In a significant judgment, Lord Burnett LCJ and Hickinbottom and Coulson LJJ held that the SSHD’s removal notice window policy found in her guidance document Judicial Review and Injunctions (Version 17.0) (the JRI Policy) was unlawful insofar as it gave rise to a real risk of preventing access to justice for irregular migrants. The Court of Appeal allowed the appeal on the basis that the serious risk of removal before the affected person was able to access the court to challenge the decision inherent in the policy amounted to an unacceptable risk of a breach of the right to access to justice at common law which rendered the policy ultra vires. As to relief, the court made a declaration that the policy was unlawful insofar as it gave rise to a real risk of preventing access to justice. Earlier on in R (FB and another) v SSHD (removal window policy) [2018] UKUT 428 (IAC), the Upper Tribunal (Lane J) held that while deficient in a number of respects, the policy was not incompatible with the right to access to justice and the SSHD’s decision to remove FB under the policy was not unlawful. In R (Medical Justice) v SSHD [2019] EWHC 2391 (Admin), Freedman J held that the policy, as amended following the determination in FB, was not unlawful. In these proceedings, the appellants submitted that both the tribunal and court were wrong to hold that the policy does not unlawfully restrict access to justice.
The court prefaced its judgment with the point that the Immigration Act 2014 included provisions designed to encourage those who require leave to enter or remain but do not have it (“irregular migrants”) to regularise their immigration position by either making a claim for leave or leaving the UK. For example Part 3 of the 2014 Act generally restricted the access of irregular migrants to residential tenancies, employment, NHS facilities, and obtaining bank accounts, driving licences etc (the so-called “hostile environment” later “compliant environment” provisions). Section 1 of the 2014 Act needs to be seen in that context and it amended section 10 of the Immigration and Asylum Act 1999 to replace diverse provisions with a single power of removal vested in the SSHD. Medical Justice submitted (i) first, that the serious risk of removal before the affected individual is able to access the court to challenge the decision that is inherent in the JRI Policy amounts to an unacceptable risk of a breach of the common law right of access to justice which renders the policy ultra vires, and (ii) second, it is also irrational given that it is the express aim of the policy to maintain the right to access to justice by giving every person served with a notice of removal window sufficient time to be able to raise a claim and for such a claim to be properly considered.
Background
From 1999, the SSHD began a policy designed to cover arrangements for responding to late events such as late representations, claim or injunction, in the face of a then-current practice of serving any irregular migrant whom it was intended to remove with notice of removal directions setting out details of the removal flight such as date, time, exit airport and route as part of the single decision letter process. In 2007 the SSHD introduced a policy to give 72 hours’ notice of removal to many irregular migrants, to others five and seven days. Provisions within the policy which truncated the time scale to fewer than 72 hours in limited circumstances were challenged successfully in R (Medical Justice) v SSHD [2010] EWHC 1925 (Admin) and [2011] EWCA Civ 1710 on the basis that the shorter time frame denied many an effective opportunity to challenge the decision in question before removal.
From 6 April 2015, the policy was changed and the new policy envisaged an individual being served with a notice which confirmed liability for removal, and set a short notice period during which there would be no risk of removal, followed by a removal window during which he or she might be removed without service of removal directions or, any further notice. The Home Office Policy Equality Statement (or PES) for the Bill which became the 2014 Act made it very clear that it was a quite deliberate element of the policy to withhold details of removal (such as time and date) from the person to be removed, on the basis that, in line with the intention of the policy, this would surely encourage earlier representations and, equally, discourage delay in making representations which were then more likely to be disruptive of the removal process.
FB, an asylum seeker, was not successful on his own grounds turning on the inherent unlawfulness of removal windows but supported Medical Justice, a campaigning charity organisation that offers independent medical advice and assessments to immigration detainees, in its submissions.
The appellants argued that the policy’s notice period was too short for irregular migrants to instruct lawyers, make representations and make applications to court or a tribunal to challenge a negative decision regarding their status. They contended that in many cases decisions were made after the notice period had ended so that applicable individuals were already in their removal window and at risk of immediate removal without an adequate opportunity to challenge the decision by way of judicial review. They hence challenged Freedman J and the Upper Tribunal’s decisions that the policy did not unlawfully restrict access to justice. Freedman J judged that “the policy regarding deferral provides some inbuilt flexibility into the system on which the [Secretary of State] relies”.
