Medical Justice, R (on the application of) v Secretary of State for the Home Department

This is an appeal from the order dated 28 July 2010 of Silber J allowing the respondent's application for judicial review and granting a quashing order in respect of paragraphs 3.1.1 to 3.1.5 in section 3 of the appellant's policy document entitled "Judicial Review and Injunctions".

The parties are agreed that the reference only to paragraphs 3.1.1 to 3.1.5 in the judge's order is in error. It is common ground that the judge intended to quash section 3 of the policy document save insofar as the policy applies to Port cases as referred to in paragraphs 3.1 and 3.1.6 of the policy.

Section 2 of the policy document sets out the procedure to be followed when removal directions are set. Paragraph 2.1 sets out the standard period of notice for removal directions:

Paragraphs 3.1.1 to 3.1.5 deal in greater detail with the first to the fifth of the exceptions listed in paragraph 3.1. Paragraph 3.1 also contains a sixth exception, Port cases which are dealt with in more detail in paragraph 3.1.6 but which are not relevant for the purposes of this appeal.

The lawfulness of the Section 3 policy was challenged on a number of grounds see paragraph 3 of Silber J's judgment dated 26 July 2010: [2010] EWHC 1925 (Admin). The judge concluded that the Section 3 policy referred to as the "2010 exceptions" in the judgment was unlawful because it abrogated the constitutional right of access to justice. He also found that the reduction of the 72 hour notice period in two of the five categories, those where there was a risk of suicide/self harm and unaccompanied children where there was a risk of absconding, was unlawful because the appellant had not complied with her duties under section 49A of the Disability Discrimination Act 1995 and Section 7(1) of the Race Relations Act 1971.

The judge's overall conclusions on the main issue are contained in paragraphs 171 to 173 of his judgment:

“171.

The main challenge of the claimant to the 2010 exceptions was that it abrogated the constitutional right of access to justice. This right means that every individual must be in a position to challenge a decision in the court. This right was acknowledged by the Secretary of State in the 2007 policy document which stated that "we need to ensure that persons, subject to removal enforced removals have sufficient time between the notification of the [removal directions] and the date/time of removal to seek legal advice and/or to apply for [judicial review]". Further the Chief Executive of UKBA stated in a letter dated 1 March 2007 in relation to the minimum 72-hour time frame that "in setting the revised minimum time frames for notification of removal we have had to balance the need to ensure proper access to court with the public interest in establishing a robust removal process that makes sufficient use of limited detention facilities".

172.

Unfortunately, the 2010 exceptions do not take account of "the need to ensure proper access to the courts" as they permit the Secretary of State to depart from the standard policy of giving a minimum of 72 hours' notice of removal including at least two working days with the last 24 hours being on a working day. The effect of the 2010 exceptions is that in practice in the limited time available between serving the removal directions and the actual removal, it is frequently almost impossible that somebody served with removal directions will be able to find a lawyer who would be ready, willing and able to provide legal advice within the time available prior to removal let alone in an appropriate case to challenge those removal directions. There is a very high risk if not an inevitability that the right of access to justice is being and will be infringed. Miss Rose suggested that the Secretary of State could have provided at her expense an independent lawyer to advise those served with abridged notice.

173.

Unfortunately, there are no adequate safeguards built in to the present policy which would ensure that removal could not take place. If somebody had been given very short notice of removal and then in the time available before removal it was impossible for him to contact a lawyer and to obtain advice. There are instances which are set out in paragraphs 108 and 109 above and which show how the policy functions and how it could preclude those served with short notice from enjoying the basic right of access to justice. This means the policy in the 2010 exceptions and which is contained in Section 3 of the 2010 policy document, which was suspended as a result of an interim judgment by Cranston J, has to be quashed. I should record that I considered the possibility that I should not quash the policy but that instead should merely await challenges in individual cases but that is not appropriate because in many cases where access to justice is not available to those served with abridged notice pursuant to the 2010 exceptions, they will be deported and will be unable to pursue their claim from abroad. There are also, as I have explained other grounds for quashing parts of the policy in Section 3 of the 2010 document. Finally I should stress that nothing in this judgment casts any doubt on the legality of the minimum 72 hour time frame and the effect of this quashing order is that those covered by the 2010 exceptions now fall within that time frame.”

