People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim.
On 22 November, the England and Wales Court of Appeal dismissed the Home Office's appeal against the Administrative Court’s finding that government policy for expedited removal procedures in exceptional circumstances was unlawful.
The policy was quashed because it interfered with people’s right of access to a lawyer, infringing their rights under common law, under statute or under the ECHR.
According to Home Office's removal policy set out in 2010 ("Judicial Review and Injunctions" – Section 2 and 3), the standard period of notice for removal directions is a minimum of 72 hours (including at least 2 working days).
The standard notification of removal directions however does not need to be given where: 1) an exception applies, or 2) where a second period of notification is not needed, following a failed removal.
- Certain medically documented cases;
- Certain cases involving children;
- Certain cases where swift removal is required because of the best interests of another;
- Certain cases where swift removal is required to maintain order in removal centres;
- Where the removee consents to early removal;
- Port cases where removal occurs within 7 days of refusal.
Addressing the concern of less than appropriate safeguards to this rule, the policy states that 'it may be appropriate to build in other safeguards on a case by case basis to ensure that removees have effective access to the courts'.
The Administrative Court judge held that the Section 3 policy referred to as the "2010 exceptions" was unlawful because it abrogated the constitutional right of access to justice.
"The effect of the 2010 exceptions is that in practice in the limited time available between serving the removal directions and the actual removal, it is frequently almost impossible that somebody served with removal directions will be able to find a lawyer who would be ready, willing and able to provide legal advice within the time available prior to removal let alone in an appropriate case to challenge those removal directions. There is a very high risk if not an inevitability that the right of access to justice is being and will be infringed."
"Unfortunately, there are no adequate safeguards built in to the present policy which would ensure that removal could not take place. If somebody had been given very short notice of removal and then in the time available before removal it was impossible for him to contact a lawyer and to obtain advice."
The Appeal Court upheld the judgement, noting that: "The position might have been different if the final sentence of paragraph 3.1 had said words such as 'other safeguards must be built in on a case by case basis to ensure that all removees have effective access to the courts'.
"However, given the remainder of the policy, even such a forthright statement might well have been insufficient or at best confusing, because, on the judge's findings, the only effective way of ensuring that the right of access to justice is not abrogated would be an access provision along the following lines: 'You must provide standard notification in any case where a shorter period of notification would prevent the removee from having effective access to the court.'
But, as the appellant pointed out, such a provision would effectively negate the application of the Section 3 policy.
The Secretary of State’s appeal was dismissed and ruling of the Administrative Court upheld.
Read more on its background: No removal without access to solicitor – UK Human Rights Blog.