The reality behind “last minute” legal challenges to removal

Last week the Home Secretary expressed outrage at “vexatious, last minute claims” made by people seeking to prevent their removal to France. She is hardly the first Home Secretary to do so. These statements do not reflect the reality of the process, which has been designed by the Home Office in such a way that these challenges can only be lodged very shortly before removal.

The Home Office makes a lot of wrong and unlawful decisions. The department does not enjoy being held accountable and would no doubt very much prefer if they could remove people from the UK entirely untroubled by the legal system. This is why they have created a rushed process, which makes it as difficult as possible for people to be able to effectively access quality legal advice.

Below, I explain the reality of how the process works. Hopefully this will assist anyone who wants to push back on the Home Secretary’s rhetoric, as well as serving as a reminder to all that the removals process is inherently unfair. Anyone in favour of its use, let alone expansion, should put the need for early, quality legal advice as a non-negotiable priority. Otherwise they are simply advocating for an unfair system.

Arrival

Article 8 of the UK-France treaty gives the Home Office a maximum of 14 calendar days from the person’s arrival to submit an application for readmission to France. This means that the people targeted under the scheme are those who are newly arrived and the least able to navigate the asylum system.

People who arrive in the UK across the Channel are immediately detained. The vast majority will claim asylum and they will have a screening interview, usually on the day of arrival, to register their claim in which they will explain their journey to the UK and the basis of their asylum claim.

They will not have seen a lawyer and had any legal advice on what amounts to an asylum claim, or whether they may be a victim of trafficking (we will cover trafficking claims in more detail in a separate post), before this. It can often take between two to five weeks from arrival for the person to make contact with an NGO that can assist.

Notice of intent and inadmissibility process

A person who has claimed asylum can only be removed if their asylum claim is deemed inadmissible. We have a detailed briefing on how the inadmissibility process works. Where the Home Office thinks they may be able to make an inadmissibility decision, they will issue the person with a notice of intent. Jed wrote an explainer of the notice of intent process when the Home Office tried to use this to send people to Rwanda.

There is a one week deadline for detained people to respond to the notice of intent. Extensions of time can and should be requested (we have an explainer on extensions of time and procedural fairness). The Home Office is apparently, rightly, being very receptive to requests for more time to respond to the notice of intent and granting 14 and 21 days extensions without requiring much evidence.

Ideally, a person would have a solicitor at the stage they receive the notice of intent but the reality is that it is only after receipt of the notice of intent that a person realises that there is a risk their claim will not be considered in the UK and seeks assistance, usually from an NGO in the first instance. The NGO will then try to help them find find a legal aid lawyer. Alternatively the person may try to access legal advice through the detained duty advice scheme.

Neither option is straightforward. Detention Action reports that only 28 of their 130 referrals to lawyers were taken on last year and despite the High Court rejecting a legal challenge, the issues with the poor quality of legal advice from some providers attending the detained duty advice scheme is well known in the sector.

The Home Office is very aware of this shortage of legal aid lawyers and the fact that the more notices they issue, the less likely it is that everyone who receives them will be able to access legal assistance in responding. Many inadmissibility decisions are being made where the person has not managed to access legal assistance or even respond to the notice of intent at all.

Removal directions

The next step after a claim has been deemed inadmissible and where removal is being pursued is that the person will be issued with removal directions telling them that they will be removed from the UK on a specific date. These decisions are being made very shortly after the inadmissibility decision.

The Home Office’s guidance is that they must give people only five working days notice of their removal from the UK (the Home Office previously tried to give even less time than this but the practice was held to be unlawful). Sometimes a bit longer than this will be given. A lot needs to be done in this time and unlike the notice of intent stage, it is not possible to get an extension of time from the Home Office.

Lawyers will generally prioritise these cases over less urgent cases. This means that this is the stage where many people will be able to access a lawyer for the first time, if they have been unable to do so before. This will take a day or so.

Take instructions and assess the merits of the case

The lawyer needs to get the legal aid forms signed. This generally includes a legal help form so that they can open a file to take instructions and assess the merits of the case, and legal aid forms where funding for a judicial review is needed. The latter includes a means assessment, an emergency application for legal aid funding, and the full application for funding.

The lawyer will need to speak to their client and take instructions and any evidence, and then consider whether there are any merits to challenging the decision to remove the person from the UK. For example, if the client is a child with removal directions for France, but the Home Office does not accept their age, then this is a potential ground of challenge given unaccompanied children cannot be returned to France under the treaty. It may be necessary to speak to a barrister at this stage in more complex cases.

Apply for legal aid

Once it is considered that there are sufficient merits in bringing a legal challenge to the removal, the application for emergency funding needs to be made to the Legal Aid Agency. Because of the cyber attack earlier this year, applications are submitted by email.

Then the lawyer needs to wait for emergency legal aid to be granted by the Legal Aid Agency. The current timeframe for a decision is 48 hours, although some decisions come much faster. There was also at least one case last week that had to be lodged without a grant of funding, which only came later. It is not unusual for lawyers to do this work at risk of it going unpaid.

There is no guarantee that funding will be granted. One lawyer reports that funding was refused in a case last week, despite strong access to justice arguments and counsel’s advice provided in support of the application. As is the case with the Home Office, the Legal Aid Agency does get decisions wrong sometimes.

Instruct counsel

Once funding has been granted, a barrister can be instructed to prepare the grounds for judicial review and interim relief. With removal cases, this work will usually be done in less than a day.

Lodge the application at the Upper Tribunal or High Court

The application for judicial review, including the relevant forms and grounds and fee if applicable, then need to be lodged with either the Upper Tribunal or the High Court, depending on the nature of the challenge.

In some types of removal cases, once a judicial review has been lodged at the court or tribunal, the Home Office will stop removal on that basis even before a judge has considered the claim. This takes some of the urgency and time pressures away.

However in cases where removal is to a “safe third country”, the Home Office will refuse to cancel removal unless interim relief in the form of an order preventing removal is issued by a judge. This means that lawyers must also make an application for interim relief along with a draft order and ask that the application be considered by a judge as a matter of urgency, by a specific time. Lawyers must explain and justify why urgent consideration is being requested. They will also need to explain when and how notice of the claim was given to the Home Office.

Decision

Interim relief may be decided on the papers, or the court or tribunal may decide that a hearing is necessary. For example the case of the Eritrean man last week involved a hearing in the High Court.

Where interim relief has been granted, the lawyer then needs to make sure that both the client and the right part of the Home Office are aware that a judge has granted an order preventing removal, so that the client is not removed in error. This often comes down to the wire – last week a child had made it all the way through security at Heathrow before his removal was cancelled.

There is a lot of additional work that needs to be done after the urgent applications, including the full application for legal aid and judicial review, but that is not relevant for the purpose of this post.

Conclusion

Some people can be lawfully removed to France, however others will have a valid basis for resisting removal. The issue is whether the system allows them to put these arguments forward. Currently, there is a very big question mark over whether this is the case.

The Home Secretary’s complaint is essentially that the removals system is working as intended by the Home Office. This is not the fault of lawyers, judges, or the law itself.