FB v The Secretary of State for the Home Department

THE IMMIGRATION ACTS

Before

THE HON. MR JUSTICE LANE, PRESIDENT

UPPER TRIBUNAL JUDGE O’CONNOR

Between

FB

NR

(ANONYMITY DIRECTION MADE)

Applicants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

THE PUBLIC LAW PROJECT

Intervener

Representation :

For the Applicants: Ms S Naik QC and Mr A Bandegani,

instructed by Duncan Lewis Solicitors

For the Respondent: Mr S Kovats QC and Mr C Thomann,

instructed by the Government Legal Department

For the Intervener: Ms C Kilroy and Ms A Pickup, instructed by the Public Law Project

The Secretary of State’s “removal window” policy, as set out in Chapter 60 of the General Instructions of 21 May 2018, was, as a general matter, compatible with access to justice but was legally deficient, both in its treatment of cases where a removal window is deferred and in the lack of information regarding place and route of removal.

JUDGMENT

A. Introduction

1. A nation state has a right to control who comes onto its territory. In states that observe the rule of law, the right is to be exercised compatibly with that rule. A state may, in addition, decide to circumscribe its powers of control by means of domestic legislation or as a result of obligations under international treaties, to which the state is a party.

2. These “rolled-up” judicial reviews concern challenges to the way in which the respondent seeks to secure the removal from the United Kingdom of those whom he considers have no legal basis for entering or remaining in this country. Specifically, the applicants, who were each to be removed by the respondent in November 2017, assert that the respondent cannot lawfully operate a “removal window” policy, as set out in Chapter 60 of the General Instructions (Judicial reviews and injunctions), published by the respondent. In both cases, the Upper Tribunal granted a stay on removal, following which the applications were directed to be dealt with on a “rolled-up” basis. The Tribunal also granted permission to the Public Law Project (PLP) to intervene in the proceedings.

3. The present cases concern removal under section 10 of the Immigration and Asylum Act 1999. Before looking at that power, however, mention needs to be made of sections 3 and 5 of the Immigration Act 1971 (read with section 32 of the UK Borders Act 2007). Section 3(5) of the 1971 Act provides that a person who is not a British citizen is liable to deportation if the respondent deems his deportation to be conducive to the public good or another person to whose family he belongs is or has been ordered to be deported. A person liable to deportation may be the subject of a deportation order, made under section 5, requiring that person to leave and prohibiting him from entering the United Kingdom.

4. Section 10 of the 1999 Act is entitled “Removal of certain persons unlawfully in the United Kingdom”. So far as relevant for present purposes, it provides as follows:-

“(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.

…

(7) For the purposes of removing a person from the United Kingdom under subsection (1) … the Secretary of State or an immigration officer may give any such direction for the removal of the person as may be given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.

…”

5. In substance, paragraphs 8 to 10 of Schedule 2 to the 1971 Act enable an immigration officer to give directions to the captain of a ship or aircraft, requiring the captain to remove the person concerned from the United Kingdom in that ship or aircraft. Directions may also be given to the owners or agents of the ship or aircraft, requiring them to remove the person from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents. Such owners or agents may, additionally, be given directions requiring them to make arrangements for the person’s removal to a country or territory specified by the Secretary of State, being either:-

“(i) a country of which he is a national or citizen; or

(ii) a country or territory in which he has obtained a passport or other document of identity; or

(iii) a country or territory in which he embarks in the United Kingdom; or

(iv) a country or territory to which there is reason to believe that he would be admitted.” (paragraph 8(1)(c)).

6. The challenges brought by the applicants, supported by the PLP, are directed at Chapter 60. The relevant version of Chapter 60, for our purposes, is that published on 21 May 2018. Although this was after the date on which the current proceedings commenced, it was effectively common ground (and we consider) that this latest version is the one that requires to be substantively examined.

B. An overview of Chapter 60

7. The 21 May 2018 version of Chapter 60 is set out in full in the Annex to this decision. It is, however, convenient at this point to highlight its salient features, for the purposes of this case. In doing so, we are not helped by the fact that this version, unlike its predecessor, is not numbered internally.

8. The guidance begins by stating that the “Version includes some additional interim clarification concerning Deferral of Removal …”. We accept the respondent’s evidence that the provisions in question are “interim”, only in the sense that the respondent does not intend to revert to the position where no such “clarification” is made. Whether, in the circumstances, the term “interim” was helpful is, perhaps moot.

9. The guidance describes certain types of event that could be subject to judicial review. These comprise a failure to act; the setting of removal directions; the refusal to accept that further submissions amount to a fresh claim; a decision to certify a claim as clearly unfounded; and detention.

10. Under the heading “Notice of removal” it is stated that notice of removal may be given in three different forms:-

“• Notice of a removal window – the person is given notice of a period, known as the removal window, during which they may be removed.

• Notice of removal directions – the person is given notice of removal directions and thus knows the exact date of departure.

• Limited notice of removal – a more restricted version of the removal window form of notification.”

11. A notice of removal window makes it plain that the “window” is a period “during which removal may proceed without further notice”. A notice of removal window is said to be suitable for persons being removed under section 10 of the 1999 Act and those being deported under section 3 of the 1971 Act.

12. A notice of a removal window will give a “notice period”. When the notice period ends, the removal window begins and a person “may be removed during the removal window”.

13. The notice period begins when the notice is given to the person concerned, at the time the notice is given. A notice of removal window is not to be given to a person who has leave to enter or remain or to a person who is able, within the relevant time limit, to file an in-country notice of appeal or administrative review, or where such is pending.

14. As already stated, the removal window says when the notice period ends. The removal window “will run for a maximum of three months” from the time the notice of liability for removal or deportation decision letter is served. If, however, a removal window has not expired, it can be extended “by way of reminder for a further 28 days”.

15. The guidance states that if a person “makes an asylum, human rights or EU free movement claim, involving issues of substance which had not been previously raised and considered, or a further application for leave, the window ends”.

16. Where a removal window has expired, or where removal is not via one of the “safe countries” listed in section 3.2 and which was not notified in the original notice, then a fresh removal window has to be notified, with the result that a new notice period will begin. The form concerned (RED.0004 (Fresh)) may specify a “range of potential transit points”.

17. The guidance then turns to the requirement for notice of liability for removal to be accompanied by an “Immigration Factual Summary”, which must have a chronology of the case history of the person concerned, including details of whether any appeal rights were exercised in past applications for judicial review. Both the notice of liability for removal or deportation decision letter must be copied to any legal representative, where the respondent has details of such, or where a person asks for a specified representative to be sent copies.

18. If a person is detained or arrested for removal later on the same day but states that their circumstances have changed or that they wish to access legal advice, the guidance states that they will not be removed whilst they are seeking such advice, or have representations outstanding. Where representations do not amount to a fresh protection or human rights claim and have either already been considered or had not previously been considered but would not create a realistic prospect of success “in terms of leading to an outcome other than removal from the UK”, the individual in question can be removed on the same day “once we have considered the outstanding representations”.

19. The guidance says that certain categories are not suitable for a removal window. These include “family cases” (which are defined); cases where a person has made a protection or human rights claim, or appeal, which is pending; and where the Home Office has evidence, beyond a self-declaration, that a person is suffering from a condition listed as a risk factor in the adults at risk in immigration detention policy, or some other condition that would result in the person being regarded as an adult at risk under that policy.

20. The guidance then deals with the requirements to be met in connection with giving a notice of removal directions. These include the fact that the person concerned “must be given adequate notice that removal has been scheduled”. In the case of a detainee, notice should ideally be given as soon as removal directions have been set.

21. Reference has already been made to the notice period, prior to the opening of the removal window. If the person concerned is not detained, the notice period is seven calendar days. Otherwise, subject to exceptions described in the section of the guidance entitled “Consideration of deferral of notice period”, the period must be one of the following:-

“• normal enforcement cases – minimum 72 hours (including at least two working days).

