The Court of Appeal has ruled that a Home Office policy of removal for those without the right to enter or remain in the UK is unlawful and denies irregular migrants their right to access justice.
To enter or remain in the UK, migrants must have leave (permission) to remain. Those who require leave to enter or remain in the UK but do not have it are termed irregular migrants. Under the Immigration Act 2014, the Secretary of State for the Home Department could serve a “notice of removal window” to irregular migrants (usually lasting 72 hours), after which a removal window of around three months would open. The migrant could be forcibly removed from the UK without any further warning at any time during this removal window. Medical Justice estimates that over 40,000 have been affected by this policy.
The case was appealed from the Upper Tribunal, and rested on two main grounds of appeal:
While the first ground was rejected, the second ground did persuade the Court of Appeal.
It was contended that, for a person’s rights to justice to be operational, sufficient time between service of a notice of a decision by the Secretary of State which puts an individual at the risk of removal and actual removal must be given so that the individual can find effective legal advice and launch an appeal.
The right was held by the Court to be infringed as, if the irregular migrant attempts to challenge the decision in the 72-hour notice period, the Home Office may then make decisions on this challenge during the removal window. This means that the individual could be removed hours or days after the adverse decision, leaving them no real chance to get effective legal advice and launch an effective appeal in a court or tribunal. They may also be left unsure as to what the timescale to challenge the Home Office’s decision actually is as you may be removed at any time within the three-month window.
Whether or not a migrant is removed before they have a chance to obtain advice and apply to the court is arbitrary and down to pure “happenchance”. The fact that many migrants are not removed prior to accessing justice was found to be despite the policy; not as a result of it. The Court thus concluded that the policy left a real risk of preventing access to justice and allowed the appeal, but on this ground alone.
The judgment means that the removal window has been suspended, and that the Home Office has to use removal directions which specify the day and time of removal. If the Home Office are able to update and implement the removal window policy so that it enables access to the courts, then it will once again be operational, as the removal window was not found to be inherently unlawful.
This decision represents an important step towards securing the fundamental rights of migrants and contains a welcome reminder of the importance and inviolability of the right to access a court.
Stella Maris Solicitors LLP are expert immigration solicitors. If you are worried about your immigration status, want to appeal a Home Office decision or are looking to make a visa application, we can help. To contact us, telephone 01793 296118 or email firstname.lastname@example.org.
 R (On the Application of FB (Afghanistan) and Medical Justice) v Secretary of State for the Home Department  EWCA Civ 1338.
 Ibid, para 145.