FB was an Afghan national who was apparently removed from the UK to Afghanistan on 29 March 2011, his asylum claim having been refused in December 2010. In April 2011, he again left Afghanistan for Turkey and then Germany, where he lived until September 2017. That month, he travelled via Calais arriving in the UK clandestinely in the back of a lorry on 30 September 2017, he voluntarily attended Wembley Police Station. The next day he was interviewed by an immigration officer, with a Dari interpreter. He stated that he came to the UK as Germany was going to return him to Afghanistan. While this was not accepted by the SSHD, he claimed that he also said in that interview that he wished to claim asylum in the UK. That day, he was also served with a number of documents including Form RED.0001 and he was given notice of a removal window beginning on 5 October 2017 and ending three months from the date of the notice.
On 2 October 2017, FB was transferred to Campsfield IRC. The following day, he made an oral request to claim asylum, and obtained and attended a DSA surgery slot with his lawyer. On 4 October 2017, he was informed by an immigration officer that, having been refused asylum in 2010, he would need to put his further submissions into writing. It was noted that FB was unable to write in English, and that he would require legal assistance to make those representations.
FB’s notice period duly expired on 5 October. Unfortunately, due to capacity issues, his lawyers did not internally allocate his case until 19 October. That day, his lawyers went onto the record with the Home Office as acting for FB. The lawyers asked for a copy of the decision refusing asylum in 2010, which was provided on 24 October. That day they made a full disclosure request and subject access request. On 14 November, they asked for the removal window to be cancelled pending full disclosure; and, the following day, they sent a letter before action which was treated by the SSHD as further submissions.
On 22 November 2017, the SSHD set FB’s removal for 24 December, but, in accordance with the JRI Policy, did not disclose that to FB or his legal representatives. Later on 28 November, his lawyers issued judicial review proceedings arguing that removal following only notice of a removal window under the JRI Policy was unlawful, with an application for urgent consideration and interim relief to prevent FB’s removal pending the outcome of the claim. The following day, the SSHD refused FB’s further submissions. But that same day, Upper Tribunal Judge Craig granted the application for interim relief staying FB’s removal. On 30 November, removal was deferred and, on 5 December, FB was released from immigration detention. Overall, he accepted, in the event he was not in fact denied access to justice and, thus, no relief specific to his case was due. Ultimately, the FTT allowed FB’s appeal on asylum grounds but he nonetheless supported Medical Justice, the second appellant, in its case. The Equality and Human Rights Commission intervened in these proceedings.
The Court of Appeal
Lord Burnett LCJ and Hickinbottom and Coulson LJJ unanimously allowed the appeals. Two issues arose for determination (i) whether irregular migrants must be given notice of the date, time and mechanism of their removal, and (ii), whether the JRI Policy denied access to justice to some of those to whom it is applied and was thus, without amendment, unlawful to that extent. Notably, approximately 40,000 removals were conducted between 2015 and 2019 applying the JRI Policy. The Home Office identified eight individuals who were removed but were returned either because a court ordered return, or the SSHD later recognised their right to be in the UK. The various solicitors who had given evidence of their experience had identified about 20 individuals who would have been removed but as a result of prompt action were protected. While the risk was illuminated by those figures, it did not establish how many it might apply to. There was some evidence of individuals being removed very promptly following adverse decisions. But missing from the evidence was any indication of the numbers of migrants who were removed more quickly after an adverse decision than the equivalent times used for the notice period (72 hours or five or seven days as the case may be). The court opined that that information would provide a more reliable estimate of those who were likely to have had too little time to get advice and challenge the decision before removal (but not, of course, the numbers of those who would have done so).
