On 7 July 2020, Medical Justice, a charity which provides independent medical and legal advice to immigration detainees, presented a legal challenge to the Court of Appeal.
This challenge concerned the Home Office’s “no notice” immigration policy, which it says breaches the European Convention on Human Rights, and the “Dublin III Regulation”.
While the High Court ruled that policy was lawful in 2019, many argue that the 72-hour time-limit prevents detainees from obtaining access to justice and deem the policy “inhumane”.
The “removal notice window” (RNW) policy was introduced back in 2015, and allows the Home Office to inform an individual that they are liable to removal. During this RNW period, the individual is given a short period where they cannot be deported. For those who are detained, this is 72 hours. Those who are not detained when issued the RNW are given seven days. Within this period, an individual can legally challenge the removal. However, if they are unable to successfully challenge the decision, they can be deported at any given point during a three month removal window, without warning.
This amendment saw changes to the former legal obligation, which provided “courtesy letters,” outlining the specific date when a deportation would take place, along with the details of the time, and the flight number.
In 2018, Duncan Lewis, a solicitors firm with specialities in immigration, issued a legal challenge against the Home Office, claiming that the removal policy was “ultra vires,” if it did not provide “sufficient flexibility” to guarantee “the right of access to legal representation and the courts to challenge removal”. After the judicial review was heard in the Upper Tribunal, the Home Office released new guidance around deferral periods.
This guidance outlined: “Whether or not they are detained, individuals must be allowed a reasonable opportunity to access legal advice and have recourse to the courts. The purpose of the notice period is to enable individuals to seek legal advice”. Further to this, it added: “Each case for extending the notice period must be considered on its individual merits”.
Again, in 2019, the policy was challenged by Medical Justice, represented by the Public Law Project (PLP). In this challenge, the charity raised concerns about the lawfulness of the policy, and argued that it had “devastating” consequences.
After being presented with multiple cases where individuals had been barred from accessing justice, Mr Justice Walker granted an interim relief suspending the policy on 14 March 2019 due to concerns that the policy “unjustifiably impedes access to justice”. However, in September 2019, the High court ruled that the policy was lawful.
In his ruling, Mr Justice Freeman said: “It is not a question of denying access to justice because of the need to be able to devise and operate an effective and lawful system of immigration. It is a question of understanding what access to justice means. It does not mean that the courts can be accessed at any time and without any restriction”. He concluded that the policy contained “a whole series of safeguards”.
According to the PLP, between 2015 and 2018, the Home Office oversaw 40,000 enforced returns. The majority of these deportations saw individuals issued with an RNW. As a result, they were given only three to five days warning, that they would have to leave their homes at any time, within a three-month period.
Since the policy’s introduction, there have been multiple instances where individuals have been illegally detained, and threatened with deportation, or even wrongly deported.
The Independent reported the case of one man, a Jamaican national, who had lived in the UK, legally, for 30 years. He was faced with unlawful detainment and threatened with deportation in 2017.
After losing his passport, the man approached the Home Office for a new stamp, certifying that he had indefinite leave to remain. Instead, the man was robbed of his immigration status, taken away from his home, and placed in a detention centre, because the Home Office has lost his records.
Following this, he was faced with two weeks of unlawful detainment, whereby his phone was confiscated, meaning he was unable to contact anyone. He was also left completely bewildered when presented with paperwork and no assistance to help with his dyslexia. With two days until deportation, the man’s partner found a lawyer who obtained an injunction. As a result, the man was able to prove he had indefinite leave to remain since 1990.
Reflecting on his ordeal, the man said the process was both “unjust” and “inhumane”: “Everything about the process was wrong. After living here lawfully for nearly 30 years I was placed in detention with nobody to explain what was happening. I had very limited contact with the outside world and no legal help from inside detention. I just hope that nobody else has to go through what I did”.
Speaking about the case, Rakesh Singh, a Solicitor at the PLP, said: “I have represented people who were unlawfully detained and removed from the UK because this policy simply denied them the opportunity to put their case before a court. We represented a man affected by the Windrush scandal who had legitimately lived and worked in the UK for nearly 30 years. He was subject to a RNW and was unable to find a lawyer”.
He added: “It was by pure luck that he avoided removal. His family came across me by chance and since he couldn’t find another lawyer I agreed to represent him. But on the same day he was told that he would be put on a plane in less than 48 hours. We applied to the court the day before his removal for an injunction”.
Appealing the 2019 ruling, the PLP, acting for Medical Justice, brought forward its case against the Home Office to the Court of Appeal.
It argues that the time period given to appeal a deportation decision is far too short for an individual to complete the necessary steps. Between 72 hours and seven days, an individual must find an immigration lawyer to represent them and make an application to the Home Office. Upon receiving a response, they must then potentially acquire a lawyer to challenge this, and in some cases obtain an injunction.
Solicitor Rakesh Singh, said that there is just not enough time given for an individual to successfully complete these steps. As a result, the charity argues that the policy contravenes Article 3 and Article 8 of the European Convention on Human Rights, as well as, the “Dublin III Regulation”. This regulation requires that individuals have access to free legal advice and the court, prior to being forcefully deported from the country.
Commenting on the case, he added: “This case is about access to justice. Under this policy, the notice period can be so short that it is impossible for the individual to exercise their legal right to challenge a removal decision”.
Emma Ginn, Director of Medical Justice said that the policy has devastating consequences for the individuals deported, as well as their loved ones: “Detention and removal often involve lengthy or permanent separation of families and people being sent to countries where their lives are at risk”.
Concerned that the number of people being wrongly removed from the UK might actually be much higher than reported, she added: “Cases where people are removed from the UK without access to legal advice are particularly concerning. As well as the grave implications for access to justice, such cases are unlikely to be detected or reported by any organisation independent of the Home Office. This makes it difficult to know the true extent of the policy’s impact”.
A Home Office spokesperson said: “As legal proceedings are ongoing, it would be inappropriate to comment”.