emma.ginn@medicaljusticeorg.uk

Notes

  • Medical Justice applied for interim relief and the Administrative Court placed an injunction on use of the removal window policy in March 2019. The case was refused in September 2019. The injunction remained in force pending the Court of Appeal hearing.
  • The Court of Appeal heard Medical Justice’s appeal of that refusal on 7th July 2020. The hearing tied together challenges brought by Medical Justice and FB (Afghanistan), an individual who faced removal under the policy.
  • Medical Justice was represented by Charlotte Kilroy QC and Anthony Vaughan of Doughty Street Chambers, and Alison Pickup, PLP’s Legal Director, and the instructing solicitor was Rakesh Singh of PLP who has led our work on notice of removal since 2014.
  • FB’s barristers were Sonali Naik QC and Ali Bandegani of Garden Court Chambers and Alex Goodman of Landmark Chambers, instructed by Duncan Lewis solicitors.
  • The Equality and Human Rights Commission filed a written intervention and was represented by Stephanie Harrison QC of Garden Court Chambers and Shu Shin Luh of Doughty Street Chambers, instructed by Sara Brunet at the EHRC.
  • Medical Justice is a charity that sends volunteer doctors into immigration removal centres (IRCs) to assist detainees, documenting their scars of torture, medical conditions, and injuries sustained during removal attempts, and to challenge instances of inadequate healthcare. With our medical evidence, we identify systemic healthcare failures to the Home Office and NHS England.
  • In 2010, the Public Law Project (PLP) represented Medical Justice in our judicial review of the Home Office’s policy of providing less than 72 hours notice, or none at all, to specified categories of individuals. The High Court judgment, later upheld by the Court of Appeal, quashed that policy as an unconstitutional abrogation of the right of access to the court. Since then, Medical Justice and PLP have monitored the Home Office’s removal policies. In July 2018, PLP intervened in a judicial review (R (FB and NR) v SSHD) brought in the Upper Tribunal of the Home Office’s policy. Following that judgment, the policy was amended.