Have a question?
033 3772 0409

Public Law Solicitors

Removal without notice in the ^best interests^ of Claimants ruled unlawful (19 March 2010)

Date: 19/03/2010
Duncan Lewis, Public Law Solicitors, Removal without notice in the ^best interests^ of Claimants ruled unlawful

The linked judicial reviews of the decisions of the Secretary of State for the Home Department by T and M [2010] EWHC 435 (Admin) were heard before Collins J on 18 February 2010 and the judgement is now available on BALLI . This case will clearly be of great importance to Immigration and Public Law Practitioners in so far as it impacts upon the position of unaccompanied minors and the Dublin Convention. However the focus of this article is upon the findings of Mr Justice Collins in relation to same day removal.

It is important to note at the outset as clearly appears in the judgement that this decision is only a permission decision and as such has only persuasive authority. However the trenchant terms in which Collins J expressed himself give rise to a real hope that the long standing abuse of the removals procedure by the UKBA will finally be curtailed.

It is well known amongst Immigration Practitioners that in general Claimants and their advisors are given notice of a decision to remove. The standard period for notification is that it will be a minimum of 72 hours and include these two working days before removal. However an iniquitous aspect of this policy has been the subset of cases where the Secretary of State has reserved to himself the right to decide that it is not in the ‘best interests’ of the Claimant to inform them that the removal is imminent.

ILPA been pushing hard to try and persuade the UKBA and Secretary of State there will rarely, if ever, be a case where can truly be said it is not in the best interests of a Claimant that their advisor at minimum is aware that they are due to be removed. Representations were made when the previous Operational Enforcement Manual was replaced by the current Enforcement Instructions and Guidance (EIG) and before the updating of enforcement instructions on 11th January 2010. Despite the best efforts of all involved the Secretary of State would do no more then give bland assurances that it would only be in the most exceptional of cases that decisions to remove without notifying the Claimant or the representatives would be made and only when the file have been looked at carefully to ensure that it was truly in the best interest of the Claimant. The cases of T and M demonstrate to those who needed convincing that the Secretary of State is unable to live up to his warm words.

The specific policy that the Secretary of State was applying in these two cases can be found in Section 3.1.2 of the EIG which states that with regards to children “You may not need to provide standard notice of removal directions prior to removal where you believe it is not in the best interest of unaccompanied children because of an abscond risk. This must be considered in liaison with Children’s Services and the receiving country.”

It appears that in this particular case the Secretary of State took the decision that, given that there is a free standing policy that children should not be detained unless absolutely necessary and then only overnight, the sensible thing to do in these two cases was to descend upon the Claimants early in the morning and take them straight to the airport during which process they were “given no opportunity whatever of contacting anyone.” This was despite the fact that as Mr Justice Collins commented in the case of T “it was known, because they have been contact with the person then with the children’s champion, that they were concerns raised about her well being.”

Duncan Lewis have always had the strongest reservations of this in respect of this policy that were underlined in a case managed under the previous enforcement regime (which had essentially identical guidance on this point). In this case a family were removed essentially without notice on the basis that one of them had threatened to self-harm) despite the fact that we had written to the Secretary of State pointing out that there was country guidance pending in the Court of Appeal as to whether there should be any enforced removals to that country and that full representations would be made once the judgment was promulgated. It may well be doubted that a same day removal was in the interests of those applicants.

Collins. J at paragraph 5 of his judgement has made his views entirely plain: “I have no doubt whatever that the manner of removal, done as it was on the same day without any opportunity for the minors to contact any lawyer or indeed any Social Worker or anyone else who may be able to assist, was unlawful. Indeed it seems to me at the moment that the country is simply not capable of any sensible argument. As soon as the same day removal is reconsidered and hopefully abolished the better.”

He does acknowledge that there may be cases in which there are genuine fears of absconsion and he goes on to make the very points that was made by ILPA that detention would be the lesser of two evils “If there is such a concern then, as it seems to me, the interest of the child in being able to contact advisors must prevailed over the question of detention, which after we need not be in a severe unit, if I may put it that way. There are surely arrangements that can be made that any such detention is, for example a local authority or secure accommodation, or some secured accommodation which the Home Office could arrange. I can see in a considerable justification for same day removals in the social circumstances that we have seen any of the cases.”

Of further interest in the same judgement are his later comments at paragraph 6. “The guidelines issued by the Secretary of State very properly make the points … now contained in Section 55 of 2009 Act, that the welfare of a child is an important consideration and must be taken into account. How it could conceivably be suggested that it was in the interest and welfare of the child’s act in the way that was done in this case is entirely beyond me.”

It is to be hoped that the Courts will continue to refer to the provisions of Section 55 of 2009 Act and the guidance given by the Immigration minister (see the article on S vs SSHD elsewhere in this newsletter) and hold the Secretary of States to his declared policy in respect of children’s welfare. This is far from being the only sort of case in which the welfare of children does not appear to have received sufficient attention and the comments of Mr Justice Collins in this case give rise to a hope that the Courts will be more ready to insist that decisions must be taken with the welfare of the child being taken into account.


For all Public Law related matter contact us now.Contact Us

Call us now on 033 3772 0409 or click here to send online enquiry.
Duncan Lewis is the trading name of Duncan Lewis (Solicitors) Limited. Registered Office is 143-149 Fenchurch St, London, EC3M 6BL. Company Reg. No. 3718422. VAT Reg. No. 718729013. A list of the company's Directors is displayed at the registered offices address. Authorised and Regulated by the Solicitors Regulation Authority . Offices all across London and in major cities in the UK. ©Duncan Lewis >>Legal Disclaimer, Copyright & Privacy Policy. Duncan Lewis do not accept service by email.