High Court suspends policy of removing migrants from the UK without warning

By agency reporter
March 15, 2019

The Home Office removals policy enabling it to refuse a migrant’s case and forcibly remove them from the UK within hours, and in many cases without access to legal representation, has been suspended by a High Court judge, potentially tearing the heart out of the government’s 'hostile environment' strategy against migrants.

Mr Justice Walker said: “… there appears to be grounds for real concern about access to justice”

According to Home Office submissions to the court, they will have had to cancel 69 removals scheduled for 14 and 15 March 2019 .

Medical Justice, a small charity that assists migrants suffering mistreatment in immigration detention, brought the case. Permission was granted for their judicial review of the policy. Suspension of the policy was granted as interim relief.  The full hearing will be in June or July.

Medical Justice says the Home Office has been secretive about how the policy operates, refusing to answer questions such as how many migrants have been subjected to it. It is possible that the majority of the 27,000 people who are detained each year, as well as tens of thousands of migrants in the community, have been subjected to it, says the charity

The policy includes 'removal windows' during which, depending on the type of case, between 72 hours and seven days notice is 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 ‘limbo’ seemingly indefinitely.

A removal window notice can be given where arrangements for the person’s removal has not yet been made. The Home Office’s rationale is to prompt migrants to raise any human rights claims or other reasons for remaining in the UK. However migrants are expected to do this within the very short notice periods which is almost impossible if they do not have a lawyer. Even if they do make those further submissions within the short notice period, there is no time limit on when the Home Office have to make a decision and almost invariably it is made during the removal window – when the migrant does not know when they will be removed. Decisions which could be challenged in the courts can then be given to migrants shortly before removal and even on the same day, making it impossible for the individual to challenge an unlawful removal.

Migrants who have had applications or appeals previously refused may have valid reasons to make fresh submissions. For example, key issues were not previously identified, adequately evidenced and properly considered, including indicators that an individual was a trafficking victim. Or the person may have been in the UK for decades, and have UK-born children or grandchildren, or their circumstances may have changed. Whether an immigration claim or a fresh submission has been outstanding for many years or made at or after the point of arrest, the Home Office can refuse them at the same time the migrant is arrested, detained and taken to an airplane. Cases where individuals are removed from the UK without access to legal advice are of particular concern 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.

Case-study : A 'Windrush' 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 has lived here ever since and has a British son. He was arrested without warning 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 where he was held. Fortunately, his ex-partner was able to engage a solicitor who obtained an injunction the evening before he was due to be removed to Jamaica. The evidence which the solicitor obtained was voluminous – over 500 pages covering almost 30 years of continuous residence, including Home Office records, tax and NI records, DWP records, GP medical records, local authority records, DVLA records and correspondence from official sources. This could definitely not have been compiled with 72 hours. The Home Office eventually confirmed he had Indefinite Leave to Remain all along and that they had unlawfully detained and attempted to remove him.

A Medical Justice spokesperson said: “Denying extremely vulnerable people access to justice on this massive scale is a hidden issue causing serious harm and risking life. Many of our sick clients are subject to 'removal window' – we don’t know if they will still be in the UK from one day to the next. Clients we have managed to remain in contact with have described terrible consequences of being removed with no legal advice and access to the courts. Some have been removed to countries they fled persecution from, and have not been heard of again. The Home Office must bear some responsibility for their fate.

"No one is surprised anymore when you describe how the Home Office systematically treats unwanted migrants with contempt, putting many lives in danger. The ‘Windrush scandal’ revealed deliberate callousness, incompetence and chaos of the Home Office – this will not be made better when the Home Office starts to deal with millions of new EU settled status applications, as well as associated detentions and deportations.”

Law Society of England and Wales president, Christina Blacklaws, said: “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.

“The Law Society welcomes the High Court decision to suspend the current immigration policy which unjustifiably allows for people to be ejected from the UK with just hours’ notice, creating a grave risk of unlawful removal that may put lives at risk.”

* The charity Medical Justice sends volunteer doctors into immigration removal centres to assist detainees, documenting scars from torture, medical conditions, and injuries sustained during removal attempts http://www.medicaljustice.org.uk/

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