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Basic procedural fairness applies even when removal windows used


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The High Court has issued a helpful reminder to the Secretary of State that basic rules of procedural fairness continue to apply, even in the thorny context of removal windows and detention. In R (AT & Ors) v Secretary of State for the Home Department [2017] EWHC 2714 (Admin), HHJ Walden-Smith also refused to allow the Secretary of State to participate in proceedings for failing to comply with the CPR and with a court order, with another polite reminder that:

The Court of Appeal made it clear in R (Hysaj) v SSHD [2015] 1 WLR 2472 that there were no special rules for public authorities in public law cases…

This second point is to be addressed in a separate written judgment, not yet published.

Procedural fairness, removal windows and detention

AT was a Gambian overstayer who was in a relationship with another Gambian national; the couple have a child. He was removed following a period in detention during which the court accepted that he was without legal representation and had difficulty accessing information.

HHJ Walden-Smith took this into account in considering the Home Secretary’s obligations to operate under fair procedures. Where the Secretary of State based her decision on scepticism about AT’s relationship, she:

fell into error by failing to give AT a proper opportunity to provide further evidence to counter the concern that this was not a genuine and subsisting relationship where they intended to live together permanently in the UK.

It was incumbent upon her to take into account the reality of AT’s situation:

As AT was without legal representation and detained he cannot be expected to know what the SSHD expected from him as additional evidence when he had provided evidence of his marriage. Further, he cannot be expected to know, without the SSHD explaining it to him, that he would have submitted further evidence upon receipt of the Decision Letter.

The court found that had AT been able to access legal representation he would have been able to judicially review the decision and prevent his removal. HHJ Walden-Smith also accepted that the practice of using removal windows (AT was notified of his removal the day before it occurred) creates significant issues for access to justice:

The very real practical difficulty for AT was, as has been set out by Silber J in R (oao Medical Justice) v SSHD [2010] EWHC 1925, in obtaining “proper” access to justice in such a short time frame.

The judgment highlights the problems caused by the use of detention and removal windows in concert, which effectively render individuals unable to access legal advice.

A chilling picture

We will no doubt see more cases like this one for as long as the Secretary of State tries to remove people without allowing them to properly address (potentially valid) concerns or questions about the evidence supporting their Article 8 claim. In this case, the court’s task was perhaps made easier by the fact that the decision-maker had quite obviously erred in suggesting new submissions made by AT did not significantly differ from material previously considered:

That statement is plainly incorrect. All parties agree that both AT and FF failed to mention their relationship, the marriage, the living together in FF’s home and the pregnancy until AT was unexpectedly arrested on 26 September 2016.

The fact remains that AT was actually removed. While his return was secured through the Public Law Project, which has a specific project looking at the Home Office’s removal window policy, others in this situation may not be so fortunate. The court arrived at the right decision, but the quotes above paint a quite chilling picture of the routine denial of access to justice caused by current practice in detention and removals.

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Chai Patel

Chai Patel

Chai Patel is Legal & Policy Director at the Joint Council for the Welfare of Immigrants (JCWI). Chai joined JCWI in 2015. Prior to that he was in the Human Rights department at Leigh Day, working on abuse and human rights claims, and on the death penalty team at Reprieve, focussing on international strategic litigation, casework, and investigation.