14th March 2019 Medical Justice press statement for immediate release
High Court suspends unscrupulous policy of removing unwanted migrants from the UK without warning
The Home Office removals policy enabling it to refuse a migrant’s case and forcibly remove them from the UK, within hours and in many cases without access to legal representation, was suspended by a High Court judge today, potentially tearing the heart out of the government’s “hostile environment” strategy against migrants.
Mr Justice Walker said today : “… there appears to be grounds for real concern about access to justice”
According to Home Office submissions made today, they will now have to cancel 69 removals scheduled for today and tomorrow.
Medical Justice, a small charity that assists migrants suffering mistreatment in immigration detention, brought the case. Permission was granted for their judicial review of the policy. Suspension of the policy was granted as interim relief. Te full hearing will be in June or July.
Home Office has been secretive about how the policy operates, refusing to answer questions like how many migrants they have subjected to it. Possibly, the majority of the 27,000 people who are detained each year, as well as tens of thousands of migrants in the community, have been subjected to it.
The policy includes “removal windows” whereby, depending on the type of case, between 72 hours and 7 days notice is given to a migrant that they might be removed from the UK at some point during the subsequent 3 months, without any warning. If after 3 months they have not been removed, the Home Office can open another 3 month window, prolonging the ‘limbo’ seemingly indefinitely.
A removal window notice can be given where arrangements for the person’s removal has 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, there is no time limit on when the Home Office have to make a decision and almost invariably it is made during the removal window – when the migrant does not know when they will be removed. 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.
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. Cases where individuals are removed from the UK without to access legal advice and are particularly concerning because they are unlikely to be reported or detected at all outside of the Home Office. Some cases have only come to light when removals have been aborted by chance. There are no effective safeguards in the policy that protect against unlawful removal. Once the “removal window” begins, Home Office officials are given complete freedom to act as they see fit without any effective supervision by the courts.
Case-study : A “Windrush” case, where a man came to the UK from Jamaica to visit his girlfriend in 1988, married her in 1989, and was granted Indefinite Leave to Remain in the UK. He has lived here ever since and has a British son. He was arrested out of the blue from his home in 2017, 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 his ex-partner was able to engage a solicitor who got an injunction the evening before he was due to be removed to Jamaica. The evidence that the solicitor obtained was voluminous – over 500 pages covering almost 30 years of continuous residence, including Home Office records, tax and NI records, DWP records, GP medical records, local authority records, DVLA records and correspondence from official sources. This could definitely not have been compiled with a 72 hours. The Home Office eventually confirmed he had Indefinite Leave to Remain all along and that they had unlawfully detained and attempted to remove him.
A Medical Justice spokesperson said : “Denying extremely vulnerable people access to justice on this massive scale is a hidden issue causing serious harm and risking life. Many of our sick clients are subject to “removal windows” – we don’t know if they will still be in the UK from one day to the next. Clients we have managed to remain in contact with have described terrible consequences of being removed with no legal advice and access to the courts. Some have been removed to countries they fled persecution from, and have not been heard of again. The Home Office must bear some responsibility for their fate.
No one is surprised anymore when you describe how the Home Office systematically treats unwanted migrants with contempt, putting many lives in danger. The ‘Windrush scandal’ revealed deliberate callousness, incompetence and chaos of the Home Office – this will not be made better when the Home Office starts to deal with millions of new EU settled status applications, as well as associated detentions and deportations.”
Law Society of England and Wales president Christina Blacklaws said: “Anyone who faces deportation must be given time to prove they have a legal right to live here. The experiences of too many of the Windrush generation show that sometimes the Home Office simply gets it wrong.
“Someone who is at risk of being forced to leave the country must have sufficient time to access legal advice and the opportunity to challenge their removal in the courts. This is a constitutional right afforded to every person in Britain.
“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.”
Case-study B : The Home Office refused to give any consideration to new information provided by a man that several of his relatives had been killed in his home country – this was highly relevant to his asylum claim because it showed that he was in danger. The Home Office said that since he did follow the correct procedure for making this claim they would not consider it. The man 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.
Case-study A : Removal of 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.
Mr. AT 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 AT protested. The removal did not go ahead and the Home Office recorded that AT had ‘disrupted’ it. His wife gave birth to their son, a British citizen, during the removal window. AT 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, AT 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 AT back to the UK. AT 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.
Available for interview – Case-studies and Medical Justice Casework Manager and doctor who visits clients in immigration detention are available.
Contact : Medical Justice – Emma Ginn, Director, on 07786 517379 / emma.ginn@medicaljustice.org.uk
Notes
- 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 medical mistreatment. With our medical evidence, we quantify the endemic extent and severity of harm suffered by immigration detainees. We identify systemic healthcare failures to the Home Office and NHS England and where discussion fail, we may undertake strategic litigation.
- In 2010, the Public Law Project (PLP) represented Medical Justice in our landmark 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.
- Concerns about the lawfulness of the policy are shared by other civil society organisations, including the Law Society and the Immigration Lawyers’ Practitioners Association who provided evidence supporting our claim.
- PLP’s barristers are Charlotte Kilroy QC of Doughty Street Chambers and Alison Pickup, PLP’s Legal Director, and the instructing solicitor is Rakesh Singh who has led our work on notice of removal since 2014.
- Growing ‘advice deserts’ in the community make matters worse for migrants liable to removal. Lengthy waiting periods for Detained Duty Advice surgeries in IRCs means many detainees do not get any advice before their removal. Prior to September 2018, nine providers had contracts to provide advice at IRCs. Now 74 firms are contracted – we have found most of the new firms do not have the expertise needed.
- Operation Perceptor involves arresting and deporting people on the same day and was established to help the Home Office meet its targets, which former Home Secretary Amber Rudd claimed no knowledge of. The “hostile environment” strategy, devised by Theresa May when she was Home Secretary, includes measure that risk criminalising unwanted migrants by including a ban on working, driving, renting accommodation, having a bank account, claiming benefits, access to higher education, and to secondary healthcare.