• third country cases and cases where the decision certified the claim … minimum five working days (unless the case has already been reviewed by JR …)”.

22. The guidance then goes into detail, by reference to examples, regarding what is meant by a minimum of 72 hours with at least two working days. We then reach the part of the guidance entitled “Consideration of deferral of notice period”. This section is new, in that it does not correspond to anything in existence before 21 May 2018. The section is heavily relied on by the respondent in contending that the notice of removal policy is lawful. As we shall see, the primary position of the applicants and the PLP is that the policy is fundamentally unlawful and cannot be rescued by this section. However, if contrary to that primary position, it is possible for the respondent to operate a notice of removal window policy, the applicants and the PLP contend that the section is, in any event, deficient.

23. The section begins as follows:-

“Whether or not they are detained, individuals must be allowed a reasonable opportunity to access legal advice and have recourse to the courts. The purpose of the notice period is to enable individuals to seek legal advice. If, during the notice period, an unrepresented person is yet to instruct a legal representative you [the case worker] must always consider deferring the removal window for an additional period.

It is reasonable to expect individuals who are aware that they have not been successful in an immigration claim and/or appeal and/or that outstanding representations may be or have been rejected to act promptly in seeking legal advice. Each case for deferral must be considered on its individual merits. The key consideration is whether the person has had a reasonable opportunity to access legal advice and recourse to the courts.”

24. The section then deals with three specific matters: Change of legal representatives; access to legal advice in detained cases; and access to relevant documentation. So far as concerns the change of legal representative, the guidance states that a delay caused by this may be unavoidable and consideration should be given based on the merits of the case, such that it may be reasonable to defer removal “for an additional period” where the person concerned has “unavoidably lost contact with previous representatives”. On the other hand, it is stated that deferral should not normally be considered where there is no clear reason provided for the change of representatives (and the case worker has asked for reasons); or where there is cause to believe that the motive for the change is to bring about a postponement of removal: “For instance, multiple changes in representative within a short period”.

25. Access to legal advice for detainees is provided by legal advice “surgeries”, held in Immigration Removal Centres (IRC). There is a requirement to inform detainees of the availability of these surgeries during the induction process within the first 24 hours after arrival in the IRC. Detainees also have the right to be informed of the duty solicitor scheme that operates in the individual IRC, along with relevant details. IRC welfare officers direct detainees to information concerning how to find an alternative solicitor or other immigration adviser; provide information about the Law Society and Legal Services Commission “in a language that [the detainee] can understand”; and provide copies of the Bail for Immigration Detainees (BID) notebook.

26. It is said that a request for an appointment with a surgery may be made at any time and that it is reasonable to expect an individual to make use of the 72 hour notice period at the earliest opportunity, should they wish to use the services of the surgery.

27. The section acknowledges that the 72 hour notice period may not always be sufficient:-

“Generally speaking, if an unrepresented person (in detention) wishes to obtain legal advice and cannot be given an appointment at an LAA advice surgery within the initial 72-hours notice period, the removal window should normally be deferred to enable an appointment to be arranged. However, any request for an appointment that necessitates deferral and continued detention should be carefully considered on its merits. Consideration should be given whether the individual:

• was properly notified of access to legal advice

• made their request at the earliest reasonable opportunity

• cooperated with any attempt to arrange a consultation

• delayed their request in order to thwart removal”.

28. The final part of the section, concerning access to relevant documentation, states that legal representatives “need access to relevant documents and case papers in order to properly advise their client”. It is acknowledged that there may be circumstances where an individual does not readily have access to documents, such as when they have been detained at a reporting event or have been outside the UK for a significant period.

29. Any refusal decision, notice of liability to removal and immigration factual summary “will be provided to the representatives on request” either when the individual is detained or at the point that he or she seeks legal advice on a “same day removal”. In most cases, it is considered that the Immigration Factual Summary will provide the necessary key facts and case history.

30. The next section of the guidance concerns what are called third country and non-suspensive appeal cases. As already observed, a minimum five working days’ notice must be given here, on the basis that “this is likely to be their first opportunity for legal redress”. The case worker must “satisfy yourself that they have the opportunity to access the courts before their departure is enforced”.

31. Special arrangements arise in particular cases, including charter flights. Here, the normal means of challenge is said to be “injunctive relief” and the person concerned will be given a minimum of five working days’ notice of removal “so they have the opportunity to take legal advice”. The purpose is to “minimise the number of last minute applications for injunctive relief to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland and to encourage people to inform the Home Office at the earliest opportunity of any further submissions they want to make”.

32. Under the heading “Where a second period of notification is not needed” the guidance indicates that a person who is given notice of removal directions, where the removal fails or is deferred, may not have to be given a further period of notice for removal “within ten days of the failed or deferred removal”. The ten day provision need not be operated in the case of those who are still subject to a notice of removal window (although it may do so, such as where the originally scheduled removal was “towards the end of the removal window”).

33. The guidance then deals with the circumstances in which the bringing of a judicial review will, and will not, result in the suspension of removal.

C. Form RED.0001

34. Although we have already had cause to mention form RED.0004, the primary form of notice used by the respondent in connection with the removal window process is RED.0001. It is convenient to look at this form, as it was completed and served on the applicant FB on 1 October 2017.

35. The form begins with the heading “NOTICE OF IMMIGRATION DECISION – NOTICE OF REMOVAL”. It told FB that he was a person without leave to enter or remain in the United Kingdom, who had not given reasons why he should be granted such leave, and that he was therefore “liable for removal”. The reasons for that decision were then given.

36. The form said:-

“If you do not leave the United Kingdom as required you will be liable to enforced removal to Afghanistan. We may remove you via a transit point in an EU Member State – Dubai, India, Turkey.

You may be detained or placed on reporting conditions.

If you wish to seek legal advice you must do so now.”

37. It appears that the references to Dubai, India and Turkey were intended to be references to transit points outside EU Member States, one or more which the respondent intended to use in order to effect removal to Afghanistan.

38. RED.0001 contains a number of boxes, one of which is to be ticked. The one marked in the case of FB was as follows:-

“You will not be removed before 05.10.2017 15.45. After this time, and for up to three months from the date of this notice, you may be removed without further notice.”

39. The form continued by stating that FB had no lawful basis to remain in the UK “and you should leave as soon as possible. By remaining here without lawful basis you may be prosecuted for an offence under the Immigration Act 1971, the penalty for which is a fine and/or up to six months’ imprisonment”.

40. Under the heading “IF YOU HAVE FURTHER REASONS FOR WANTING TO STAY IN THE UK” the form said “If you have reasons to stay in the United Kingdom, you must state them. This requirement is being given under Section 120 of the Nationality, Immigration and Asylum Act 2002. If you do not tell us as soon as reasonably practicable and you tell us later without good reason, you will lose any right of appeal you may have or otherwise qualify for if we refuse your claim”. Although the form does not say so, this passage is plainly a reference to section 96 (earlier right of appeal) of the Nationality, Immigration and Asylum Act 2002.

41. RED.0001 continued, in FB’s case, by stating that he must now tell the respondent about any reasons or grounds he had for wishing to remain in the United Kingdom.

42. It appears that FB was also given a sheet headed “Additional information”, telling him that he was able to engage a solicitor; that a list of solicitors was available from the library [at the Detention Centre]; and that “appointments to see legal advisers are available in the centre. Please speak to an officer if you wish to make an appointment”. It was stated that solicitors attended Campsfield House Immigration Detention Centre every Tuesday, Wednesday and Thursday. The document also said that FB “may use the internet to help you find a solicitor; the suggested starting point is the Law Society website: www.lawsociety.org.uk ”.

