The Home Office removals policy, which enables the forcible removal of migrants from the UK, often without access to legal representation, has been suspended by a High Court judge pending a full judicial review hearing on its validity.
Mr Justice Walker alllowed the hearing in a challenge brought by the charity Medical Justice, which assists migrants suffering mistreatment in immigration detention, on the basis that "there appears to be grounds for real concern about access to justice".
The policy, part of the "hostile environment" strategy, includes "removal windows" whereby, depending on the type of case, if arrangements for a person's removal have not yet been made, between 72 hours' and seven days' notice can be given to a migrant that they might be removed from the UK at some point during the subsequent three months, without any warning. If after three months they have not been removed, the Home Office can open another three month window, prolonging the uncertainty ‘limbo’ seemingly indefinitely.
Its effect is to keep secret the date of removal and preventing many migrants from mounting an effective challenge. The Home Office’s rationale is to prompt migrants to raise any human rights claims or other reasons for remaining in the UK. However Medical Justice claims that expecting migrants to do this within the very short notice periods is almost impossible if they do not have a lawyer. Even if they do, there is no time limit on when the Home Office has to make a decision and almost invariably it is during the removal window, so that decisions which could be challenged in the courts can be given to migrants shortly before removal and even on the same day, making it impossible to challenge an unlawful removal.
The Home Office has not revealed how many migrants have been subjected to the policy, but Medical Justice believes it possible that the majority of the 27,000 people who are detained each year, as well as thousands more migrants in the community, have been subjected to it. In court, Home Office lawyers said they would have to cancel 69 removals scheduled for that day and the next.
Suspension of the policy was granted as interim relief. The full hearing will be in June or July.
Following the ruling Medical Justice said: "Cases where individuals are removed from the UK without to access legal advice are particularly concerning because they are unlikely to be reported or detected at all outside of the Home Office. Some cases have only come to light when removals have been aborted by chance. There are no effective safeguards in the policy that protect against unlawful removal. Once the 'removal window' begins, Home Office officials are given complete freedom to act as they see fit without any effective supervision by the courts."
It cited a “Windrush” type case, where a man came to the UK from Jamaica to visit his girlfriend in 1988, married her in 1989, and was granted indefinite leave to remain in the UK. He was arrested out of the blue from his home in 2017, and served with a "removal window". He was unable to access legal advice in time inside the immigration removal centre he was held in, but his ex-partner was able to engage a solicitor who obtained an injunction the evening before he was due to be removed. The solicitor was able to compile voluminous evidence, which could not have been done within 72 hours, and the Home Office eventually confirmed it had unlawfully detained and attempted to remove him.
The Law Society of England & Wales welcomed the ruling. President Christina Blacklaws commented: "Anyone who faces deportation must be given time to prove they have a legal right to live here. The experiences of too many of the Windrush generation show that sometimes the Home Office simply gets it wrong.
"Someone who is at risk of being forced to leave the country must have sufficient time to access legal advice and the opportunity to challenge their removal in the courts. This is a constitutional right afforded to every person in Britain."