By Miranda Zeffman
On October 20th, the Court of Appeal ruled that a Home Office policy giving migrants just 72 hours’ notice of deportation was unlawful. The ‘Removal Notice Window’ (RNW) policy, originally implemented in April 2015, has been under an interim injunction since March 2019 pending a review by the courts. More than 40,000 people have been removed under its provisions, some of them members of the Windrush generation. In a unanimous decision published on 21st October, the court ruled that the policy impeded access to justice by providing “no adequate opportunity – or, indeed, any opportunity at all for the individual to take advice and lodge a judicial review challenging that decision”.[1] The policy was quashed.
Who challenged the policy and on what basis?
The RNW policy was challenged by Medical Justice, an independent charity working to defend the health rights of immigration detainees. In seeking an interim injunction, it prepared a series of case studies in which it alleged that detainees had been denied access to justice. One case study involved a man who had come to the UK from Jamaica as part of the Windrush generation. He had since married, had a child and been granted indefinite leave to remain. In 2017, the Home Office arrested him and served him with a ‘removal notice window’. Although the man was unable to access legal advice from the immigration removal centre, his ex-partner engaged a solicitor who obtained over 500 pages of evidence confirming his right to remain. According to Medical Justice, “this could definitely not have been complied within 72 hours.” Another case study included the suicidal father of a British child who was told to attend an interview that never took place. The man was instead detained and removed with no access to a legal representation. In both cases, the Home Office brought the men back to the UK and accepted that their removal had been unlawful.[2]
The policy: a closer look
Under the RNW policy, officials told failed applicants – including asylum seekers, economic migrants and people making other claims – that they had between three and seven days to make final representations. Detainees were given 72 hours, whereas those who were not detained were given one week. Following this window, people could be flown out of the UK at any time during the following three months. Whereas previous policies required the Home Office to give additional notice – such as the time, date and flight number of the removal – the RNW policy enabled them to deport people at any time without providing further information. A spokesperson for Medical Justice said that the policy had “denied justice on a massive scale, causing serious harm to extremely vulnerable people and risking life.”[3]
Tensions rising
The October ruling is the latest in a series of events that have stirred up tension between the Home Office and lawyers. In August, the Home Office accused “activist lawyers” of abusing immigration regulations in an attempt to undermine deportation decisions.[4] Several legal bodies responded with statements condemning the attack, with both The Law Society and The Bar Council alleging that the Home Office had sought to undermine the rule of law. Home Secretary Priti Patel, apparently undaunted, doubled down on her accusations at the Conservative Party Conference in early October. She equated “the do gooders, the leftie lawyers, [and] the Labour Party” with “traffickers”, arguing that their immigration and asylum work “defend[s] the indefensible.”[5] Her comments were echoed in the Prime Minister’s keynote speech, which denigrated “lefty human rights lawyers and other do-gooders.”[6] October’s ruling might have inflamed tensions further, not least because Lord Burnett of Maldon seems to have waded into the row. In paragraph 178, he criticised “a minority of lawyers” who make “vexatious”, “abusive” or even “fanciful” late legal challenges in an attempt to block deportations.[7]
What next?
Commenting on the Court of Appeal’s decision, a spokesperson for the Home Office reiterated its determination to introduce a new system that would speed up the removal of migrants with no claim for legal protection. Medical Justice is more hopeful: “One of our society’s most precious treasures is access to justice […] Quashing the policy brings us back towards equal access to justice for all.”[8]
[1] https://www.judiciary.uk/wp-content/uploads/2020/10/Med-Justice-v-SSHD-judgment-211020.pdf
[2] http://www.medicaljustice.org.uk/high-court-suspends-unscrupulous-policy-of-removing-unwanted-migrants-from-the-uk-without-warning/
[3] http://www.medicaljustice.org.uk/high-court-suspends-unscrupulous-policy-of-removing-unwanted-migrants-from-the-uk-without-warning/
[4] https://www.lawgazette.co.uk/news/activist-tweet-deleted-as-number-10-targets-loudmouthed-lawyers/5105445.article
[5] https://www.conservatives.com/news/home-secretary-priti-patel-fixing-our-broken-asylum-system
[6] https://www.conservatives.com/news/boris-johnson-read-the-prime-ministers-keynote-speech-in-full
[7] https://www.judiciary.uk/wp-content/uploads/2020/10/Med-Justice-v-SSHD-judgment-211020.pdf
[8] https://www.theguardian.com/politics/2020/oct/21/appeal-court-quashes-uk-policy-of-removing-migrants-unlawfully