43. FB was also given Form RED.0003, headed “STATEMENT OF ADDITIONAL GROUNDS under section 120 of the Nationality, Immigration and Asylum Act 2002”. This form contained information on what to do, if FB considered that he had reasons for remaining in the United Kingdom, which were not merely a repeat of those already given to the respondent.

D. An overview of the challenges to Chapter 60

44. Following that overview of Chapter 60 and the forms, it is necessary to return to the challenges of the applicants and the PLP. Their primary submission is that the respondent cannot lawfully operate a removal window policy, of the kind described in Chapter 60.

45. According to the applicants and the PLP, the reason for this is as follows. In R (Anufrijeva) v Secretary of State for the Home Department and Another [2003] UKHL 36, the House of Lords held that constitutional principle requires an administrative decision which is adverse to an individual, to be communicated to the individual before it can have the character of a determination with legal effect, so enabling the individual to challenge the decision in the courts, if so wished. In the absence of express language or necessary implications to the contrary, general statutory words cannot override such a fundamental right but, rather, will be presumed by a court to be subject to them.

46. In R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court held that the constitutional right of access to justice is inherent in the rule of law. That right has long been recognised and can only be curtailed by clear and express statutory words. Any hinderance or impediment by the executive with the right requires clear parliamentary authorisation and any statutory provision authorising such an intrusion would be interpreted as doing so only to the extent reasonably necessary to fulfil a particular objective in question.

47. In R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin), Silber J held that, on the basis of the evidence before him, the respondent’s policy of giving less than 72 hours’ notice of directions for the removal of an individual at a specific time, to a specific place, was unlawful, as being contrary to the principle of access to justice. Silber J’s judgment was upheld in the Court of Appeal.

48. According to the applicants and the PLP, this case law is dispositive of the matter, in their favour. The giving of removal directions, following a notice of liability to removal under section 10 of the 1999 Act, is a discrete administrative decision, of the kind described in Anufrijeva . The judgment of the Court of Appeal in the Medical Justice case binds the Upper Tribunal to find that the giving of less than 72 hours’ notice of removal directions violates the principle of access to justice and is thus unlawful. Given that the respondent’s notice of removal window policy is predicated on the basis that, whilst the window is open, as a general matter no notice at all needs to be given of the removal directions, the notice of removal window policy in Chapter 60 must be unlawful.

49. The applicants and the PLP further contend that the Medical Justice cases did not include a finding that a minimum 72 hours’ notice of removal directions was lawful. They say this issue remained unresolved, following the Court of Appeal judgment. In the light of the contraction in the availability of legal aid, in the years following the Medical Justice cases, the applicants submit that 72 hours’ notice is incompatible with access to justice. In the course of oral submissions, a minimum period of five days was identified as a possibly suitable period.

50. Even if, contrary to the submissions of the applicants and the PLP, a notice of removal policy could be lawfully operated, along the lines set out in Chapter 60, the applicants and the PLP contend that, even in its current form, Chapter 60 is legally defective. In particular, there is uncertainty as to when a removal window ends and there is otherwise a material lack of clarity in the section dealing with deferral of the removal window. The provisions are not phrased in “mandatory” language, which the applicants and the PLP consider to be vital. Caseworkers are given inappropriate discretion concerning deferral of removal. The length of the removal window and the possibility of further such windows are capable of having a seriously adverse effect upon the individuals concerned.

51. We shall return to these challenges, and the respondent’s response to them, in more detail. First, it is necessary to look at the evidence that has been adduced by the parties, both as to the background to the present position and as regards its practical effects “on the ground”.

E. The evidence

Julia Dolby

52. The background to what is described as the development of the 72 hour policy is set out at paragraphs 7 to 17 of Silber J’s judgment in Medical Justice . It also features in the witness statement of Thakur Rakesh Singh of the PLP and in the statement of Julia Dolby, of the respondent’s Removals, Enforcement and Detention Policy Team; Illegal Migration, Identity, Security and Enforcement Policy, Borders, Immigration and Citizenship Systems Policy and Strategy Group.

53. Ms Dolby’s statement, however, deals both with this background and the events which followed, leading to the current policy. It is, therefore, convenient to draw upon Ms Dolby’s statement.

54. Ms Dolby describes the respondent’s enforcement policy as being founded on the expectation that those with no right to be in the United Kingdom should return home. The respondent expects such persons to leave voluntarily but where they do not, Immigration Enforcement will seek to enforce their departure. She says that such returns are only enforced “where both the Home Office and the courts are satisfied that an individual has no right to remain in the UK”.

55. Before the changes introduced by the Immigration Act 2014, which amongst other things, re-cast section 10 of the 1999 Act, individuals being removed were notified of their removal by way of an enforcement decision, which set out the reasons why they were subject to enforcement action, followed by a notice of removal directions setting out the arrangements for their removal, including the date of removal. That date “had to be set after a minimum of 72 hours … or unless an asylum/human rights refusal had been certified, when five working days must be given, after the individual was notified that removal directions have been set, in order to allow them time to access justice”.

56. The 72 hour period came about as follows. The respondent had previously entered into an arrangement with the High Court – known as the “Concordat” – which was intended to avoid the need for last minute injunctions. The respondent would agree to defer removal on threat of a judicial review, working on the assumption that such challenges were arguable ones that needed to be examined. The result, however, was that it was necessary to release from detention those threatening judicial review, since their claims took so long to resolve. It became apparent to the respondent that some detainees were threatening judicial review “simply to get out of detention, and in most instances the threatened JR was never lodged”.

57. This led the respondent to develop an approach whereby persons were detained and removed very quickly; but that resulted in a reduction of access to lawyers and legal remedy, with the result that the “courts held that the practice was a denial of access to justice”.

58. A new policy of providing 72 hours’ notice before removal was discussed with the then President of the Queen’s Bench Division and the previous Chief Executive of what was then the UK Border Agency in 2006/2007. The resulting policy required a change to be made to the Civil Procedure Rules. The change was aimed at reducing the impact of weak claims, designed to disrupt detention and removal. This attracted criticism from stakeholders.

59. In the event, the policy reflected in the changed Civil Procedure Rules was for a minimum notice period of 72 hours, rather than 48 hours suggested by the respondent; but with the requirement that any judicial review lodged within that period must include the full grounds. The thinking behind this was that the judicial review could be disposed of “in a matter of days”. The policy came into effect in April 2007.

60. As originally framed, the policy contained certain exceptions to the 72 hour notice period, such as where there were risks of an unaccompanied asylum seeking minor absconding or a risk of self-harm. Subsequently, further exceptions were added. However, in 2010, the Medical Justice litigation concluded that “a reasonable period between arrest and removal was required for those subject to removal to access legal advice”. Following subsequent discussions with the judiciary, the respondent amended the Operational Guidance “to say that 72 hours must always be provided between an individual being served immigration papers and the actual removal of the offender” and that the period started when “removal directions” were served.

61. Following the legislative changes introduced in the Immigration Act 2014, amendments were made to the enforced removal process. Individuals who had no leave to enter or remain, would be notified of their liability to removal and told that if they had reasons to stay in the United Kingdom, they must state them at the earliest opportunity, pursuant to section 120 of the 2002 Act.

62. Ms Dolby says that:-

“The minimum 72 hour notice period was brought forward to the time when the individual was notified of their liability to removal in order to allow sufficient time for the Secretary of State to consider any issues raised at an earlier point rather than waiting until the actual removal directions … had been made and then potentially having to cancel the removal.”

63. Ms Dolby said that the thinking behind this was concern that the previous policy, where an individual was given notice of removal directions, led to the submission of late claims that could reasonably have been raised and considered earlier in the process and that in some cases this was being used as an attempt to frustrate or delay removal. Thus:-

“The aim was to make it clear at the refusal stage that people should not be waiting until the last possible moment before removal before seeking legal advice and submitting their claims. In addition, notifying the individual of the precise time and date of their removal directions was on occasion leading to disruption on the part of some detainees in immigration removal centres … or to information being circulated on social media by action groups who are seeking to disrupt the removal, for example, by preventing access to or egress from the IRCs, contacting airlines, or seeking to prevent flights from departing.”

