At the beginning of this month the Home Office brought into force new guidance on the suspension of removal directions for pending judicial reviews. There are two crucial changes to the policy:

(1) At present, when a judicial review is brought within 3 months of a previous judicial review or appeal, the Home Office will only suspend removal on receipt of an injunction. This period is now extended to 6 months.

(2) The second is new, building on the new removals process established by the Immigration Act 2014. Where a person is notified that they are liable to removal, the Home Office gives 7 days (or 72 hours if a person is in detention) notice period before removal. During this notice period, the person can seek legal advice regarding their liability for removal. This is followed by a 3 month “removal window” during which the person can be removed without further notice. The Home Office will now not normally suspend removal where a judicial review is brought within the 3 month removal window unless an injunction is granted.

The “removal window” has been increasingly used to remove people in detention from the UK since it was brought in under the 2014 Immigration Act, as the Home Office no longer has a legal obligation to let someone know when their removal is planned for after the 7 day or 72 hour notice period. This has resulted in individuals being taken suddenly from their detention cell without warning in the middle of the night – or with warning, if you count (as the Home Office does) being previously told that at any point in the next 3 months you could be removed immediately from the UK. One detainee in Harmondsworth, facing the ongoing threat of deportation via a removal window told The Unity Centre,

I live in a constant state of anxiety and panic because I do not know when I might be deported. I can’t sleep because I am scared that they may come in the night and take me to the airport.

The negative effects of the removal window policy on detainees are glaring: the practice makes legal challenges extremely rushed under the constant threat of removal. The necessity of an injunction, outlined in the new guidance, means that it is now much harder to stop a removal at the last moment through judicial review, which is often the only possible response to the Home Office’s tactic of refusing and certifying further submissions moments before an attempted removal – as guidance states that an individual “can proceed to be removed on the same day [as the submission of further representations] once we have considered the outstanding representations.” Of course, it is up to the Home Office’s gap-year students and their rigorous (or not as Tribunal statistics show!) decision-making skills to determine which fresh claims possess a “realistic prospect of success.”

Non-Detained Removals via the Removal Window Policy

However, there has been less attention on the use of removal windows to remove people who are not in detention. Roots to Return is aware of at least two people who have been (separately) removed from the UK in the last few weeks, via this removal window policy, whilst reporting at their local Home Office branch as usual. This is the first time that anti-deportation campaign groups Movement for Justice and Right to Remain have been aware of this new strategy. However, the Home Office states, “If someone has been given notice of a removal window, they need not always be taken into detention overnight before removal.” This policy allows people to be taken by force directly from reporting at their local Home Office branch to the airport, for removal from the UK the very same day.

Evidently, this makes campaigning and resistance against individual deportations near impossible. In fact, the removal window can be understood partly as a response to (in many cases successful) individual resistance to removal, as Home Office guidance notes that the strategy “may be of particular use where non compliance or disruption by the family has led to a previous failed return or where there is a reasonable likelihood of future disruption or future non compliance.” Non compliance – physically or verbally resisting enforced removal – and direct action are repeatedly used to give an individual and their solicitor more time to legally challenge the removal. However, Home Office guidance notes how when an attempted removal fails, “removal may be rescheduled without further notice if it is within the removal window or limited notice period” – making non compliance a less effective tool for gaining time for a legal challenge to be made.

One woman removed from outside detention via this removal window policy had visited the Home Office to report as usual; although her case was appeal rights exhausted, she had submitted further evidence for which she had not yet received a response to – and so was not expecting to be detained. Upon reporting, she was held in a private room, where she was told that she would be removed from the UK that very day.

When she explained that she had an ongoing case, staff left and returned with a letter refusing the further evidence she had previously submitted. She was then taken straight to the airport; her phone was kept from her until she was on the plane, denying her the right to contact her solicitor or family – a common experience of people being removed. Whilst guidance sets out that if someone with a same-day removal “states…that they wish to access legal advice, they will not be removed”, because her further submissions had been refused, same-day removal was able to proceed without contravening Home Office policy. However, she wasn’t even allowed to collect her possessions from her home before being removed. As one person with an ongoing asylum case said, “Before I was scared of being detained when I go to report, now I am terrified I will be deported.”