(i) Lawfulness of notice of removal window
The court said that section 10(7) of the 1999 Act is concerned with giving directions for removing a person, however, it imposes no duty. It only gives an immigration officer or the SSHD the power to give directions only to the captain, owner or agent of the aircraft etc and not to the person it is proposed to be removed. Hickinbottom LJ said that where, within the statutory immigration scheme, there is an intention that notice is given to an individual then that intention is express and clear, for e.g., section 4 of the Immigration Act 1971 provides that certain powers to refuse leave to enter or remain, and to vary and cancel such leave, “shall be exercised by notice in writing given to the person affected”. His Lordship pointed out that in R (Anufrijeva) v SSHD [2003] UKHL 36, Lord Steyn –with whom Lords Hoffmann, Millett and Scott concurred – held that “notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule, It is simply an application of the right of access to justice.” In light of this principle, Hickinbottom LJ held that:
81. At common law, it is well-established that there is generally a public law duty to give an individual notice of any decision which has a direct adverse impact on his or her rights or interests; but that duty is neither absolute nor stand-alone. It is a duty associated with the obligations of procedural fairness … Thus, in that case, it was held that a decision to refuse an asylum claim, which would disentitle the claimant to income support, had no effect in that regard unless and until it was notified to the claimant, because it was only then that it could be legally challenged.
82. However, that is far distant from this case.
Hickinbottom LJ was of the view that it is not unlawful for the SSHD to effect removal of an irregular migrant where that migrant has been given notice of removal in the form of a notice of a window of time during which it is intended to remove him or her, even if no notice of the exact intended date and time of removal, in the form of removal directions, is given.
(ii) The right of access to justice
Next, the court examined the risk to the right of access to justice. First, it observed that in R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court unanimously held that “at the heart of the concept of the rule of law is the idea that society is governed by law”. Speaking for the court, Lord Reed observed that “in order for the courts to perform that role, people must in principle have unimpeded access to them.” As he said “without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.” Hickinbottom LJ highlighted the principles in R (CPRE Kent) v Dover District Council [2017] UKSC 79 and R (Citizens UK) v SSHD [2018] EWCA Civ 1812 (discussed here) whereby the right to access to justice is an inevitable consequence of the rule of law. It is a fundamental principle in any democratic society which more general rights of procedural fairness are to a large extent designed to support and protect. In light of the respective approaches in R (UNISON), MSS v Belgium and Greece (2011) 53 EHRR 2, and (R (Daly) v SSHD [2001] UKHL 26, Hickinbottom LJ determined that:
92. The right of access to justice means, of course, not merely theoretical but effective access in the real world: it has thus been said that “the accessibility of a remedy in practice is decisive when assessing its effectiveness” … This means that a person must not only have the right to access the court in the direct sense, but also the right to access legal advice if, without such advice, access to justice would be compromised … For these rights to be effective, as the common law requires them to be, an individual must be allowed sufficient time to take and act on legal advice.
98. … the common law right to access to justice may be restricted, but only by Parliament and then only by clear authorisation in the form of express statutory provision or necessary implication.
117. … 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, the convenience of the executive or the courts, or the risks of abuse of process. As much as the right to an effective remedy under article 13 of the ECHR … the common law right to access to justice is not susceptible to being outweighed by factors such as other rights and interests, the convenience of the executive or the courts and the risks of abuse of process. The court must organise its systems in such a way that it can meet the requirement for an effective remedy, no matter when and the circumstances in which an application to prevent removal on the grounds of unlawfulness is made.
There was no suggestion in this appeal that the court had failed to organise itself in such a way. The issue was whether the SSHD, through the JRI Policy, had organised her systems to the same effect.
(iii) Right of access to court: JRI Policy
The first ground involved a systemic challenge to the JRI Policy itself. Hickinbottom LJ said that while systemic unfairness may be illustrated by what has happened in individual cases, a challenge of this nature focusses on the administrative scheme itself and the risk of unfairness in a public law sense arising from that scheme as a scheme – rather than focusing upon the consequences of unlawfulness for a particular individual or group as do most judicial reviews. Sedley LJ said in R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 that it is sufficient for the claimant to demonstrate that there is “a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself”. As Lord Dyson MR said in Detention Action [2015] EWCA Civ 840 “a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself”. As Hickinbottom LJ himself observed in R (Woolcock) v Justice Secretary [2018] EWHC 17, there is a conceptual difference between something inherent in a system which gives rise to an unacceptable risk of unfairness, and any number (even a large number) of decisions that are simply individually aberrant. As Sedley LJ had reasoned in R (Refugee Legal Centre),provided the said system was operated with appropriate flexibility, it was not inherently unfair and it could operate without an unacceptable risk of unfairness.
