The Court of Appeal has today declared unlawful an immigration policy that campaigners argued imposed too tight a timetable on people facing deportation for them to get proper access to justice.
Giving lead judgment in FB (Afghanistan) and Medical Justice v The Secretary State for the Home Department, Lord Justice Hickinbottom said the Judicial Reviews and Injunctions (JRI) Policy ‘was unlawful insofar as it gave rise to a real risk of preventing access to justice’.
Under the policy, individuals are given between 72 hours and seven days’ notice that they can be removed without further warning at any time over the next three months. Public Law Project, which represented Medical Justice, an appellant in the case, argued that to challenge removal, which could be as soon as three days after being given notice, those subject to the ‘removal notice window’ must find an immigration lawyer, make representations explaining why they should be allowed to stay, and wait for the Home Office to decide. If the application is refused, the individual must find a lawyer to challenge the decision.
Lord Justice Coulson said the JRI policy ‘does not allow sufficient opportunity for the individual to challenge (in court or tribunal) any adverse decision relevant to the removal which may have been made/notified during the removal window period itself’.
Medical Justice said today’s decision ‘brings us back towards equal access to justice for all’.
A spokesperson said: ‘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.’
Solicitor Rakesh Singh, of Public Law Project, which represented Medical Justice, 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.’
A spokesperson for the Home Office said: 'Our immigration and asylum system is fundamentally broken and we are determined to introduce a new system that is fair, firm and will expedite the removal of those who have no legitimate claim for protection.'
The Home Office pointed out that the removal window policy has not been operating since March 2019. It said the court found that the removal windows interfered with an individual's access to legal advice but did not find that removal windows were unlawful.