Immigration Ignominy: Court of Appeal rules Home Office short notice immigration policy unlawful

November 5, 2020

3 min read

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What's going on here?

The Court of Appeal has ruled that a Home Office policy allowing the deportation of migrants with as little as 72 hours’ notice is unlawful as it obstructs their access to justice.

What does this mean?

The Home Office has become embroiled in controversy (to see our articles on that, click here and here) over its efforts to tow a tough line on immigration (to see our article on that, click here).

In March 2019, interest groups Medical Justice and the Public Law Project along with solicitors at Duncan Lewis brought a legal challenge against the Home Office. They were challenging a policy which imposes a notice period of between 72 hours and seven days during which individuals can make legal representations to remain in the UK. Once this notice period has elapsed, they can be deported at any time over the following three months without further warning. The policy has been used in over 40,000 removal cases since its inception in 2015. The claimants submitted that such a limited notice period shuts migrants out of the legal process and denies them access to justice.

The legal battle culminated on 21 October 2020 when the Court of Appeal unanimously ruled the policy to be unlawful. It held that the notice period obstructs access to justice by not affording “sufficient opportunity for the individual to challenge any adverse decision relevant to their removal”. The court added that access to justice is “an absolute and inviolable right, not a relative right to be balanced against other rights and interests, the convenience of the executive or the courts.”

What's the big picture effect?

The threat this policy poses to migrants’ access to justice, and therefore the significance of this ruling, cannot be understated. By precluding their ability to make legal representations to remain in the UK, it is likely that the policy has enabled the wrongful deportation of thousands of individuals who had the right to remain. If this is the case, it unjustly placed many vulnerable individuals and families into hardship, without having given them a chance to plead their case. Individuals who are deported without access to legal representation are unlikely to be known about by any independent organisation, which makes it difficult to determine the true extent of the policy’s impact.

This decision reinforces the absolute and universal nature of the right of access to justice. A core principle of the rule of law, access to justice enables individuals to challenge unlawful decisions and hold decision-makers accountable. It seeks to protect our fundamental freedoms and strengthen our democracy. However, if it is to do so effectively, it needs to be impartial, non-discriminatory and available to all. By promoting this fundamental right for migrants and placing its importance above the need for an expedient removal process, the Court of Appeal has taken a crucial step towards equal access to justice for all.

While the Home Office has acknowledged that its “immigration and asylum system is fundamentally broken”, it is yet to set out plans for reform. It is possible that reform will involve an extended notice period, increased scrutiny of removal decisions and investigations into potentially wrongful deportations. All eyes will be on Priti Patel and her department over the coming weeks to observe how they seek to balance their vow to take a tough line on immigration with respect for fundamental rights.

Report written by Isobel Deane

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