In R (Medical Justice) [2010] EWHC 1925 (Admin), the Court of Appeal focused on the risk to the right of access to justice that was inherent in the policy itself. In that context, the court held that it was sufficient for the claimant to show that the policy abrogated the right of access to the court to challenge the lawfulness of removal by showing that the policy gave insufficient time between notice of removal and the removal itself to enable a legal adviser to be instructed and thereafter to challenge the lawfulness of the removal directions. Hickinbottom LJ acknowledged that was the correct approach in such cases as the present and it was the approach that the appellants had adopted.
It was submitted that so far as those in respect of whom notice of removal was in the form of a notice of a removal window were concerned, the abrogation of the right to access to justice in the JRI Policy was materially indistinguishable from the defect identified in the 2010 Medical Justice case as it then applied to those who fell within an exemption to the 72 hours’ notice requirement. The right was violated since, following an adverse decision material to their removal which was notified in the removal window, like those who fell within an exemption, as a result of the policy itself, those involved are at risk of removal without any opportunity to challenge the relevant decision in a court or tribunal, i.e. they were at real risk of effectively being prevented from having access to justice. Bearing this in mind, Hickinbottom LJ held that:
126. … the evidence clearly shows that almost all decisions material to removal which are made in respect of applications and representations made following service of the notice of the removal window are made within the window period itself. As the unfairness is inherent in the Policy itself, Ms Kilroy submitted that the focus of the tribunal and (particularly) Freedman J on the case studies and evidence of numbers of cases in which an irregular migrant’s access to justice had in fact been interfered with was misplaced. I agree.
The court was unpersuaded that the opportunity that irregular migrants who are removed may have to challenge the lawfulness of their removal – after the event and from abroad – was a compelling argument in favour of the submission regarding the lawfulness of the scheme. Hickinbottom LJ also pointed out that the potential difficulties for out-of-country challenges are not in doubt and were considered in the key cases of R (Byndloss) v SSHD [2017] 1 WLR 2380 (discussed here) and R (Ahsan) v SSHD [2017] EWCA Civ 2009, and once removed from the UK, an irregular migrant may be “lost” and continued, effective legal representation may be difficult, and the individual may lose the ability to give oral evidence which might be crucial. In her defence, the SSHD submitted that the evidence adduced by the appellants in the form of case studies etc did not show that there was any restriction of access to justice in more than a very few cases. The point was unpersuasive. Furthermore, unlike Byndloss (an article 8 claim) and Ahsan (a claim for indefinite leave to remain, refused as a result of the SSHD suspecting dishonesty), notice of removal in the form of a removal window was used in cases where an irregular migrant contends that removal will subject him/her to treatment contrary to decision on article 2 and/or article 3 of the ECHR and/or the Refugee Convention 1951 . Therefore, the consequences of an unlawful removal may be grave, and irremediable after the event.
The court rejected the SSHD’s argument that the ability to apply to her for deferral of the removal window showed that the scheme as a whole had an inbuilt flexibility that did not deny access to justice and was procedurally fair. Hickinbottom LJ said that he was “unable to accept that the discretion to defer, supervised by judicial review, is able to bear the weight of this argument.” In fact, the data demonstrated that from from 25 May 2018 to 9 March 2019, caseworkers considered deferring a removal window in 71 cases, initiated either on the caseworker’s own initiative or on request and, of those cases, deferral was granted in 13 instances. In Hickinbottom LJ’s view, data showed that (i) there were few cases in which deferral was considered, and very few in which it was granted, and (ii) in the vast majority of cases in which it was considered, it was refused, such refusal being open to challenge only by way of judicial review. With all this in mind, Hickinbottom LJ held:
142. In my view, the fatal flaw in Mr Kovats’ submissions (and in the analysis of both the tribunal and Freedman J) on this issue is that an irregular migrant who applies for deferral (or, I should add, extension, cancellation or suspension of the window: see paragraphs 44-48 above) and is refused within the removal window – as will almost always be the case – will be at immediate risk of removal without having had an opportunity of challenging the refusal in a claim for judicial review (supported by an application for interim relief) before a court or tribunal. For the reasons I have given, contrary to Freedman J’s conclusion, judicial review is not in practice immediately available to challenge a decision of the Secretary of State material to removal (including a decision not to defer etc) prior to the relevant person being at risk of immediate removal without further notice. There is, at that point, a real risk of denial of access to justice.
