A Home Office policy that gives people 72 hours’ notice that they face deportation without further warning has been ruled unlawful by the courts because it prevents access to justice.
More than 40,000 people have been removed under the policy, including members of the Windrush generation, some of whom the Home Office was later ordered to bring back to Britain after it was ruled that they weren’t given adequate opportunity to legally fight their case.
Under the policy, which was temporarily suspended in March 2019 after charity Medical Justice was granted permission to challenge it, gives people between three and seven days’ notice that they can be removed without further warning at any time during the subsequent three months.
In a unanimous decision published on Tuesday, the Court of Appeal quashed the policy, saying it provides “no adequate opportunity – or, indeed, any opportunity at all – for the individual to take advice and lodge a judicial review challenging that decision before he or she is at risk of removal”, and ruling it to be “arbitrary and thus in any event unlawful”.
Campaigners who brought the legal case said it had “denied justice on a massive scale, causing serious harm to extremely vulnerable people and risking life” and said the ruling brought the UK “back towards equal access to justice for all”.
The Administrative Court ruled it was lawful in September 2019, at which point the charity took the case to the Court of Appeal.
Ruling the policy unlawful in the judgement on Tuesday morning, Lord Chief Justice Lord Burnett, Lord Justice Hickinbottom and Lord Justice Coulson concluded that “the right to access the court is an absolute and inviolable right… the right to access to the court is not a relative right to be balanced against other rights and interests”.
One Jamaican national who was unlawfully detained and almost wrongly deported under the policy described it as the “most inhumane and unjust process”.
The man, who didn’t wish to be named, had lived legally in the UK for nearly 30 years when he was detained and threatened with removal in 2017.
He had asked the Home Office for a new stamp to show he had indefinite leave to remain when replacing a lost passport, but the department had lost their records and he was stripped of his immigration status, meaning he couldn’t access NHS care and was let go from a drylining training course he had been excelling in.
“The day I was taken to the detention centre was horrendous. There was no warning at all. It was early in the morning. There was a loud hammering at the door,” the man said.
“When I got to the detention centre they took my phone away and gave me another handset to use, but it was useless. It was almost impossible to get a signal. I would queue up all day in the detention centre to try and see a lawyer and when I finally got to see an assistant they said straight away that they couldn’t help.”
He was in detention for about two weeks when he was called in for a meeting and told he was going to be put on a plane to Jamaica in two days’ time. Fortunately, his partner came across a lawyer at the last minute who said he could try and get an injunction, and the injunction came just after 5pm the next day.
Once the injunction was in place, the man had time to prove his immigration status and the Home Office subsequently accepted that he had had indefinite leave to remain since 1990, meaning they should not have tried to remove him. The department also acknowledged that they had detained him unlawfully.
In another case, the Home Office refused to give any consideration to new information provided by an asylum seeker that several of his relatives had been killed in his home country because he “had not followed the correct procedure”.
He was detained and removed without having had access to legal advice. The Home Office later brought him back to the UK, accepting that his removal was unlawful, and granted him refugee status.
A spokesperson for Medical Justice, which supports people in immigration detention who are facing removal, said clients they had managed to remain in contact with following removal had described “terrible consequences”.
“One of our society’s most precious treasures is access to justice. Chillingly, away from the public gaze, this policy denied that fundamental right on a massive scale causing serious harm to extremely vulnerable people and risking life,” the charity’s spokesperson said.
“It was effectively a shortcut to removal. Quashing the policy brings us back towards equal access to justice for all.”
Rakesh Singh, solicitor at the Public Law Project, who worked on the case, said: “This is a case about access to justice, one of the fundamental values of the British constitution.
“The ‘removal windows’ policy shut people out of the legal process. It meant that when mistakes were made, people could not access the court to put things right, and led the Home Office to remove people with a right to be here - including a number who were caught up in the Windrush situation.
“Removing people in this way caused terrible injustices and placed many individuals and families in danger and into hardship, unnecessarily and unjustly.”
Philip Armitage, solicitor at Duncan Lewis Solicitors who represented an Afghan individual affected by the policy, said: "This is a landmark decision from the Court of Appeal which emphasises that everyone in the UK is entitled to access justice and to seek redress from the courts.
“Our client for weeks faced removal to Afghanistan where he feared his life was at risk but, through this case, he was able to challenge his removal and he is now a refugee. For individuals such as him, the ‘rule of law’ is not an intellectual theory but a lifeline. This judgment strengthens those protections for everyone in our society.”
A Home Office spokesperson said: “Our immigration and asylum system is fundamentally broken and we are determined to introduce a new system that is fair, firm and will expedite the removal of those who have no legitimate claim for protection.”