Whilst the Home Office is required to tell someone that they are “liable for removal”, this notice may be part of a Refusal Letter or Deportation Decision Letter (as it was for said woman above). Upon receiving such letter, most people seek an appointment with their lawyer to discuss further action. Now, people have just 7 “safe” days (including weekends) to do so, before the threat of imminent removed is present for the next 3 months. As anyone with a solicitor (or solicitors themselves!) know, the possibility of being able to make an appointment within the next 5 week is highly implausible – let alone prepare and submit a fresh claim, appeal or a judicial review and injunction. With such time restraints and pressures, alongside severe cuts to legal aid, it is highly unlikely that a legal challenge will be as strong as it could be under different circumstances.

For those in detention with long waiting times at legal drop-in surgeries, there is little hope to accessing fair legal representation. In 2010, a Home Office policy of giving no notice at all of removal directions to certain detainees (such as people at risk of becoming suicidal if they knew they were about to be removed) was deemed unlawful by the High Court. It was concluded by the judge that the “disturbing” policy prevented access to legal advice and to the court, specifically attempting to remove people at times when both legal avenues were inaccessible. This highlights the evident importance of documenting the difficulties of accessing legal advice before removal, both inside and outside of detention.

Accelerating Removals and the Changing Landscape of Deportations

Removal windows and the necessity of an injunction indicate the growing push by the Home Office to speed up the deportation process, with newly-directed energy being put not only into who and why people are being removed, but how, and the broader conditions of the removals process. Earlier this year, the British High Commission donated a “Returns Reception Centre” to the Nigeria Immigration Service, as a space for charter flight deportees to be “processed” upon disembarkment in Nigeria, hidden from public scrutiny.

At the same time, changes are being made within the detention estate to suit: the announcement to close Dungavel and build a “short-term holding facility” at Glasgow Airport (the latter was recently rejected by the local council after pressure from campaigners), and the replacement of Cedars with a holding space for families near Gatwick Airport. Both plans signal the acceleration of the removals process (as noted by the UK Immigration Minister himself), whilst wrongly interpreted as a “humanitarian” move towards curtailing detention. In actuality, the introduction of the removal window means that detention is no longer such as necessary step in the removals process; people can be taken straight from reporting to the airport, disrupting any legal challenges being prepared.

However, it may be the case that there are in fact increasingly less legal challenges to prepare; the out of country appeal policy, and its expansion to affect all immigration cases (and certified asylum cases) as of December 1^st, too accelerates the removals process and – in the Home Office’s own words – denies appellants “access to the best possible procedure”. In fact, the so-called “right” to an out of country appeal is used to justify the non-suspension of removal, as guidance notes that due to an out of country appeal right, a judicial review of refused further submissions or a fresh claim will not necessarily suspend removal. From December 1^st, it will even be possible for the Home Office to remove a person pursuing a human rights appeal whilst their appeal is pending.

Of course, it is unlikely that the Home Office have the resources or competence to organise and swiftly increase same-day removals outside of detention – but the Immigration Act 2016 demonstrates the will to accelerate the removal process, as enforced removal from the UK is prioritised above access to justice and fair legal representation. The introduction of the removal window means that there is less individuals facing removal and campaigners can do to resist; the necessity of an injunction means that a solicitor must do even more to attempt to stop a removal; and the out of country appeal policy makes the courts inaccessible. Time to start brainstorming.

Challenging the Removal Window Policy

The Public Law Project are looking into whether the Home Office’s removal window policy means that people do not have enough time to access legal advice before removal. If you have experience or knowledge regarding this, contact Rakesh Singh at r.singh@publiclawproject.org.uk