64. The three month removal window was introduced on 6 April 2015. This followed a threat of challenge to an earlier version of the policy, by the PLP on behalf of Medical Justice, who objected to “having a completely un-ending period from when a person was first given notice of their liability to removal”.

65. In addition to introducing a three month removal window, the minimum notice period was amended from being not within the first 72 hours for all cases to being 72 hours if detained or seven calendar days, if not detained. The respondent’s rationale was that the 72 hour policy was appropriate for the “detained environment where there is access to a “legal surgery””. By contrast, in the “non-detained environment, the Home Office accepted that we needed to give individuals more time to seek legal advice”.

66. The new removal policy included the practice of arresting a person and removing him or her “without them always being detained overnight in an immigration removal centre, sometimes called …same-day removal or Operation Perceptor cases after the initial pilot, which would not take place until after a person had been notified of their liability to removal and the seven day non-detained (notice period) had expired”.

67. Same-day removal is, Ms Dolby says, used only for those who are deemed suitable for the three month removal window and further consideration must be given to any health conditions or vulnerabilities. In same-day removal cases, the individual is always interviewed as to their current position, including health, domestic circumstances, and whether they have representatives or solicitors or any outstanding applications. The response of the individual will inform whether the same-day removal will proceed. Individuals concerned are provided with access to a telephone, with available credit, for the purpose of consulting a legal representative.

68. Ms Dolby says:-

“If the individual says that they intend to submit a protection claim and this is a first-time claim, then removal will automatically be deferred until after the claim has been decided and any appeal rights exhausted. If the individual has previously made a protection claim, this will be referred to the Operational Support and Certification Unit (OSCU) who will consider the claim and decide whether or not this amounts to a fresh protection claim and if not, whether it has already been considered; or has not been previously considered but will not create a realistic prospect of success.

If so, then the individual “can proceed to be removed on the same day once OSCU have considered the outstanding representations.”

69. Ms Dolby reiterates that where an individual has signalled a wish to make a first-time protection claim, or has made such a claim, then removal “will be deferred to enable that claim to be considered”. If the claim is refused with a right of appeal in the United Kingdom, then a fresh removal window cannot be opened until the individual has exhausted his or her appeal rights. If, on the other hand, the claim is certified under section 94 or 96 of the 2002 Act, then the individual will be given a notice period of at least five working days, for the purpose of deciding whether to bring a judicial review to challenge the certification decision.

70. Ms Dolby’s statement ends by describing aspects of the new section of Chapter 60 concerning the “Consideration of deferral of notice period”. We shall return to this later.

71. The applicants have submitted a number of witness statements, together with exhibits, including a questionnaire prepared in connection with these proceedings, and the responses to it.

Toufique Hossain (1)

72. Toufique Hossain, a partner and director of public law at Duncan Lewis Solicitors, describes the relevant work that his firm provide in this area. Duncan Lewis has contracts with the Legal Aid Agency to provide advice and representation at legal advice surgeries in a number of IRCs, including those at Campsfield, Harmondsworth and Yarl’s Wood.

73. Mr Hossain points out that IRCs do not have an out-of-hours legal advice cover. Detainees routinely wait for up to a week and may in the worst cases wait two to three weeks for appointments with surgeries. Caseworkers operating at the surgeries “must be realistic about their ability to assist somebody in the timeframe available, with regard to their other commitments”. In fact, the SRAs code of conduct requires a solicitor to take on a case only where the firm has the resources, skills and procedures available, such that it is possible to provide a service that is competent, timely and relevant.

74. Notwithstanding these difficulties, Mr Hossain’s team is, he says, “capable of taking on and dealing with urgent cases where there appear to be merits, even if it means working within a very tight and until the last minute timeframe”. He goes on to say the following:-

“Experienced practitioners in this area will know that right up until the client is on the runway on the plane, it is possible to be granted an injunction and prevent somebody from being refouled to their country of origin. Indeed, recently we have obtained an injunction after a client was put on a flight for Afghanistan via Istanbul and the Home Office had to arrange for him to be brought back from Istanbul (see exhibit “TH1”)”.

75. As we shall see, a similar case (evidenced in the witness statement of Jamie Bell) has been the subject of detailed analysis and criticism by the Lord Chief Justice in SB (Afghanistan) [2018] EWCA Civ 215.

76. Mr Hossain describes the changed legal aid landscape, so far as immigration is concerned, since the Medical Justice cases. In particular, difficulties have arisen with the LAA, concerning the Chapter 60 policy. Since the notice of removal window stipulates a three month period in which removal can take place “the LAA has mistakenly considered that an emergency application is not appropriate in most circumstances. This is based on the misunderstanding of the new form of removal notice …”.

77. Since 2010, functions previously delegated to legal aid practitioners, have been, in fact, taken back “in-house” by the LAA. Accordingly, an application to the LAA needs to be made for funding on an emergency basis.

78. Obtaining the relevant papers is also difficult and, according to Mr Hossain, likely to take 24 to 48 hours at least. In some cases the client may be able to provide contact details of the previous representatives but, even then, the speed with which the previous solicitor processes the request “can vary greatly, even when the urgency is explained”. Requests for documentation from the Home Office are often refused on the grounds that the proper means of obtaining disclosure is by making a subject access request, even though the current target for processing such requests is 40 days and a minimum of two weeks is usually expected.

79. Mr Hossain then describes the process of taking instructions, reaching conclusions that enable the individual “to make a threat of proceedings” and issuing proceedings. As regards issuing proceedings, Mr Hossain says that relevant members of the Bar “are in high demand” and also experience capacity issues. Finding counsel who has the required expertise to further the client’s interests can prove very difficult for urgent matters. This is compounded by legal aid cuts.

80. Misunderstandings regarding Chapter 60 are not confined to the LAA, in Mr Hossain’s view. Difficulties have been encountered with the Administrative Court Office:-

“with court staff refusing to seal claim forms on the same day where a notice of removal window is provided. Our clerks have reported that the problem arises because the court staff do not appreciate that the notice of removal window is a form of removal directions and therefore such applications are urgent. This confusion would appear to be caused by the misleading language and the absence of a date and time of removal, without which our clerks have trouble explaining the urgency to court office staff.”

81. Mr Hossain says that although “many legal representatives are by now aware that as the client can be removed from the date the window opens, that date should effectively be treated as the date of removal … There are still likely to be others who do not appreciate this urgency or who choose to delay because no confirmation of a scheduled flight has been received”. Prioritising cases is, in any event, challenging and so, when presented with a removal window case, “even a non-negligent legal representative may choose to make a calculated decision to prioritise another urgent matter”.

82. Mr Hossain is concerned by the uncertainty, stemming from Chapter 60, as to when a removal window ends. In a recent case, a client made an asylum claim, after being given a notice of removal window, but was then served with a further such notice, which the respondent wrongly said “will sit alongside the claimant’s asylum claim”.

83. In general, Mr Hossain says that the Chapter 60 policy “is routinely misapplied”, which suggests a number of things to him, including that the policy has inherent uncertainty and confusion contained in it.

84. Mr Hossain concludes his first statement by saying that it is clearly desirable and would assist individuals if the “standard, obligatory notification letters sent to both parties when the removal window has come to an end for a Chapter 60 reason”. That would permit legal representatives to identify a breach or act as necessary if such a letter is not received.

Pierre Makhlouf

85. Pierre Makhlouf, Assistant Director of Bail for Immigration Detainees (BID) describes his charity as existing “to challenge immigration detention in the UK”. Demand for BID’s services has increased as legal aid has been “systematically reduced through successive cuts”. Mr Makhlouf describes a number of BID research papers. For instance, in 2017, 69% of those questioned had legal representation at the time of interview but 70% were not taken on as a legal aid client. 49% were said not to be able to access the 30 minutes of free legal advice that they were entitled to in the detention centre, while 63% reported being blocked when accessing websites. One in ten had never had a legal representative throughout their period of detention.