There are now effectively three grounds of appeal. First, it is submitted that the judge impermissibly extended the substantive content of the common law right of access to the courts by concluding that the common law principle required the provision of legal advice to a person served with removal directions and that, absent the provision of such advice, removal from the United Kingdom would be unlawful. In the appellant's skeleton argument it was submitted that:

Second, since it is the lawfulness of the Section 3 policy that is in issue and not the lawfulness of any particular removal under the policy, it is submitted that the judge should have applied the approach of this court in R(Refugee Legal Centre) v SSHD  [2004] EWCA Civ 1481, [2005] 1 WLR 2219 and asked himself the question whether there is in the section 3 policy "a proven risk of injustice which goes beyond aberrant … decisions and inheres in the system itself " (see paragraph 7 of the judgment of the court) but that the judge failed to do so. Instead, Mr Swift QC submitted on behalf of the appellant, the judge had asked himself whether it would be possible for there to be an unlawful removal (unlawful because there was insufficient time for the person to be removed to obtain access to the court) applying the section 3 policy. Third, it is submitted that the judge erred in concluding that the appellant had not discharged her duties under the Disability Discrimination Act and the Race Relations Act in respect of the two categories of case to which I have referred.

In support of his submission that the judge had impermissibly extended the common law principle that access to the court must not be abrogated because the judge had incorporated a requirement that legal advice must be provided in all circumstances, Mr Swift took us to a number of passages in the judgment. In paragraph 45 the judge said:

“Mr Swift disputes these submissions because he points out that Daly is concerned with a prisoner's right to legal advice in the context of the right to search a prisoner's property which included correspondence with legal advisors. That is correct but a person subject to removal directions has, in Lord Steyn's words in Anufrijeva quoted in paragraph 43 (c) above, to be "in a position to challenge the decision in the courts" and that means a genuine opportunity. The importance of having this opportunity was expressly recognised by the Secretary of State in the 2007 policy document, which stated, as I have explained that "we need to ensure that persons, subject to removal enforced removals have sufficient time between the notification of the [removal directions] and the date/time of removal to seek legal advice and/or to apply for [judicial review]". Further, as I will explain in paragraph 63 below, the Chief Executive of UKBA stated in respect of the minimum 72-hour time frame that this required UKBA "to balance the need to ensure proper access to court with the public interest in establishing a robust removal process". The correct recognition in those passages of the need for somebody served with removal directions "proper access to justice" as well as to "have sufficient time between the notification of the [removal directions] and the date/time of removal to seek legal advice and/or to apply [to court]" means that it must be necessary for someone served with any removal directions, which must include those served with abridged notice under the 2010 exceptions and who so wishes to have sufficient time between service of the removal directions and the time fixed for removal to find and instruct a lawyer who:-

(i)

is ready to provide legal advice in the limited time available prior to removal, which might also entail ensuring that the provider of the advice would be paid;

(ii)

is willing and able to provide legal advice under the seal of professional privilege in the limited time available prior to removal which might also entail being able to find and locate all relevant documents; and

(iii)

(if appropriate) would after providing the relevant advice be ready, willing and able in the limited time available prior to removal to challenge the removal directions.”

The judge repeated the "ready, willing and able" formulation in paragraph 60 of the judgment:

“I have already explained that to have access to justice, the person subject to removal(other than those who wish to be removed and have consented in writing) need in the limited time available prior to removal to have a genuine opportunity to find a legal adviser who is ready, willing and able to provide legal advice and who (if appropriate) would after providing the relevant advice be ready, willing and able in the limited time available prior to removal to challenge the removal directions. Otherwise he or she would not have access to justice. I have already explained in paragraph 45 how this genuine opportunity was something which the Secretary of State explained in the 2007 policy document that the United Kingdom Border Agency needed to ensure.”

A similar point is made in paragraph 62 in which the judge says that the processes of finding a lawyer, instructing a lawyer and enabling a lawyer in an appropriate case to make an application to the court

“....cannot be short-circuited and they usually inevitably take substantial periods of time. Not surprisingly, the 72-hour procedure referred to in the standard directions has been described by Ms Lin Homer the Chief Executive of UKBA as "quite tight" in a letter of 26 January 2007. Miss Rose submits that the 2010 exceptions, which reduced the 72-hour period, have to be considered in the light of this statement and the fact that there are now far fewer immigration lawyers available than when Ms Homer made that statement."

