Court of Appeal: Medical Justice challenge Home Office ‘no-notice’ immigration removalsThursday, July 9th, 2020
Due to its high profile and legal significance, C2/2019/0050 FB (Afghanistan) -v- SSHD and C4/2019/2478 Medical Justice -v- SSHD has been selected for live streaming 7-9th July 2020 – you can watch the last day here.
Our legal team : left to right, Rakesh Singh (solicitor) and Alison Pickup (barrister) from the Public Law Project, Charlotte Kilroy QC, Tony Vaughan if Garden Court Chambers.
“Home Office removal window makes access to justice ‘practically impossible’”. Read the Law Society Gazette article.
“A Home Office policy which gives people as little as 72 hours’ notice before they are deported from the UK is a barrier to justice and has led to a series of unlawful removals, lawyers warn. Ministers have had to return a number of deportees back to the UK after they were removed under the “removal notice window” (RNW) policy, which gives individuals between 72 hours and seven days’ notice that they can be removed without further warning at any time.” Read the Independent article.
Anthony’s story: There was no warning at all
“I came to the UK from Jamaica in 1988 when I was 22 years old. When the Home Office tried to remove me in 2017, I had lived in the UK for nearly 30 years, I had indefinite leave to remain and a son at University.”
Read Anthony’s story in The Justice Gap article here.
The next stage of Medical Justice’s legal challenge to the Home Office removal notice window (RNW) policy will be heard on Tuesday 7 July in the Court of Appeal.
Lawyers for Medical Justice say that the ‘no-warning’ practice prevents those affected by the removals policy from having a fair chance to put their case forward and has led to a series of deportations which the Home Office has acknowledged were unlawful.
“Tens of thousands may have been affected.” Emma Ginn, Medical Justice
“The cases in which we have acted are the tip of the iceberg.” Rakesh Singh, Public Law Project
The removal notice window
Under the RNW, individuals are given between 72 hours and 7 days’ notice that they can be removed without further warning at any time during the following 3 months.
In order to challenge their removal – which could be as soon as 3 days after being given the notice – those subject to a RNW must:
- Find an immigration lawyer
- Make representations explaining why they should be allowed to stay in the UK
- Wait for the Home Office to decide their application
- If refused, find a lawyer to challenge that refusal, and
- In some cases it may be necessary to obtain an injunction to prevent their removal.
Public Law Project solicitor Rakesh Singh says it is practically impossible to go through all of these steps in the time allowed. He said:
“This case is about access to justice. Under this policy, the notice period can be so short that it is impossible for the individual to exercise their legal right to challenge a removal decision.
“I have represented people who were unlawfully detained and removed from the UK because this policy simply denied them the opportunity to put their case before a court. The Home Office has had to return several of our clients who were removed under the RNW policy.
“We represented a man affected by the Windrush scandal who had legitimately lived and worked in the UK for nearly 30 years. He was subject to a RNW and was unable to find a lawyer. It was by pure luck that he avoided removal. His family came across me by chance and since he couldn’t find another lawyer I agreed to represent him. But on the same day he was told that he would be put on a plane in less than 48 hours. We applied to the court the day before his removal for an injunction and it was granted. All the individuals we represented who the Home Office had to bring back to the UK now have leave to remain. But such cases are rare. In most cases if a person is wrongly removed they may never return to the UK.
“The Home Office disclosed to the court in a previous hearing that between 2015 and 2018 they carried out over 40,000 enforced returns. The Home Office was not able to tell us exactly how many of these were ‘no-notice’ removals, but said that ‘the majority of returnees . . . would have been served with a RNW’.
“The cases in which we’ve acted are the tip of the iceberg. This is an unjust policy which can have a terrible impact on people’s lives.”
Emma Ginn of Medical Justice said:
“The consequences of this policy are devastating for the individuals involved and for their families and loved ones. Detention and removal often involve lengthy or permanent separation of families and people being sent to countries where their lives are at risk.
“The Home Office failed to monitor the operation of the policy for years. It cannot truly say how it has used the RNW policy, what impact the policy has had on access to justice or how many people have been affected by it. Tens of thousands may have been affected.
“Cases where people are removed from the UK without access to legal advice are particularly concerning. As well as the grave implications for access to justice, such cases are unlikely to be detected or reported by any organisation independent of the Home Office. This makes it difficult to know the true extent of the policy’s impact.”
“Some cases have only come to light when removals have been aborted by chance.”
Medical Justice argues that the RNW policy is unlawful because:
- It poses an unacceptable risk of interference to the constitutional right of access to justice
- It is irrational as the policy’s stated goal of ‘raising a claim or challenge at a stage when it can properly be considered’ cannot be achieved
- It breaches EU law protecting the right of access to the court:
- The “Dublin III Regulation” requires individuals to have access to free legal advice and the court before they can be removed to the EU member state responsible for considering their claim
- The Procedures Directive taken with the EU Charter of Fundamental rights requires the right of access to court in a range of asylum decisions
- It breaches the prohibition on torture or inhuman or degrading treatment or punishment (Article 3) and the right to a private and family life (Article 8) under the European Convention on Human Rights (ECHR), which also can require the right of access to the court in removal cases.
Medical Justice’s barristers are Charlotte Kilroy QC of Blackstone Chambers, Alison Pickup, PLP’s Legal Director and Tony Vaughan of Garden Court Chambers. The instructing solicitor is Rakesh Singh of PLP.
- The court placed an injunction on the Home Office use of the RNW policy in March 2019. That injunction is still in effect. This hearing is to appeal a ruling by the Administrative Court in September 2019.
- This Court of Appeal hearing ties together challenges brought by Medical Justice, represented by Public Law Project, and FB, an individual who faced removal under the policy, represented by Duncan Lewis Solicitors.
- FB’s barristers are Sonali Naik QC and Ali Bandegani of Garden Court Chambers and Alex Goodman of Landmark Chambers, instructed by Toufique Hossain, Raja Uruthiravinayagan and Philip Armitage of Duncan Lewis solicitors.
- The Equality and Human Rights Commission has filed a written intervention supporting the appellants’ human rights argument, with the permission of the court.
- The EHRC is represented by Stephanie Harrison QC and Shu Shin Luh of Garden Court Chambers, instructed by Sara Brunet at the EHRC.