86. Mr Makhlouf considers that Chapter 60 “is having an impact on the grant of bail and may be prolonging detention”. Many detainees will, he says, be removed “without ever being legally represented for the purposes of challenging their removal, or at all, despite their best efforts to obtain a representative”.

Theresa Schleicher

87. Theresa Schleicher, a case work manager at Medical Justice, describes the background to the removal window policy. Although “appearing on its face to be an improvement on the previous policy”, which had no end point, “we were again concerned about the effects” and “have since continued to monitor the effects of the policy through our case work”.

88. Medical Justice continues to be concerned that Chapter 60 significantly limits access to justice in that “even though detainees receive notice of the start of their removal window, reminding them to submit any challenge to the decision to remove them from the UK in the time before the beginning of the removal window, in practice this was often not possible, particularly in the large number of cases when only 72 hours is given”. Prioritising clients within removal windows is, she says, difficult: “We are simply not able to prioritise the most urgent cases and in most cases are unable to secure legal representation before the start of a removal window. Many clients are not then removed during the early part of their removal window or at all. But some are removed before they are able to access legal advice”.

89. Ms Schleicher says that issues such as fitness to fly and mental illness fluctuate, so that an up-to-date assessment is important. Medical Justice’s task is complicated by the lack of clarity about when a removal window ends. There are inadequacies, she says, in the procedures for operating Rules 34 (Medical examination upon admission and thereafter) and 35 (Special illnesses and conditions (including torture claims)) of the Detention Centre Rules 2001.

90. Towards the end of her statement, Ms Schleicher notes the evidence, which we shall next describe, of Professor Katona and Dr Bell, regarding the uncertainty that is created by being in the removal window. She says: “We often observe an increase in anxious and distressed calls from our clients while they are on a removal window. Many of those with existing mental illness report an increase in their psychological symptoms”.

Professor Katona and Dr Bell

91. Professor Katona and Dr Bell have provided a joint statement. They gave evidence in the Medical Justice case. Professor Katona is Professor of Psychiatry at University College London, whilst Dr Bell is a Consultant Psychiatrist at the Tavistock Clinic.

92. Their clinical experience indicates that it is “necessary for an individual served with a removal notice to have time to assimilate the decision and to undertake any associated grieving process, supported by their family and treating clinical team, in order to reduce the risk of harm”. It is of particular concern that asylum seekers are said to have “increased levels of psychopathology and mental illness and are about ten times more likely to have post-traumatic stress disorder in age matched general populations”.

93. The statement has this to say:-

“14. Those who have been served with removal windows live with the day-to-day fear that they will suddenly be removed, never knowing when the moment will arrive because of the policy of withholding the date and time of removal from them. Those in the community, live with a similar fear that they will be detained to facilitate removal, compounding this day-to-day fear. An individual’s ability to prepare mentally for removal will in our view be hampered significantly if they do not have a definite removal date to prepare for and work towards.”

94. The situation for those in detention is said by the authors to be “more difficult still, due to the adverse conditions created by detention itself”. This “daily mental duress carries a risk of provoking overwhelming distress and psychological damage heightened by the state of vigilance, which is greater the longer it continues”.

95. The authors do not consider that the safeguards contained in the current Chapter 60 policy are sufficient. They echo the views of others regarding the problems with the Rule 34/35 procedures. They complain about the levels of discretion left to the respondent’s staff, in operating various of the safeguards. They end by saying that those subject to the removal window “face the uncertainty of not knowing whether tomorrow will be the day they are to be removed. This means that every day, because any day might be the day of removal, the individual is faced with a very high degree of stress which would be intolerable and harmful for most individuals let alone those who are already suffering from mental disturbance”.

Sian Evans

96. Sian Evans, co-ordinator of asylum services for Women Against Rape (WAR), describes the work of WAR. In her experience “Women invariably did not understand that the opening of a window for removal meant that they were in immediate danger from that date. They saw it more as a window in which they should try to get help before they were removed. This is as a result of the confusing form of the notice, as well as not having the implications of the window explained to them in a manner and/or language that they understand, often exacerbated by problems with concentration, anxiety and fear which may make it more difficult for them to take in information in stressful situations”.

Elisabeth Walsh

97. Elisabeth Walsh, a case worker of the Unity Centre in Glasgow, described a Nigerian woman, well-known to the centre as having suffered “increased panic attacks and episodes of anxiety or severe depression, including suicidal thoughts” as a result of being given a notice of removal window. Other clients have been confused about whether they might be detained upon reporting and, if so, whether they would be put on a plane the same or the next day. Ms Walsh also gives descriptions of persons whom, she says, were removed whilst they had outstanding claims for asylum.

Sheona York

98. Sheona York, Immigration and Asylum Solicitor and Reader in Law at Kent Law Clinic, says that, in her experience, it is extremely difficult for a person who is threatened with removal, and who does not already have a competent immigration solicitor acting for them, to gain access to adequate legal advice and collect the evidence they need to prepare a judicial review, which would not fall foul of criticisms made in the “Hamid” cases. She also describes the difficulties that have arisen, as a result of the contraction of legal aid provision.

Mariah Carey

99. Mariah Carey, Co-ordinator of the Verne Visitors Group, describes, in similar terms to those of other witnesses, difficulties encountered by those in detention at the Verne in obtaining legal advice. One individual, who was the subject of two failed attempts to remove him, “has never found a lawyer to take his case, probably because they are unwilling and/or unable take on such a complex case knowing that they may be unable to obtain funding …”. Another person, who was told that there was no legal aid available for EEA nationals, eventually was able, through the intervention of a visitor, to obtain exceptional case funding to enable a legal aid solicitor to act.

100. It should be noted that the Verne has subsequently closed as a detention centre.

Jamie Bell

101. Jamie Bell, a solicitor with Duncan Lewis, produced in September 2017 a witness statement concerning his client, SB, the claimant in the case of SB (Afghanistan) , to which we shall turn in due course.

Lisa Incledon

102. Lisa Incledon, of Medical Justice, states that in the experience of her organisation, “many detainees with removal windows have not been able to obtain urgent appointments prior to the beginning of the removal window, suggesting that even if a detainee is able to approach a welfare officer to request a next day legal advice appointment the reality is that one is unlikely to be available for days”.

Nicola Burgess

103. Nicola Burgess, Legal Director of the Joint Council for the Welfare of Immigrants, describes JCWI’s activities. She also sets out a number of examples of cases with which she has been concerned. MA, a citizen of Nigeria, was “evidently emotionally distressed from the time the notice [of removal window] was served. MA was only able to obtain legal assistance after ten days of the window period had elapsed”, and “was therefore at real risk that he could have been removed without accessing legal help”.

104. Another case involved a person who could not be removed in November 2017, since he was assessed as unfit to fly due to uncontrolled blood pressure. Although the medical team at the detention centre advised that he needed a 24 hour assessment of blood pressure before he could be assessed as fit to fly, he was served in January 2018 with a further notice of removal window, which said that his removal would not take place for at least five working days. It is said that no end point for the removal window was provided. He later was given a third removal window and eventually an injunction to prevent his removal was granted by the High Court.

105. A third example, regarding FN, led Ms Burgess to say this:-

“34. Upon receipt of the fresh claim, the respondent did not confirm that the removal window would be closed. However, it was apparent that he was considering the submissions as further information was sought and so no steps to apply for judicial review were taken. For clarity and to avoid the need for recourse to the Tribunal, practitioners would be assisted if the respondent did provide express confirmation in such circumstances. In my view it is also inappropriate for a removal window to be appended to a section 120 notice. It should be a standalone decision, served after an applicant has had an opportunity to respond to a section 120 notice and only once any representations had been fully and finally considered.”