When dealing with what are described in the policy as “the safeguards”, the judge said in paragraph 88 of the judgment:

“A fourth very serious, if not crucial, limitation on the access provision is that it does not state or even imply that removal directions should be deferred if the individual has in the time available between receipt of the direction and the time for removal been unable to obtain legal advice in spite of exercising his or her best efforts to do so or perhaps more importantly he could not conceivably have been able to obtain legal advice in the time available.. Indeed there is no obligation or more importantly perhaps even no discretion to defer removal in those circumstances and particularly where the right of access to justice has clearly been infringed.”

A similar point is made in paragraph 90, and in paragraph 99 the judge concluded as follows as to the adequacy of the safeguards:

“I am driven to the conclusion that the safeguards do not ensure those about to be removed under the 2010 exceptions have adequate safeguards built in to ensure that they have access to justice. It is clear that the standard 72 hour minimum time frame was as Ms Homer explained a result of the obligation "to balance the need to ensure proper access to court with the public interest in establishing a robust removal process that makes sufficient use of limited detention facilities". There is no such balance in 2010 exceptions of providing a minimum period of notice built into the safeguards, nor are there any provisions precluding removal if the person subject to removal could not obtain access to any lawyer or to legal advice in the period between service of the removal instructions and actual removal.”

The judge considered sections 4 and 5 of the policy document which deal respectively with "Handling judicial reviews " and "Threat of judicial review". The introductory paragraph to section 4 states:

Much the same point is made in the introductory paragraph to section 5 of the policy document:

Having considered those parts of the policy document, the judge concluded in paragraphs 103 and 104 of the judgment:

“103.

I do not consider that these provisions guarantee or even show that those about to be removed have effective access to the courts. Each of the circumstances in which deferral takes place can only in practice occur after first a lawyer has been consulted, second the lawyer can properly be funded, third he or she then has had an opportunity to consider the relevant papers, fourth he or she is than able to take instructions and fifth the lawyer has been able to reach a conclusion which enables him or her to make a threat of proceedings. There are great difficulties about reaching that stage in the limited time available, which can be wholly or mainly outside office hours when the 2010 exceptions are applied as I have explained in paragraphs 60 to 80 above.

104.

The stark fact is that there is no provision which states that removal will be deferred where a person subject to the 2010 exceptions could not conceivably have been able to obtain legal advice and legal advice or even where that person has made all reasonable efforts to obtain legal advice and access to the courts but nevertheless has been unable to do so in the very limited time available.”

Mr Swift drew particular attention to those passages in paragraphs 88, 99 and 104 in which the judge had said that there was no provision for deferral of removal where the person to be removed had made all reasonable efforts or his or her "best efforts " to obtain legal advice and assistance but had been unable to do so in the time available.

Read in isolation and out of context, there are indeed sentences or, more usually parts of sentences, in the paragraphs of the judgment to which I have referred which might have suggested that the judge was saying that legal advice must have been obtained if access to the courts was not to be abrogated, but if the passages on which Mr Swift relies in the judgment are read in the context of the judgment as a whole it is clear that the judge was not making any extension to the common law principle that access to the courts must not be abrogated. He had not been asked to make any such extension by the respondent.

The judge was concerned with the availability of legal advice and assistance only insofar as that matter had a bearing on the time that was needed to obtain effective legal advice and assistance. I refer to “effective” legal advice and assistance because the mere availability of legal advice and assistance is of no practical value if the time scale for removal is so short that it does not enable a lawyer to take instructions from the person who is to be removed and, if appropriate, to challenge the lawfulness of the removal directions before they take effect.

There seems to have been no issue before Silber J that, in order to have effective access to the courts, the person served with removal directions did need to have a reasonable opportunity to obtain legal advice and assistance if they wished to do so. In the nature of things, English will not be the first language of many, perhaps most, returnees. Even if such persons do have an adequate command of the English language they will usually be in detention and, as Silber J pointed out in paragraphs 50 to 59 of his judgment, even at the removal stage of the process complex legal issues may still arise. Indeed, as part of her case before Silber J and before this court, the appellant has emphasised the fact that free legal advice is available at all stages of the process, both in the appellate process prior to the setting of removal directions and upon detention for the purpose of implementing removal directions. Our attention was drawn to the explanatory notes on the back of form IS91R, the notice given to a detainee which explains the reasons for his detention. At the relevant time the notes referred the detainee to the free legal advice and assistance that was then provided by the Immigration Advisory Service (IAS) and Refugee and Migrant Justice (RMJ). The current version of the notes refers the detainee to the community legal advice helpline.

