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Public Law Solicitors

Home Office cannot lawfully require foreign nationals to state to officials from their home country that they are willing to return (19 July 2016)

Date: 19/07/2016
Duncan Lewis, Public Law Solicitors, Home Office cannot lawfully require foreign nationals to state to officials from their home country that they are willing to return

The recent Duncan Lewis judicial review case of JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773 (Admin) saw Duncan Lewis Public Law & Immigration Solicitors James Packer and Kate Newman represent a Zimbabwean national claimant who was subject to deportation from the UK and placed in immigration detention immediately on the expiry of his sentence in May 2013.

The Home Office attempted to obtain an Emergency Travel Document (ETD) from the Zimbabwean High Commission which would allow them to remove the claimant to Zimbabwe. It is the policy of the government of Zimbabwe that they will only provide ETDs to nationals of their country of they are willing to return.

Regarding this case, James Packer said: “Once we became aware that my client was in danger of a second prosecution, Duncan Lewis issued a claim for judicial review of my client’s ongoing detention and the Home Office’s powers under s.35, and obtained an injunction from the High Court preventing the Home Office from attempting to progress the ETD application until the Court had ruled on whether section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 could make failing to state willingness to return to a foreign official an offence.”

Despite this obvious barrier to any removal taking place for some time, given that the claim for judicial review was not listed to be heard until July 2016, the Home Office continued to detain the claimant, so Duncan Lewis made a further interim application to the Court.

The Home Office then released him in May 2016, the day before that hearing was due to take place.

Mr. Justice Jay, well known to the public as counsel to the (Leveson) Inquiry into press standards, further stated that “any notion that section 35 could be used as many times as it takes is so Kafkaesque as to be inimical to the rule of law.”

The Home Office have indicated an intention to seek permission to appeal to the Court of Appeal.


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