On 14 March the High Court suspended the Home Office’s removals policy. The decision means that the system of giving migrants “removal windows” within which they can be removed from the UK without warning will be halted for the time being.

Mr Justice Walker, in a case brought by the charity Medical Justice challenging the policy, granted interim relief suspending the removal window system until the case comes to a full hearing.

Removal window notices state that the individual can be removed at any time within a three month period, rather than giving the person notice of the specific time at which they will be removed. Medical Justice says that the system is unlawful.

Because of the injunction, 69 people who were due to be removed using removal windows can no longer be removed immediately. They will have to be served with proper notice of removal directions. Hopefully many of them will be able to obtain legal advice and challenge the decision to remove them.

The High Court interim decision

Giving written reasons for the decision, Walker J said:

there is apparently cogent evidence [from Medical Justice] that individuals who had good grounds to challenge removal were exposed to the risk of being removed without any ability to explain those grounds. On the face of those case studies there appears to be strong reason for a real concern that the policy unjustifiably impedes access to justice.

The judge added that a similar injunction was granted in the 2010 case now being called Medical Justice 1 [2010] EWHC 1925 (Admin). In that case, the High Court declared that parts of the removals policy in force at that time were unlawful. The decision was upheld on appeal.

A full hearing in Medical Justice’s latest challenge will be heard this summer.

What is the removal window policy?

Background

The removal window policy is the product of a longstanding tension between the Home Office, the courts and people subject to removal.

First and foremost, individuals subject to immigration enforcement are entitled by law to notice of the decision to remove them and to a reasonable opportunity to obtain legal advice to challenge it. These requirements are based on the rule that administrative decisions do not take effect until the affected individual has notice of the decision (see R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36) and the common law right of access to justice.

Secondly, the High Court and the Upper Tribunal want to minimise the number of urgent injunction applications they have to deal with. These are generally brought by people who have had little notice of the decision to remove them. The courts have an interest in people being given plenty of notice of removal decisions to allow more challenges to be resolved through pre-action correspondence with the Home Office or ordinary judicial review claims.

Finally, the Home Office wants to make it as easy as possible to remove people, which means they want to give each person as little notice as possible and ideally detain and remove them on the same day. This is partly to reduce the length of time that people are detained before being removed from the UK. But as we know from the Windrush scandal, Home Office officials have had removal targets and it is therefore in their interest to make it more difficult for people to challenge removal decisions so more people are removed from the UK.

The 72-hour rule

It is accepted practice that people should be given 72 hours’ notice of a removal decision to allow them to challenge it. Unusually, this protection does not derive from legislation or a judgment of a court, but from an arrangement between the High Court and the Home Office. This “Concordat” has been in place, with various modifications over the years, since July 1999.

In countries with a codified constitution, discussions of this kind between the executive and the judiciary about the content of executive policy would risk being judged unconstitutional. The existence of this agreement undermines the courts’ claim that judges only review the lawfulness of Home Office policy rather than interfering with its content. It would be better if the Home Office consulted with Parliament to decide questions of policy concerning fundamental rights.

At any rate, the position a few years ago was that, according to Home Office guidance, “72 hours must always be provided between an individual being served immigration papers and the actual removal”.

The removal window system

But in April 2015, the removal window policy was introduced to force people to challenge immigration decisions at the time they were issued with them, rather than waiting until faced with immediate removal. A Home Office official describes the effect of the change:

The minimum 72 hour notice period was brought forward to the time when the individual was notified of their liability to removal in order to allow sufficient time for the Secretary of State to consider any issues raised at an earlier point rather than waiting until the actual removal directions… had been made and then potentially having to cancel the removal.

That might sound acceptable in principle, but it quickly caused problems because:

• The notice of removal window was hidden in the midst of lengthy immigration decisions so some people did not even realise they had been threatened with removal.
• Letters containing notice of removal windows were served but not actually received, so people were detained and removed without any actual notice.
• The Legal Aid Agency refused to accept emergency applications made by people served with removal windows rather than removal directions.
• Courts refused to accept urgent applications for injunctions challenging removal windows.
• Unnecessary removal windows were served on immigration detainees who the Home Office did not actually plan to remove in the foreseeable future, which caused unnecessary anxiety.
• Unnecessary removal windows forced lawyers to prepare fresh claims and judicial reviews with artificial urgency and less time to obtain evidence.
• The Home Office failed to ‘close’ removal windows once a barrier to removal was in place i.e. the person had submitted a fresh claim.

Although the policy retained the requirement of 72 hours’ notice before the removal window opens, the practical implications of it undermined the agreement between the Home Office and the courts.

Nonetheless, in November 2018, the Upper Tribunal upheld the lawfulness of the removal window policy. The case was called R (FB and NR) v Secretary of State for the Home Department [2018] UKUT 428 (IAC). The tribunal did make some findings of unlawfulness in relation to the failure to confirm when removal windows had been deferred, and failure to provide information about the proposed route and place of return on the notice of removal window. These findings led to the policy being amended.

The effect of the new injunction

When granting the current injunction, Walker J noted the decision of the Upper Tribunal, but distinguished it because Medical Justice had provided new evidence of the problems caused by the removal window policy:

In FB the tribunal examined anecdotal evidence in two categories of case falling within the RNW policy. In the present case, however, [Medical Justice] relies on case studies concerning a much wider range of categories within the RNW policy. Among others, details of 11 case studies are set out in a witness statement which I shall refer to as Navarete 1. In each of them there is apparently cogent evidence that individuals who had good grounds to challenge removal were exposed to the risk of being removed without any ability to explain those grounds. On the face of those case studies there appears to be strong reason for a real concern that the policy unjustifiably impedes access to justice.

The injunction granted by Walker J does not stop anyone being removed, but it does require them to be given notice of the actual time at which the Home Office proposes to remove them. It will be of great relief to many people currently subject to removal windows and frantically trying to prepare a fresh claim or judicial review. It will also help lawyers who will now have greater certainty about when the Home Office actually intend to remove their clients, which will allow them to prioritise. Finally, Walker J will receive the thanks of his judicial colleagues, who will have fewer urgent injunction applications to consider because people will have more time to challenge immigration decisions.

The substantive judicial review will be heard in June or July 2019. An earlier version of this article stated that there would be a hearing in the week beginning 8 April, as stated in the judge’s written reasons, but Medical Justice tell us that is incorrect.

The Public Law Project is acting for Medical Justice in this case. Counsel are Charlotte Kilroy QC and Alison Pickup.

This article was originally published on 15 March and has been updated with more information on removal windows, and subsequently to correct the date of the substantive review hearing.