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UPDATE: Challenge to Legality of Removals Policy – Home Office further amends policy in response to Judgment (13 November 2018)

Date: 13/11/2018
Duncan Lewis, Immigration Solicitors, UPDATE: Challenge to Legality of Removals Policy – Home Office further amends policy in response to Judgment

The judgment in R (FB and NR) v SSHD (JR/9948/2017 and JR/9949/2017), was handed down on 31st October 2018. The Upper Tribunal (UT) found the Home Office removals policy (‘Judicial reviews and injunctions’, Version v15.0) to be unlawful in several respects, as detailed below. On 5 November 2018, the Home Office published a new revised version of the policy (v.17) implementing the Upper Tribunal’s findings.

The Challenge

The applicants in this case faced removal from the UK to Afghanistan. On 28th November 2017 they applied for permission to judicially review the decisions to remove them as well as the legality of the SSHD's removal policy (Chapter 60 of his Enforcement Guidance and Instructions, titled ‘Judicial Review and injunctions’, v.14). A centrepiece of this policy is that removal can take place during a 'removal window' (usually 3 months subject to extensions) without informing the person of the exact time and date removal will take place. The 'removal window' policy was brought into force in 2014. It has governed almost all enforced removals from the UK since then. This is the first legal challenge to it.

Broadly, the applicants argued:

  1. Those liable to removal must be given notice of removal directions (not just notice of their liability to removal) sufficient to enable them to bring a challenge, if so advised, based on the House of Lords decision in Anufrijeva and the High Court/Court of Appeal decision in Medical Justice);

  2. The policy is ultra vires as it denies access to justice i.e. the right of access to legal representation and the courts based on the test set down by the UK Supreme Court in Unison;

  3. The policy is not sufficiently flexible to cater for individual cases.

Amendments to policy

In light of (c), on the 21st May 2018, the SSHD made significant amendments to the policy as challenged, reflecting concessions made by the SSHD in the course of this litigation. The amended version (V.15) of the policy included a new section entitled “Consideration of deferral of removal” (see pages §§14-16). In general, it covered:

  1. Access to legal advice and the courts during the notice liability to removal period (usually 72 hours [if detained] or 7 days [if at liberty]);

  2. Deferring removal due to a change of legal representation;

  3. Deferring removal, in detained cases, where the person liable to removal has not had access to legal advice during the notice of liability to removal period; and

  4. Provision of all relevant documents to representatives upon request.

The applicants were granted permission to amend their claim to embrace a challenge to the policy as amended (v.15). The claims were then listed for a 'rolled up' hearing before the President of the Upper Tribunal (Immigration and Asylum Chamber), Lane J and UTJ O'Connor which took place on 25-26th July 2018.

The applicants supported an intervention by the Public Law Project who had been monitoring the 'removal window' policy since 2014.

The Judgment

In a judgment handed down on 31st October 2018 the UT granted the applicants permission to bring judicial review proceedings on all grounds but held that the SSHD's removal policy, as amended on the 21st May 2018 (v.15), was not ultra vires [§§160-161 of the judgment], it did not deny access to justice, and there was no requirement for notice of removal directions to be given in addition to receiving notice of their liability to removal [§51].

The UT also held:

  1. No declaration would be made that the removals policy, as initially challenged (v.14), was unlawful, as it had been superseded, even though the SSHD and the UT accept that it was “plainly and materially defective”.

The UT proceeded on the basis that the amended policy (v.15) was the subject of the challenge. It declared that:

  1. The policy is arbitrary and unlawful because use of "deferment" in the "Consideration of deferral of removal" section of v.15 lacks precision [§204];

  2. The policy is also unlawful in that, when the removal window is to be deferred, individuals are not given written notice stating when the removal window is to open and the length of that window (this must happen so there be no misunderstanding as to whether the deferral “eats into” the 3-month window) [§204]; and

  3. The policy fails to provide that the route and place of return must form part of the notice; especially when an applicant is to be returned to the "safe part" of a country [§§205-6].

The UT also noted:

  1. The respondent owes detainees a significant duty of care which may, depending on the facts, require a degree of proactivity on the respondent’s part in identifying whether there is evidence that the detainee is an 'adult at risk' [§201].

  2. Whilst it would not give relief, the UT suggested that the SSHD give serious consideration to whether a stronger test than 'reasonable prospect of removal' is required in order to extend the 3 month 'removal window’.

At the hearing, counsel for the SSHD stated that v.15 of the removal policy would be substantively amended again to reflect the UT's judgment. As mentioned above, this was done on the 5th November 2018. The new revised policy is now available on the Home Office website via this link.

The applicants have 21 days to apply to the UT for permission to appeal to the Court of Appeal.

Note: A slightly revised version (v.16) that was briefly available on the Home Office website was published prior to hand-down and did not incorporate the findings of the judgment.

The applicants were represented by Sonali Naik QC, Ali Bandegani (both of Garden Court Chambers), Toufique Hossain, Raja Uruthiravinayagan and Husein Meghji (Duncan Lewis Solicitors).

Acknowledgments

We are grateful to Bail for Immigration Detainees, Medical Justice, Women Against Rape, the Unity Centre, The Joint Council for the Welfare of Immigrants, Verne Visitors Group, Professor Katona (Helen Bamber Foundation) and Dr Bell (Tavistock Immigration Specialist Unit), Sheona York (Kent Law Clinic) and all the practitioners and NGOs who provided valuable ‘real world’ examples of the policy for our challenge.


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