On the assumption that legal advice would be available Silber J was concerned with the practicalities of obtaining that advice in sufficient time for it to be effective. Would there be a sufficient time between the service of the removal directions and the removal itself to enable a legal adviser to challenge the lawfulness of the removal directions? If the answer to that question was no, time would not be sufficient, then the Section 3 policy abrogates the right of access to the courts to challenge the lawfulness of the removal directions.

In my judgment the appellant's submission under ground 1 erects an Aunt Sally and, in knocking it down, ignores the judge's careful consideration of the evidence as to whether the section 3 policy did afford a sufficient time for the making of such a challenge, and it also ignores the repeated references in the judgment to "the time available" or "the limited time available" in the passages in the judgment to which I have referred above. While the judge did refer to those persons who had been unable to obtain legal advice in spite of their best efforts to do so, his emphasis in those passages in the judgment was upon their inability to obtain legal advice and assistance in the time available: see for example paragraph 88 of the judgment.

More importantly, the appellant's submission that the judge was laying down some new principle or principles relating to the provision of legal advice rather than addressing the time required for the provision of effective legal advice is belied by the final sentence of the judgment in which the judge made it clear "that nothing in this judgment casts any doubt on the legality of the minimum 72 hour time frame (in Section 2 of the policy document)". As the judge had explained in paragraph 32 of his judgment, the standard notification of 72 hours was not in issue in the claim before him.

Reading the judgment as a whole, it is clear that the judge was simply concerned with the adequacy of the reduced time scale permitted by section 3 of the policy document, which prescribes no minimum time frame whatsoever. It seems to me, therefore, that ground 1 is based on a misunderstanding of the judge's conclusions.

The judge set out the relevant passages from the Refugee Legal Centre case in paragraph 33 of his judgment. Having done so, the judge said at the end of that paragraph :

Having said that he was going to apply that approach, it would be surprising indeed if the judge had failed to do so. In my judgment he did not fail to do so. I have referred to the judge's conclusion in paragraph 172 of the judgment that:

The judge examined the evidence in great detail and it is significant that there is no challenge to his factual conclusions as to why a period of less than 72 hours was inadequate. Given those factual conclusions, it is perhaps unsurprising that the judge also concluded that there was a very high risk of injustice which was inherent in the system of removing certain classes of persons on less than 72 hours' notice.

Having identified the risk, for the reasons set out earlier in the judgment, the judge considered whether the Section 3 policy contained "clear safeguards" which obviated "any substantial risk of a real possibility of interference with the right of access to justice of those who receive abridged notice under the 210 exceptions": see paragraph 82 of the judgment.

In paragraphs 83 to 99 of the judgment the judge carefully considered the six numbered safeguards and the last two sentences of paragraph 3.1 of the policy, which the judge called "the access provision". Mr Swift submitted that the judge had erred by considering the safeguards individually rather than their cumulative effect. In my judgment there is no force in that submission. For the purposes of exposition the judge had to consider each individual safeguard, but, having done so, he also considered their cumulative effect. See paragraph 99 of the judgment in which the judge said in part:

“I am driven to the conclusion that the safeguards do not ensure those about to be removed under the 2010 exceptions have adequate safeguards built in to ensure that they have access to justice. It is clear that the standard 72 hour minimum time frame was as Ms Homer explained a result of the obligation "to balance the need to ensure proper access to court with the public interest in establishing a robust removal process that makes sufficient use of limited detention facilities". There is no such balance in 2010 exceptions of providing a minimum period of notice built into the safeguards, nor are there any provisions precluding removal if the person subject to removal could not obtain access to any lawyer or to legal advice in the period between service of the removal instructions and actual removal.”

