UK Border Agency changes policy on judicial review challenges

Removal of failed asylum seekers not to be deferred once rights of appeal stand exhausted

22nd July 2009: If a failed asylum seeker has exhausted his statutory rights of appeal, the removal will not be deferred, except in exceptional cases.

In an attempt to establish a swift end-to-end process for concluding asylum cases and deporting foreign national prisoners, the UK Border Agency is changing its published policy on judicial review challenges. The changes to the policy will be implemented from 3rd August 2009.

The change to the policy covers situations where a person’s case has been finally determined and they have exhausted all statutory rights of appeal. If they then issue a claim for a judicial review up to three months after their statutory appeal was concluded, the current policy is normally to suspend their removal. Under the new policy, the agency will normally proceed with the removal. It will be deferred only in appropriate cases.

According to the rules, any decision the Agency makes can be challenged in the courts under the process known as ‘judicial review’, if it is believed that the decision was made unlawfully or irrationally or was otherwise flawed.

The Agency believes immigration cases should not reach the stage of judicial review, until they have been through the entire appeals system.

The agency is also extending the current policy on people, who issue a claim for judicial review up to three months after a judge has refused permission on a previous judicial review application. This revised policy, which came into effect on 30th January 2009, currently applies only to cases where people have been detained. From 3rd August, it will be extended to include non-detained cases.

These changes in policy will only affect those cases where the claimant has raised nothing new, (having lodged the same or virtually identical grounds), to the material that was previously considered or that could reasonably have been raised previously during the statutory appeal.

“We will inform any individuals affected by the new policy, and their representatives, that we intend to proceed with removal and that they will therefore need to obtain an injunction in order to prevent their removal,” UK Border Agency said.

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