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Same day removals condemned


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Further to my alerter post on this last month, the judgment is now available in the damning Third Country removals case on children. It is called R (on the application of T) v Secretary of State for the Home Department [2010] EWHC 435 (Admin). As expected, the judgment is scathing. It also very strongly suggests that UKBA re-think their no-notice removals policy, which has spread to an increasing number of cases in recent months:

5. I have no doubt whatever that the manner of removal, done as it was on the same day without any opportunity for the minor to contact any lawyer or indeed any social worker or anyone else who may be able to assist, was unlawful. Indeed, it seems to me at the moment that the contrary is simply not capable of any sensible argument. The sooner the same day removal is reconsidered and hopefully abolished, the better. Apart from anything else, it goes totally against the Home Office arrangement with this court and agreement that no one will be removed unless 3 days opportunity is given for advice to be sought and contact to be made with a lawyer. Detention may not generally be desirable, and clearly is not. However, there may be circumstances where there is a real and appropriate fear that if warned that removal is going to take place within 3 days the individual will abscond. If there is such a concern then, as it seems to me, the interests of the child in being able to contact advisers must prevail over the question of detention, which after all need not be in a severe unit, if I may put it that way. There are surely arrangements that can be made that any such detention is, for example in a Local Authority secure accommodation, or some secure accommodation which the Home Office could arrange. I can see no conceivable justification for same day removals in the sort of the circumstances that we have seen in these two cases.

Ministers and senior civil servants at UKBA do not understand what is meant by ‘the rule of law’ and they do not understand that it is not something that can be selectively toyed with. Either they do not understand it or, more worryingly, they perfectly well understand it and don’t give a damn. There is undoubtedly a culture of institutional unlawfulness, to coin a phrase.

It’s just not good enough. What does it take for them to realise that acting unlawfully is a bad idea? Sadly, this case of T provides a partial answer. It is considered perfectly acceptable to wrench a child away from her foster carers with no warning and turn her loose on the streets of Italy to find her own shelter with an unknown man and perhaps return to a life on the street of abuse and prostitution. I don’t really see how the officials responsible can entirely blame Ministers for day to day operational decisions like this one.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


11 Responses

  1. “What does it take for them to realise that acting unlawfully is a bad idea?”

    Therein lies the problem. I suspect it isn’t acting illegally (to quote another article while everyone else acts illegally/breaks the law, whereas the HO merely behaves in an unlawful manner – a PR spin I still can’t believe they get away with), that is a bad idea for them.

    Consider what happens when they break the law. Are they properly sanctioned in the same way that a company or individual would be? I think not.

    Further, more often than not, the courts seem to give them the benefit of the doubt… consider unreasonably long detention. The High Courts consistently hold that detention under immigration powers (ie, without a crime being committed, or, once a sentence has been served) for well over a year isn’t unreasonably long.

    Further, and perhaps more importantly, the public don’t seem to be outraged at all by government unlawfulness towards immigrants in this sense. Imagine if the NHS or the local council consistently acted in a similar manner – you’d never hear the end of it.

    It isn’t just the letter of the law that is taking a beating, it is the spirit. I was stunned to hear Mr Woolas the other day when asked: “What is your advice to an 18 year old Afghani boy who is thinking of coming to the UK to escape persecution?”

    He answered (paraphrasing)”Don’t come. The journey is dangerous, and, you aren’t welcome when you get here”. I can’t see any way to reconcile a statement like this with the spirit of either the UN Refugee convention, or, the ECHR.

    By way of example, consider the recent MPs expense scandals. My understanding is that in a lot of cases, those expenses were within the letter of the law, but, outside the spirit of public policy, and there were, rightly or wrongly resignations on that basis. Nothing that I have heard or read has even suggested that Mr Woolas’s comments are even mildly inappropriate.

    The idea of judging a society by how it treats the least privileged in times of stress isn’t a new one (Gandi rabbited on about it a bit among others). By that simple measure alone, we fail, and fail badly.

    1. It isn’t an open, formal consultation and I don’t want to put the document out there this time, I’m afraid.

    2. I too would love to see it.

      I’ll keep a close eye on wikileaks when it comes back up in case someone else has it and is willing to post it.

  2. Time and again the penalty for the HO breaching the law, immigration or other, has been left at virtually nothing. No wonder they do what they like, its as if they have crown immunity, or Parlimentary privelege (per the MPs expenses case yesterday).

    Time and again it is suggested that where applicants have not breached the law, immigration or other, but the HO have, that judges should overturn the case and regularise the migrant. Every other suggestion so far implemented has failed to work in making the HO comply with the “rule of law”.

    In Asylum, the case of applicants who came via another safe country, there needs to be a consistent EU solution. One obvious suggestion is a set-off agreement. This is how it could work. If 100 people per month who are refused their UK asylum claims because they came via Greece, and 90 people per month who are refused their Greek asylum claims because they came via the UK, their would be a net shipment of 10 people, and the remaining 180 people would rejoin the normal Asylum queue. Of course, the 10 people shipped should always exclude minors, and never separate families.

  3. In a case where the Home Office has acted unlawfully, presumably the wronged person can sue for damages – sparking more outrage from the likes of the Daily Mail. Moreover, this simply means that we, as tax-payers, pay compensation for the wrongdoings of officials.

    Is it not open to the courts to hold individuals to account for their actions? Who, exactly, authorised the unlawful action? Are we not talking of false imprisonment, abduction, etc, serious criminal matters? Would it be possible, if the CPS declines to act, for someone to initiate a private prosecution? I would dearly love to see individual private security staff, immigration officers, and home secretaries, brought face to face with the consequences of their cavalier lawlessness, and to suffer appropriate penalties.

    Opprtunity for some budding lawyer to make (or break) his reputation?

    1. Government officials acting for the Government aren’t personally liable other than in VERY unusual circumstances. Given there seems to be no internal accountability at UKBA — I can’t imagine anyone ever gets sacked at UKBA for the various illegal acts perpetrated on a regular basis — an alternative form of personal accountability might be a help, it’s true. It is what is referred to in country information reports as a culture of impunity.

  4. Couldn’t agree more – same day removals are terrible. Even the 3-day policy is pretty damn tight, but at least there is a window for advice and JR is appropriate.

  5. Officials who break the law knowingly should be brought to book if they are using their position within an organisation to act unlawfully. There must be some form of personal accountability in place to counter maladministration and corruption from arbitrary actions.