Paragraph 3.1 of the policy is set out in full above, but for convenience I will repeat the access provision:

The judge dealt with Mr Swift's submissions as to the effect of the access provision in paragraphs 84 to 88 of the judgment :

Although Mr Swift criticised certain aspects of the four reasons given by the judge as to why the access provision was not an adequate safeguard, in the end it turned out that those criticisms all turned upon his proposition that the final sentence of paragraph 3.1 contained what he described as "an overriding requirement" that the person to be removed should have effective access to the courts. It was submitted that the word “may” in the sentence merely gave a degree of flexibility as to what additional safeguards might be necessary in order to meet that overriding requirement.

Ms Rose QC, on behalf of the respondent, pointed out that construing the final sentence in paragraph 3.1 of the policy as such "an overriding requirement" would go against the whole grain of the Section 3 policy, which, on the judge's factual findings, did not ensure that removees had effective access to the courts. Such an "overriding requirement" would defeat the object of the policy, which was to allow less than 72 hours' notice of removal, when it was the brevity of that abridged notice period that was, so the judge found, the underlying problem. This simply could not be cured by "other safeguards". That was not surprising because the premise underlying the Section 3 policy was that less than 72 hours notice was sufficient to ensure effective access to the court. In the light of the judge's conclusions it is plain that that was a false premise. No particular safeguards that would be effective had been suggested.

In my judgment the final sentence of paragraph 3.1 must be read not in isolation but in the context of the Section 3 policy as a whole, and if that is done it does not impose an obligation on those setting shortened removal directions under section 3 to ensure that the timescale is such that all removees will have effective access to the courts. The position might have been different if the final sentence of paragraph 3.1 had said words such as "other safeguards must be built in on a case by case basis to ensure that all removees have effective access to the courts". However, given the remainder of the policy, even such a forthright statement might well have been insufficient or at best confusing, because, on the judge's findings, the only effective way of ensuring that the right of access to justice is not abrogated would be an access provision along the following lines:

For these reasons I am satisfied that there is no substance in the second ground of appeal.

In view of my conclusions on grounds 1 and 2, ground 3 is academic for practical purposes and I can deal with it very shortly. The judge's reasoning on this aspect of the respondent's challenge to the policy is contained in paragraphs 151 to 168 of the judgment. It is unnecessary to repeat the judge's detailed analysis of the relevant law and the facts on this issue. Ground 3 does not contend that the judge erred in applying the law. It focuses upon a very narrow factual issue: whether, properly construed, an Equality Impact Assessment (EIA) of the 4 January 2010 merely assessed the impact of the three new exceptions that were added to the section 3 policy in 2010 or whether it also extended to an assessment of the impact of the two pre-2010 exceptions, namely those at risk of self harm or suicide and unaccompanied children where there was a risk of absconding. If the assessment was not carried out in the 2010 EIA, then there is no evidence that the appellant's equality duties were complied with by any other means: see paragraph 161 of the judgment.

Mr Swift took us through the 2010 EIA, but for my part, for the reasons given by the judge in paragraph 160 of the judgment, it is apparent from the face of the 2010 document that it was dealing with the impact of the three new exceptions and not with the impact of the pre-existing exceptions. I would therefore dismiss the appeal on ground 3.

For the sake of completeness, I should mention that, in an additional ground of appeal, Mr Swift challenged the judge's decision not to exclude paragraph 3.1.5 of the policy and the fifth bullet point in paragraph 3.1 (those passages dealing with cases where the removee consents to early removal) from the quashing order. The judge explained in paragraph 80B of his judgment why this aspect of the policy had not been excluded from the quashing order. In summary the exclusion had not been sought at the hearing before him. With the benefit of hindsight the wisdom of the judge's decision in this respect can be appreciated. The point is very far from being straightforward. This new ground of appeal generated a mass of evidence from both the appellant and the respondent as to the circumstances in which a removee might consent to removal in the context of a time frame of less than 72 hours and then think better of it. It is unnecessary to go into any of the detail. There is an underlying concern that, in the very short timescale available in the section 3 removal cases, it will not be possible to ascertain whether genuinely informed consent was given and, if it was not, then to challenge removal. The consent exception is based upon the same premise as the other exceptions, that is to say that giving less than 72 hours' notice and in some cases virtually no notice at all, does not give rise to a very high risk that the right of access to justice is being and will be infringed. That premise is a false premise, for the reasons given by the judge. It follows the judge was right to quash the whole of the section 3 policy with the exception of those parts that relate to Port cases.

In conclusion I would dismiss this appeal.

I agree.

I also agree.