By Tanya Kriplani Manglani
Between 2015 and 2019, 40,000 removals were effected under the Home Office’s Judicial Review and Injunctions policy, which is often referred to as the ‘no notice’ removals policy. Under this policy, people can be removed from the UK after being given a single notice, which could be given as little as 72 hours prior to their “removal window” opening. After this window opened, they could be removed without any further notice at any given time for a period of 3 months.
Given the fact that to challenge and potentially prevent their removal, an individual would have to find an immigration lawyer, make representations arguing their case as to why they should be allowed to stay in the UK and then wait for the Home Office to decide their application (and potentially be ready to legally challenge that decision if refused), this policy attracted a great deal of controversy and scrutiny, as lawyers, political commentators and the public at large pointed out how it is “practically impossible to go through all of these steps in the time allowed”.
As such, in 2019, Medical Justice applied for judicial review of this policy, claiming that it was inconsistent with the right to access justice. Whilst their claim was initially dismissed by the High Court last year, this past October Lord Chief Justice Lord Burnett, Lord Justice Hickinbottom and Lord Justice Coulson on the Court of Appeal unanimously ruled in favour of Medical Justice, declaring the Home Office’s policy to be unlawful.
The Court reached this decision as they found that “the Policy allow[ed] for no adequate opportunity – or, indeed, any opportunity at all – for the individual to take advice and lodge a judicial review challenging that decision before he or she is at risk of removal”, and that this is unlawful as “the right to access the court is an absolute and inviolable right […] not a relative right to be balanced against other rights and interests”.
The consensus amongst the legal community, especially those who have worked extensively in the field of immigration law, regarding this decision seems to be that this is a step in the right direction, and should be treated as an opportunity to replace the existing immigration and asylum system with one that is more just, and guarantees that individuals are able to access the courts before decisions that can so significantly impact the course of their entire lives are handed to them.
The Home Office, on the other hand, doubled down on Home Secretary Priti Patel’s promise to take a tough line on removing migrants from the UK, holding that as per their interpretation, the decision merely found that the removal windows interfered with an individual’s access to legal advice, but did not rule removal windows unlawful.
The full case citation is R(FB) and Medical Justice v SSHD  EWCA Civ 1338 and can be found here.