Pierre Makhlouf (2)

106. The second statement of Pierre Makhlouf was filed in order to respond to provisions in the respondent’s detailed grounds of defence. These stated that case workers will consider requests by unrepresented applicants for deferral of removal in order to enable them to obtain representation; that if an unrepresented person was successful in securing a legal surgery appointment, they will not be removed until the appointment had taken place; that requests for extra time by solicitors would be considered and removal deferred where there was a genuine need; and that the Home Office would provide documentation in urgent cases where it could not easily or promptly be obtained from other sources.

107. Mr Makhlouf was “not aware of any published policy that substantiates these claims, nor any existing mechanism for detainees or a legal representative to ensure that the approach described … takes place”. It is noted that this statement was issued prior to the publication of the current version of Chapter 60.

Sian Evans (2)

108. Sian Evans of WAR filed a second statement. This describes the case of Ms M who “as a result of inaction [of] her lawyer … was detained in Yarl’s Wood. Duncan Lewis Solicitors stepped in at the last minute to challenge her imminent removal but her previous lawyer withheld her papers … She was unfairly accused by the judge of deliberate delaying tactics to try to bounce him into stopping her flight. Bouyed by letters of support from over 100 people including Mariam Margolyes, Ms M refused to go with the guards to the airport. She was subsequently released and made a fresh claim last August”.

109. Eventually, Ms M was removed from the United Kingdom. It turned out that she “had been asked by her solicitor to provide evidence from her children that she found too embarrassing and difficult to obtain. Sadly the only barrister her solicitor had managed to reach … was of the view that nothing more could be done because of the missing evidence. There was no time to obtain a second opinion from alternative Counsel”.

110. The statement goes on to say that “Poor or no legal representation plays a part in nearly every failure of rape victims’ claims” and that it “is plainly inadequate to rely on the work of competent and committed lawyers to say that justice can still be obtained in the short timescales allowed by the policy. Such lawyers are few and far between (in part because of legal aid cuts). In addition, the efforts of law firms such as Duncan Lewis to act swiftly has recently been criticised in the courts which complained about action being taken where there had not been sufficient time to prepare”. This is, presumably, a reference to the Court of Appeal judgment in SB (Afghanistan) .

Toufique Hossain (2)

111. Toufique Hossain’s second statement deals with the questionnaire, to which reference has been made. Practitioners were asked various questions on matters germane to the removal window policy. Those who responded indicated that there was “considerable confusion” caused by the notice of removal window; that it was not their understanding or experience that clients who requested a legal surgery appointment would not be removed until this had taken place; that, on average, responses indicated that more than 72 hours’ notice was required to “do all the necessary work to properly apply for an urgent injunction; that there were problems obtaining the central paperwork; and that there was often a cautious approach taken on cases where the removal window was already open and/or that the client had limited paperwork”. The majority of respondents indicated that it was not their understanding that unrepresented individuals could make requests for further time, although some answered yes, indicating in their comments that such requests would not in any event be heeded. All respondents said that, for clients within the removal window who were given a decision by the respondent refusing to treat further submissions under paragraph 353 as a fresh claim, there was “generally insufficient” time between service of the decision and actual removal to do anything of value.

112. Mr Hossain’s statement describes further recent examples of individual cases. Overall, Mr Hossain considers that these cases “illustrate a worrying tendency to maintain a removal window in place pending consideration of an outstanding barrier”. In one case, EM, the respondent’s decision was served on the same morning as the planned removal. The decision was negative and EM was removed. Conversely, in the case of LM, a decision was made in the evening before the date of planned removal. The decision was positive and removal was deferred. In both cases, Mr Hossain says the individuals were not afforded any additional time to access the courts and that nothing short of an injunction would convince the respondent to defer removal in such circumstances.

Thakur Rakesh Singh

113. Thakur Rakesh Singh of the PLP describes the background to the 72 hours’ policy and the Medical Justice litigation. He also describes the PLP’s concerns regarding the original, open-ended removal window and certain training slides produced by the respondent for the use of caseworkers.

114. Mr Singh’s statement predates the publication of the current version of Chapter 60. It ends with a description (together with exhibits) of four case studies. AT, a failed asylum seeker, had married a Gambian national with ILR in the United Kingdom who was pregnant with his child when he was detained with a view to removal. He was unable to secure legal advice prior to the opening of the removal window. He was unable to secure legal advice prior to his removal to the Gambia.

115. MLF was detained for same day removal but was not allowed to have a telephone in order to contact a lawyer. Although he tried to make a protection claim, he was told this had to be done by attending the Asylum Screening Unit.

116. A suffered from severe mental health problems and was given a limited notice of removal. He was detained but did not understand he was about to be removed. He was subject to same day removal despite the fact that his condition precluded this.

117. Headley was unable to obtain access to legal advice whilst in detention with a view to removal. His wife, however, contacted the PLP, who secured an injunction on his behalf.

New evidence

118. At the hearing on 25 July 2018, the applicants and the PLP sought to rely upon four items of new evidence: a new report by Stephen Shaw CBE of July 2018 entitled “Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons”; The Joint Committee [of the House of Commons and House of Lords] on Human Rights (JCHR) 10 ^th report of Session 2017-19, “Enforcing Human Rights” (19 July 2018); an undated report from Refugee Action entitled “Tipping the Scales – Access to Justice in the Asylum System”; and a report of July 2018 by BID entitled “Adults at Risk: The ongoing struggle for vulnerable adults in detention – and the evaluation of the “Adults at Risk” Policy and Practice”.

119. The Tribunal gave directions, at the conclusion of the hearing, for the filing of written submissions in respect of this new material. The respondent’s submissions are dated 9 August 2018; those of the PLP are dated 21 August 2018; and those of the applicants are dated 31 August 2018. On 17 September 2018, the respondent submitted the government’s response to the JCHR report. The applicants and the PLP have made further written submissions on the Government’s response.

120. The Shaw report recommends increasing internet access for detainees to enable them to pursue and support their immigration claims as well as to prepare for their return home. Shaw considers that, overall, conditions in the immigration detention estate have improved since his earlier review. Safeguarding teams do not have specific enforced removal targets and value involuntary removals as much as enforced removals.

121. The JCHR report makes clear that there is concern about the scope of legal aid, which is the subject of a review currently being undertaken by government into the operation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The JCHR report identifies what it considers to be a new need for a broader review into access to justice, immigration advice and assistance “going beyond matters which might be seen as purely legal”. The JCHR report examined the Immigration Rules in the context of Article 8 ECHR claims. It noted that non-asylum and immigration cases were taken out of the scope of legal aid, subject to narrow exceptions for some applications by victims of domestic violence, trafficking and modern slavery. Applications for leave to enter or remain based on Article 8 claims were amongst those taken out of scope. The report noted “striking examples of how migrant children are affected”. It recommended that the government consider whether immigration cases engaging Article 8 should be brought back within the scope of civil legal aid.

122. The government’s response was that on 12 July 2018, the Minister responsible for legal aid announced an intention to lay an amendment to the LASPO to bring immigration matters concerning unaccompanied and separated children within the scope of legal aid. Otherwise, under current legislation, legal aid is said to be available in all asylum cases for all age groups and for immigration cases “where someone is challenging a detention decision. Legal aid for other immigration matters is available via the ECF Scheme, which is intended to ensure legal aid is accessible in all cases where there is a breach of human rights”.

123. The Refugee Action report found that organisations working with vulnerable people were facing “huge barriers to finding them government-funded legal assistance” and the “gaps in the legal aid provision exist across the country, undermining access to justice for those claiming asylum”. No reference was made to Chapter 60.

124. The applicants point to passages in the report recording that over half of legal aid providers in the areas of asylum and immigration were lost between 2005 and 2018 and that 21 dispersal areas for asylum seekers were described as “advice deserts”.