145. … whether an irregular migrant is removed before he or she has had an opportunity to obtain legal advice and apply to the court is a matter of pure happenchance. It is, in the legal sense, arbitrary and thus in any event unlawful.
Overall, the JRI Policy under attack incorporated an unacceptable risk of interference with the right of access to a court by exposing a category of irregular migrants, including persons with claims on article 2 and/or article 3 human rights and protection grounds, to the risk of removal without any proper opportunity to challenge a relevant decision in a court or in a tribunal.
The court thus made a declaration that the JRI Policy was unlawful insofar as it gave rise to a real risk of preventing access to justice and Coulson LJ agreed with Hickinbottom LJ that the SSHD’s position was “unsustainable”. Lord Burnett LCJ agreed with the result and he mentioned that in R (UNISON) it was emphasised by the Supreme Court (Lord Reed) that a provision preventing access to justice will not be able to survive scrutiny unless expressly authorised by statute. Moreover, the common law recognises that even an interference with access to the courts – which is not insurmountable – will be unlawful unless it can be justified as reasonably necessary to meet a legitimate objective. He said:
193. 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.
He added, in light of R (Byndloss), that although it was correct that the ability to challenge a decision from abroad will mean that there is no unlawful impediment to access to justice in many cases, there were readily identifiable cases where that will not be so. And obvious examples of this are those cases where removal itself exposes the migrant to immediate risk of harm – cases raising articles 2 and 3 of the ECHR or under the Refugee Convention form a part of this cohort whereas the same is not true as a matter of principle in article 8 cases.
Comment
Access to justice is a fundamental value of the British constitution. Indeed, Medical Justice considered that the decision “brings us back towards equal access to justice for all” and it explained that since their sick clients were subject to “removal windows”, it was impossible to “know if they would still be in the UK from one day to the next” which caused “terrible consequences”. Medical Justice has identified the problem by illustrative case studies.
For example, Mr A (a Windrush case), arrived in the UK from West Indies in the 1980s and married here and was granted indefinite leave to remain, lived in the UK and had a British child. However, owing to the UK’s hostile environment immigration policy, the authorities arrested him unexpectedly out of the blue from his residence and served him with a “removal window”. Inside the immigration removal centre where he was detained, Mr A was unable to access legal advice in time. Given his established roots in the UK, he was lucky and a friend of his engaged a solicitor who obtained a last minute injunction on the evening before he was due to be removed from the UK. The evidence was voluminous spanning 500 pages, covering almost 30 years of continuous residence. It was impossible to compile such evidence in a mere 72 hours. Ultimately, the Home Office confirmed that Mr A was in possession of ILR and that his detention was unlawful.
The Court of Appeal’s judgment coincides with the Home Secretary Priti Patel’s ongoing attacks – backed by Boris Johnson himself – on “lefty lawyers” who allegedly abuse court processes with frivolous applications to make illicit profits. She sees such lawyers as being part of the problem and her misguided comments have resulted in right-wing attacks on lawyers representing asylum-seekers and immigrants. The court was clear that in cases such as R (Madan) v SSHD (Practice Note) [2007] EWCA Civ 770, R (SB (Afghanistan)) v SSHD (Practice Note) [2018] EWCA Civ 215, and R (Hamid) v SSHD [2012] EWHC 3070 (Admin), the judiciary has imparted guidance to legal representatives emphasising their professional obligations to take steps to challenge removal as early as possible, and with maximum notice to the SSHD. The court emphasised that the inviolable right to access the court was not questioned in these cases and these judgments merely emphasised the rights of the High Court to regulate its own procedure including the consequences for lawyers who bring and pursuing meritless applications. It explained that these authorities are only concerned with the consequences – primarily for legal representatives – of issuing and pursuing abusive claims and applications and they do not limit the right to access the court in any way.
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