Hot on the heels of this summer’s confected controversy over last minute legal challenges to removals of asylum seekers, the Court of Appeal has ruled that the Home Office’s ‘removal window’ policy is unlawful because it denies the common law right of access to a court. In a timely reminder to ministers and officials, the court held that “the right of access to a court is an absolute and inviolable right” which “is not a relative right to be balanced against other rights and interests, the convenience of the executive or the courts, or the risks of abuse of process”.

Some may bridle at the idea of migrants being entitled to legal protections. It was exactly that sort of thinking which led to the denial of the rights of the Windrush generation, who were wrongly alleged to be unlawfully resident and denied an effective right of challenge. Home Office officials are not always right and it is vital to have proper, independent safeguards in place to reveal the mistakes they sometimes make.

The case is R (FB (Afghanistan)) v Secretary of State for the Home Department [2020] EWCA Civ 1338 and the leading judgment is given by Lord Justice Hickinbottom with agreement from Coulson LJ and the Lord Chief Justice, Lord Burnett.

What is a ‘removal window’?

Under the policy of ‘removal windows’ a person facing removal from the UK is not told a specific date on which they will be removed from the country. Instead they are given a range of dates of up to three months. This range of dates is the so-called ‘window’ during which they may be removed. The person is given at least 72 hours’ notice of the start of the period but once the period begins the person might be removed at any time with no further notice. The idea is that a person who has a legal case against removal will be encouraged to bring that case as soon as possible rather than waiting until the last minute — because the person does not know when the last minute might be.

This approach was introduced in 2015 following statutory changes brought about by the Immigration Act 2014. The policy has been through many, many changes and was suspended last year at the start of the present litigation.

What is unlawful about removal windows?

The court held that the concept of a removal window is not inherently unlawful. Neither statute nor common law requires a person facing removal to be notified of the exact date and time. Such a person is given notice of the start of the removal window period and therefore has a chance to make an application to the Home Office. However, the way the policy was being operated by the Home Office was unlawful.

Although a person facing removal has a chance to make an application to the Home Office, that person does not necessarily have a chance to challenge any refusal in the courts. This is because the Home Office routinely makes decisions during that person’s removal window and, because of this timing, the person might potentially be removed immediately after being refused without a chance to bring a challenge in court.

Over 40,000 people had been removed under the policy. There were only a few examples of people who had provably been denied the right of access to a court but this did not matter:

It is no answer to say that these are merely aberrant individual decisions: if the scheme is to afford an effective remedy at common law, it is requirement that irregular migrants have access to a court to challenge adverse decisions of the Secretary of State, aberrant or not, that bear upon their removal including decisions not to defer etc removal. 

Paragraph 132

There was “a real risk of denial of access to justice” (paragraph 142) and this was sufficient to render the policy unlawful. Or, in the words of the Lord Chief Justice:

There is no escaping the conclusion that the Policy puts irregular migrants at risk of removal immediately following an adverse decision made, or notified, during the removal window which thus deprives that group of a proper opportunity to challenge the decision before removal.

Paragraph 193

What now?

Since March 2019, the Home Office has had to issue specific removal directions stating the date of removal. That will continue in the short term, but the judgment allows the re-introduction of the removal window policy as long as it is done in a way which properly protects the right of access to a court.

That is, unless we see specific primary legislation on removals. At paragraph 117 Hickinbottom LJ says this:

unless sanctioned by Parliament, the right to access to justice cannot be ousted by other rights and interests, the convenience of the executive or the courts/tribunals, or the risks of abuse of process.

Emphasis added

We know there is a ‘Fair Borders Bill’ coming at some point.

All sorts of outlandish and inhuman proposals have been floated for deterring refugees from seeking sanctuary in the United Kingdom. The Home Secretary has verbally attacked lawyers representing refugees and a far-right knifeman is alleged to have physically assaulted solicitors at one prominent firm. The details of how removals are notified and carried out may be dry but they are vitally important to those affected; we will see now whether the Home Secretary is as interested in the day to day details of administering immigration control as she has been in public posturing.