125. The BID report, according to the respondent “makes clear that it is opposed to all immigration detention”. Criticisms are made regarding those being held in prisons, rather than IRCs (which is not the case with either of the present applicants).

126. Overall, the stance of the applicants towards the new material, upon which they seek to rely, is that this “should be viewed in the round” and is “probative of the genuine difficulties faced by those in need of legally aided advice and representation including those in immigration detention”. The PLP’s stance is, essentially, to the same effect.

F. Paragraph 353, SB (Afghanistan) and the “Hamid” jurisdiction

127. We have already encountered various references to paragraph 353 of the Immigration Rules. This provides as follows:-

“Fresh Claims

353. When a human rights or [protection] claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.”

128. As established in the somewhat extensive case law (of which WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 remains the most useful guide), it is for the respondent to determine whether the requirements of a fresh claim had been made out, applying anxious scrutiny to the material, and asking himself the question whether a hypothetical First-tier Tribunal could realistically allow an appeal brought by reference to it.

129. Paragraph 353A explains the consequences of making further submissions:-

“353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.”

130. The significance of paragraph 353A, for our purposes, lies in the fact that the respondent’s policy is such that he will not remove a person who has made submissions said to come within the ambit of paragraph 353, until those submissions have been considered. There is no “cut off” point in the Rules, beyond which the obligation in paragraph 353A ceases to apply.

131. We can now turn, as we said we would, to the case of SB (Afghanistan) . The judgment of the Court of Appeal, given by Lord Burnett of Maldon CJ, sets out the facts of SB’s case, in considerable detail.

132. In essence, SB was detained and served with a notice of removal on 4 July 2017, which told him that he would not be removed before 17.00 on 10/07/17 but that after this time and for up to three months he may be removed without further notice. Representations by a firm of solicitors, acting for SB, were made on his behalf on 19 July 2017 but the respondent on 25 July decided that these did not constitute a fresh claim within paragraph 353. Removal directions were set for 26 August but the pilot of the aircraft due to fly to Istanbul refused to carry SB and removal was aborted.

133. There was then press coverage of SB’s abortive removal, which was said to have given rise to a sur place asylum claim by him. On 7 September, the Kent Refugee Asylum Network (KRAN) contacted Duncan Lewis Solicitors and asked if they would act for SB.

134. In the morning of 12 September 2017, SB was notified that he was to be removed by plane to Istanbul at 11.30am that day, for onward transit to Kabul. Representations made on SB’s behalf by the journalist who had been responsible for the press coverage were considered but rejected by the respondent in the morning of 12 September, with the decision letter being sent to Duncan Lewis. Again, the respondent took the view that the submissions did not give rise to a fresh claim.

135. Just after mid-day on 12 September, the flight to Istanbul closed its doors, with SB on board.

136. Jamie Bell of Duncan Lewis and Mr Knight of Counsel, instructed by Duncan Lewis, prepared a judicial review challenge in respect of SB’s removal. This was based on the assertion that section 77 of the 2002 Act prohibited SB’s removal whilst an asylum claim was under consideration; paragraph 353A had similar effect; and that Chapter 60 stated that SB’s removal window had, in fact, ended because he had made an asylum claim that had been certified by the respondent.

137. As the Court of Appeal observed at paragraph 25 of its judgment, the assertion regarding certification and the effect on the removal window was untrue. SB’s Article 8 claim had not been certified by the respondent. Rather, it had been rejected by the First-tier Tribunal on appeal. The grounds of claim suggested that the FtT had only considered SB’s case by reference to Articles 2 and 3 of the ECHR and the Refugee Convention.

138. As a result, Morris J, who granted an interim injunction “out-of-hours” by reference to these grounds, did so as a result of a mistaken representation on the part of those acting for SB.

139. Paragraphs 54 to 58 of the judgment needs to be set out in full:-

“54. The making of last minute representations to the Secretary of State, which are claimed to amount to a "fresh claim" for asylum or leave to remain for the purposes of para. 353 of the Immigration Rules, and the making in parallel of an application for urgent interim relief to prevent the removal of an immigrant pending consideration of those representations, can be highly disruptive of attempts by the Secretary of State to remove individuals who in truth have no right to be here. Where a removal which is planned and in progress is stopped at the last moment, there may be a significant delay before the Secretary of State can set up suitable new arrangements for removal. Also, it is likely that the substantial cost of the aborted removal will be wasted.

55. The courts have had experience of some applications for interim relief being made by legal advisers where there is no real merit in them, but as an abuse of process to disrupt the removal operations and to buy more time in the UK for their clients. The courts have therefore already had occasion to give guidance emphasising the professional obligations of legal advisers to make applications for interim relief to prevent removal promptly and with a maximum of notice which is feasibly possible to be given to the Secretary of State: see, in particular, R (Madan) v Secretary of State for the Home Department and the Hamid case, both referred to in the Administrative Court Guide.

56. It is unnecessary to set out again in this judgment the guidance which has already been given so clearly in those cases. We take this opportunity, however, to reiterate the importance of that guidance. The basic principles are clear: (i) steps to challenge removal should be taken as early as possible, and should be taken promptly after receipt of notice of a removal window of the kind which SB received on 4 July 2017 in this case; and (ii) applications to the court for interim relief should be made with as much notice to the Secretary of State as is practicably feasible.

57. In the present case, the Secretary of State makes no suggestion that Duncan Lewis, Mr Bell and Mr Knight acted deliberately to manipulate the court process to try to secure the non-removal of their client, SB, at the last minute and then to secure his return to the UK. It appears to us that, having been instructed by SB very late in the day, they acted honestly and in good faith under pressure of time to try to secure the non-removal of their client, in circumstances where it appeared to them there were good grounds to seek to make "fresh claim" submissions pursuant to para. 353 of the Immigration Rules, by reason of the new documents and the sur place press coverage. Nonetheless, things were not done properly and we find it necessary to make some criticisms to which we will return. But this case illustrates the particular difficulties which can arise when a new set of legal advisers come on the scene at the last minute. The duty of candour is directed in the most part to ensuring that matters unfavourable to the applicant are drawn to the attention of the judge. There are many late applications for injunctive relief which are based on little more than an assertion that something may turn up if the new advisers are given time to investigate. Such applications should get nowhere. Yet there is a strong imperative for those instructed late in the day to make no representations or factual assertions which do not have a proper foundation in the materials available to them. Gaps in knowledge should not be filled by wishful thinking. In almost all such cases there will have been extensive engagement between the putative applicant and the immigration authorities and often the independent appellate authorities. So too in many cases there will have been dialogue between the authorities and previous lawyers. There will be a large reservoir of information available. Without access to that information it behoves those who come on to the scene at the last minute to take especial care in the factual assertions they make.

58. SB's position remains opaque. It is true that he has been subject to the restrictions inherent in being detained to await removal. However, at no time has he provided any witness statement to explain when the new documents were provided to KRAN and to him, how they came to be produced, when he was aware of the press coverage about his case, why an application for interim relief was not made immediately the new documents and information about the press coverage were available, and why he did not provide the full set of immigration decisions about his case and copies of his judicial review application JR/7131/17 to Duncan Lewis when he instructed them in September 2017. This is so despite the Secretary of State calling for an explanation from him. SB has offered no explanation for the delay in making an application for interim relief to prevent action pursuant to the removal notice of 4 July 2017, after he had the new documents and the press coverage had occurred. He has offered no explanation for failing to brief Duncan Lewis properly and failing to provide them with all the relevant documents in his case. Nor is there any description of his dealings with his previous solicitors. The suspicion, at least, is that there is no good explanation and that he deliberately sought to instruct Duncan Lewis late in the day and with minimal information in the hope that he would maximise his chances of securing relief to prevent his removal.”

