12 November 2020
This note was prepared by Ali Bandegani of Garden Court Chambers.
On 21 October 2020 the court of appeal (Lord Burnett CJ, Hickinbottom and Coulson LJJ) gave its judgment in R (FB (Afghanistan) and Medical Justice) v Secretary of State for the Home Department [2020] EWCA Civ 1338. It declared the Home Office’s Policy for removing migrants without the right to enter or remain in the UK (‘the Policy’) to be unlawful insofar as it gave rise to a real risk of preventing access to justice.[1]
The Policy replaced the long-standing practice of giving migrants the date and time of their proposed removal with a short ‘notice period’ (often as little as 72 hours) in which removal could not be effected, followed immediately by a ‘removal window’ (usually 3 months or 21 days) during which the individual could be removed at any time without further notice. The court unanimously allowed both appeals, robustly affirmed the absolute character of the common law right of access to justice and provided some guidance on applications to stay removal.
On appeal the Appellants submitted (1) the common law and/or statutory scheme required the Home Office to give notice of the date and time of actual removal, and (2) both the tribunal and court were wrong to hold that the Policy does not unlawfully restrict access to justice.
In rejecting (1), the court held that although there is generally a public law duty to give an individual notice of any decision that has a direct adverse impact on their rights or interests, that duty was neither absolute nor stand-alone. It was not unlawful for the Secretary of State to effect removal of an irregular migrant where s/he had been given notice of removal in the form of a notice of a ‘removal window’, even if no notice of the exact intended date and time of removal in the form of removal directions was given.
In allowing (2), the court held any decision adverse to the individual is almost always going to be made in the removal window period; and, once it is made and served, it will put the individual at immediate risk of removal. It followed that the policy contained an unacceptable risk of interference with the right of access to justice by exposing migrants to the risk of removal from the UK without a proper opportunity to challenge a relevant decision in a court or tribunal. Unlike many systemic challenges, this conclusion was reached by reference to a defect inherent in the policy.[2] As Hickinbottom LJ explained:
’56. …like all of the evidence as to how the JRI Policy works in practice, the case studies have to be seen in the proper context of the claim… the Appellants’ claim is a systemic challenge to the JRI Policy. It is made on the basis that the Policy is inherently defective because many decisions which bear upon the question of whether an individual who has been served with a notice of removal window is entitled to leave to enter or remain will inevitably be made after the close of the notice period and in the removal window; with the result that, as soon as an adverse decision is made, he or she is at risk of immediate removal without any opportunity to challenge that decision by way of judicial review. Therefore, on the Appellants’ case, the risk that the right to access to justice is compromised arises inherently from the Policy as it is intended to operate: it is not dependent upon the number of cases in which individuals have been (or may, in the future, be) denied access to justice in fact.
’57. The case study evidence – less than twenty cases over a period in which the data suggest that over 40,000 irregular migrants were served with a notice of removal window – patently could have no statistical significance, nor could it in itself provide a sound foundation to a legal challenge. Neither Ms Naik nor Ms Kilroy suggested that it did. However, Ms Kilroy submitted that, together with the evidence of the practitioners, the case studies help in painting the backdrop to the claim.’
[…]
‘61. To put it at its lowest (from the Appellants’ point of view), the evidence clearly shows that, whether the notice period is 72 hours, five days or seven days, in many (indeed, almost all) cases in which an irregular migrant is served with a notice of removal window and wishes to have further representations considered, a decision on the representations will not in practice be made – and could not on any view sensibly be made – until after the end of the notice period and only in the removal window. Similarly, where requests are made by such a person to extend, cancel or defer the window, or to suspend removal, any decision adverse to the individual is almost always going to be made in the removal window period; and, once it is made and served, it will put the individual at immediate risk of removal. Mr Kovats and Ms Rhee did not, as I understood their submissions, disagree. Indeed, in my view, on the evidence it would be impossible to disagree with that broad proposition.’
[…]
‘126. The right [of access to justice] is infringed because, following an adverse decision material to their removal which is 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 are at real risk of effectively being prevented from having access to justice. As I have described (paragraph 61 above), 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.’ [added]
In other words, it was a matter of happenchance whether the migrant would have any time at all to access the court.
As the court note, the right of access to the court to seek interim relief in the form of a stay on removal does not, of course, guarantee that the court will accede to the application. The court held that as well as being able to refuse an application in the form of a stay on removal because the underlying claim for leave to enter or remain is unarguable, the court may refuse to determine the merits of an application for interim relief because it considers the application to be an abuse. Nonetheless, unless the court can summarily dismiss the challenge on its merits (e.g. by refusing permission to proceed) where it is alleged that removal risks treatment in breach of article 2 and/or 3 ECHR, and/or the Refugee Convention, ‘the court will usually be bound to grant a stay on removal by way of interim relief’ although ‘the position may be different’ in article 8 ECHR cases.
FB’s solicitors successfully prevented his enforced removal to persecution in Afghanistan as long ago as 2017 which now seems like a different world. Work at the borders was not quite the cause celebre it is today: most immigration lawyers would not touch ‘removal work’ with a barge-pole, those who did were not attacked by the Prime Minister and the Home Secretary in the press or by far-right extremists in their offices, and you would be hard pressed to find so many immigration lawyers who passionately self-identify with the paradox of ‘legal activism’ on social media. Without being drawn into this maelstrom, the court’s robust affirmation of access to justice at common law seems vital. It said:
(i) ‘[T]he 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’ [98].
(ii) ‘[T]the right to access to the court is not restricted to a right to access the court to pursue a good claim: it is a right to bring any claim or application, no matter how abusive or even repellent it might be’ [102].
(iii) ‘The right of access to justice means not merely theoretical but effective access in the real world’ [111].
(iv) The case law of the European Court of Human Rights does not ‘materially add’ to the protection provided by the common law [111].
(v) ‘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’ [117].
[1] In R (FB (Afghanistan)) v SSHD (removal window policy) [2018] UKUT 428 (IAC)), the Upper Tribunal (IAC) held that the Home Office’s Policy of no-notice removal of migrants without leave in the UK, although deficient in a number of respects, was not incompatible with the common law right of access to justice; and the decision to remove FB under the policy was not unlawful. In a subsequent claim brought in the public interest by the charity Medical Justice, Freedman J also held that the Policy was not unlawful ([2019] EWHC 2391 (the Equality and Human Rights Commissioned intervening)).
[2] The court held that that 20 case studies out of 40,000 removals over the relevant period ‘patently could have no statistical significance, nor could it in itself provide a sound foundation to a legal challenge’ [57].