At Renaissance Chambers we have been involved with a number of recent Afghani and Pakistani (Ahmadi) charter flight cases and injunctions. I have noticed a couple of things that are troubling me. Firstly some of the factual immigration summaries prepared by the Home Office omit references to previous fresh claims made and give an impression to an Administrative Court judge that nothing is pending in a case. I have also noticed that decisions in relation to fresh claims made in good time are faxed over to the court first and then faxed to claimant solicitors after the judge has made a decision on the papers, despite the fact that the decision has not been seen by the claimant or solicitor. I can understand this where the claim may have been made very last minute but there is absolutely no justification for it when the fresh claim had been made before removal directions have even been set. For a charter flight to be justified, there have to safeguards for the individual. As the ECtHR held in Conka v Belgium (Application no. 51564/99):

“59. The Court reiterates its case-law whereby collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group (see Andric v. Sweden, cited above). That does not however mean that where the latter condition is satisfied, the background to the execution of the expulsion orders plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4”.

Each individual case must be examined with an open mind rather than producing a decision that will rubber stamp a group removal. The fact is that many of those who are taken off a charter flight go on to win their appeals. But what about those unable to access a lawyer in time?

Classifying a proposed returnee as suitable for removal by way of charter flight has draconian consequences which are unique to judicial review claimants in immigration and asylum. A claimant has to obtain a Court Office reference and obtain a stay. This is a consequence of the Home Office’s non suspensive policy on judicial review. This is a policy that has dropped out of the air and has received no parliamentary scrutiny. But the effect of the policy is to close the door of the High Court to many immigration and asylum claimants.

The Home Office justify such a policy on the basis that last minute abusive applications undermine effective immigration control. The problem with the policy is that it lets the Home Office off the hook in meaningfully considering decisions or making any decisions because the Admin Court is made to act as a filter screening out the weak cases and granting a stay to the good ones. This means that the primary decision makers are in effect the judiciary and not the Home Office. As with the constant pushing of apparently minor procedural points by the Home Office (decisions served on court then claimant, unsolicited representations to court before charter flight cases but not sent to claimants) this has important adverse constitutional implications in terms of the separation of powers.

If a stay is required, then in reality the initial judicial review application is made in the stay application. A stay is supposed to preserve the status quo applying the American Cyanamid principles. But that is not what happens. Judges decide the substantive merits of the claim in a stay application. This acts as a bar to proper access to the courts. It is hard to see how a properly formulated judicial review application raising legitimate concerns can be addressed in the court of emergency applications. This procedure is then complicated by the increasing practice of the Home Office sending their decisions to the court directly before sending it to the claimant.

A decision has no legal effect until it has been received. In the House of Lords judgment in the House of Lords judgment in Anufrijeva [2003] UKHL 36, the legendary Lord Steyn put it like this:

“The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech,[1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.

27.     What then is the relevance of this dimension for the present case? The answer is provided by Lord Hoffmann’s elegant explanation of the principle of legality in the Simms case. He said, at p 131 E-G:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document”.

This principle may find its primary application in respect of cases under the European Convention on Human Rights. But the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann’s dictum applies to fundamental rights beyond the four corners of the Convention. It is engaged in the present case.

28.     This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible. But it is difficult to visualise a rational argument which could even arguably justify putting the present case in the exceptional category. If this analysis is right, it also engages the principle of construction explained by Lord Hoffmann in Simms.

The law is the law is the law, even for asylum seekers. The Home Office is testing this erosion of rights on a class of people not well regarded by many at this current time. But if this erosion continues, judicial review as a means of scrutiny will have lost its moral and legal force and this will impact on other unpopular members of our society who may also find the doors of the court closed in their faces.