140. The Court of Appeal had this to say about paragraph 353A (section 77 of the 2002 Act):-

“70. The two other grounds for relief relied upon are, first, that section 77 of the 2002 Act and para. 353A of the Immigration Rules prohibited removal by reason of the representations sent by Duncan Lewis to the Secretary of State by email at 11.19 am on 12 September and, secondly, the removal window had come to an end by virtue of para. 2.1 of Chapter 60 of the EIG.

71. As to the first of these grounds, section 77 and para. 353A impose obligations on the Secretary of State not to remove an individual in certain circumstances. They are both to be read in the public law context as obligations related to fair and proper administration of the regime of immigration controls, which depend upon the Secretary of State being given notice of an asylum claim at a time and in a manner which affords her officials a reasonable opportunity to take on board that a claim for asylum has been made and to appreciate therefore that it is "pending" (section 77); or that further submissions amounting to a human rights or protection claim have been made that require consideration (para. 353A), so as to have a viable opportunity to take steps to comply with the obligations so imposed. The obligations imposed by these provisions are not in the nature of strict obligations which apply regardless of whether the Secretary of State has had a sufficient opportunity to examine a document received from a person facing removal. It is only following proper consideration that the relevant official can reasonably be expected to appreciate that it constitutes what can fairly be described as a claim for asylum; or can fairly be described as "further submissions" to assert a human rights or protection claim. The nature of the task necessarily involves the need to compare the new submissions with what has gone before. There needs to be time having done so, for the Secretary of State of her own motion to stop a removal which was in the process of being carried out in the event that the representations are accepted as satisfying criteria necessary to halt removal.

72. It is not uncommon for voluminous late representations to be emailed to the Secretary of State very shortly before removal is scheduled to occur. It should not be thought that they will operate as an automatic bar on removal.

73. For present purposes, it is not necessary to examine in further detail what might be the limits to the obligations in section 77 and para. 353A, because in our view it is clear that the sending by Duncan Lewis of the written representations timed at 11.19 am on 12 September 2017 did not afford the Secretary of State a viable opportunity to digest what was in that communication and then to put in motion the necessary steps to abort SB's removal then in progress, on a flight scheduled to depart at 11.30 and in fact departing at 12.04.”

141. The Court of Appeal set aside the injunctive relief granted to SB by the High Court.

142. SB (Afghanistan) refers to the Administrative Court Judicial Review Guide 2017 in connection with the “Hamid” jurisdiction. The relevant passages of the Guide are as follows:

“16.5 Abuse of the Procedures for Urgent Consideration

16.5.1 Where an application for urgent consideration or an out of hours application is made which does not comply with this Guide and/or it is manifestly inappropriate, the Court may make a wasted costs order or some other adverse costs order (see paragraphs 23.1 and 23.13 of this Guide respectively).

16.5.2 In R. (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin) (see paragraph 16.1.4 above) the Court held that where urgent applications are made improperly the Court may summon the legal representative to Court to explain his or her actions and would consider referring that person, or their supervising partner (if different) to the relevant regulator. Examples (but not an exhaustive list) of applications which have been held to be inappropriate under the Hamid rule are:

16.5.2.1 The claimant’s solicitor had delayed making the urgent application until the last minute and had not disclosed the full facts of the case in an attempt to use the urgent process to prevent his client’s removal from the UK.

16.5.2.2 The claimant’s solicitor requested urgent interim relief against a decision that had been made three years earlier.

16.5.2.3 A practitioner advanced arguments that his client was suicidal and psychotic when they knew or ought to have known were false and/or inconsistent with their own medical evidence.

16.5.2.4 A practitioner lodged an application with grounds that were opaque and brief and failed to set out any of the claimant’s history of criminality.

16.5.3 Practitioners should be aware that the Court can identify those who are responsible for abusing the Court’s processes by making adverse costs orders (see paragraph 23.1 of this Guide) or by activating the Hamid procedure outlined above which may lead to those practitioners being disciplined by their Regulator. If the Hamid procedure is activated any orders made in relation to the referral may be published and placed in the public domain and any such publication will include the explanation provided by the legal representative. Also see paragraph 12.10 of this Guide on abuse of the Court’s process. “

143. In R (Sathivel) v Secretary of State for the Home Department [2018] EWHC 913 (Admin) a Divisional Court (Sharp LJ, Green J) gave judgment in related cases arising from the “Hamid” jurisdiction. The following paragraphs are of particular relevance for our purposes:-

“6. In 2018 the present Lord Chief Justice has expressed concern at the lack of the exercise of the duty of candour on the part of practitioners in the context of last moment applications for injunctions to restrain removals. He also reiterated the importance of the Hamid jurisdiction. See paragraph [20] below.

7. There are of course many highly professional practitioners in this complex and difficult field who successfully reconcile the need to act in their client’s interests with their duties to the Court. However, there is also a substantial cohort of lawyers who consider that litigation is a tactic or strategy that can be used to delay and deter removal proceedings.

8. We describe below some of the situations that too frequently confront the courts and tribunals.

9. First, most of the practitioners in this area do not have legal aid franchises. The clients are privately funded, and they are frequently vulnerable and desperate. We sought information as to the level of fees demanded by the solicitors in the cases before us. The sums vary; but they invariably run into multiples of thousands of pounds. To raise funds to pay for legal assistance clients must often seek support from family and friends. The solicitors will not generally act unless they are placed in funds beforehand. Some lawyers promise the highest quality of representation and we have no doubt that there are solicitors and other representatives who do provide excellent services. But there are other solicitors who having promised high quality specialist services then instruct paralegals and unqualified persons to draft what would ordinarily be viewed as complex and specialised pleadings and court documents (often prepared by counsel). The cases that are then advanced may be wholly lacking in merit. Judges are presented with lengthy pleadings much of which is irrelevant and has been cut and paste from template documents, often available on the internet.

10. Second, the incentive of some practitioners in initiating court or tribunal proceedings is simply to delay the immigration process. They do this by exhausting every judicial or tribunal opportunity, irrespective of the merits of the case. Buying time is valuable. Even a hopeless application or appeal takes time to determine and whilst that is ongoing there is the possibility of lodging repeat “ fresh material ” applications to the Home Office with a view to generating new Home Office decisions (rejecting the contention that there is fresh material relevant to the applicants case) which then generates even more (unmeritorious) appeals which take up even more time to resolve and allowing (yet again) yet more fresh material applications, and so on. It is commonplace for such cases to continue for many years, and in extreme cases decades. And the longer the case goes on the more scope there is for an applicant to begin to develop an Article 8 “ private life ” claim, for example by getting married (sometimes through a sham process) or having (or claiming to have) children. Where an applicant is detained pending removal the longer that detention persists (which may be a consequence of the applications and appeals being pursued on the individual’s behalf) the greater the scope for the detained person to then argue on well-known “ Hardial Singh ” grounds that it is no longer lawful to maintain detention. If a bail application succeeds the applicant might abscond. Sometimes the applicant re-appears years later, and the process then starts again.

11. Third, when the Home Office sets a date and arrangements for removal a different dynamic sets in. Last minute applications to restrain removal are made to the High Court, and often to the “out of hours” duty Judge literally hours or even minutes before the removal flight departs the runway. Frequently the day before, or even the day of, removal lawyers serve a new “ fresh material ” claim upon the Home Office and then argue before the duty Judge that removal is unlawful pending determination by the Home Office of that new application and/or an appeal therefrom. It is of the nature of these cases that the applicant may have been engaged in a Home Office and/or appeal process for some years. There is often a lengthy history. However, what happens is that at the last moment the applicant changes solicitors. The new solicitors draft the last-minute application seeking the restraining of removal and they explain to the Judge that they have been instructed late on and that they have had no time to obtain instructions (the client will be in detention). Frequently, the new lawyers do not have access to the prior documentation and they have not (because of lack of time they argue) sought or obtained the documentation from previous solicitors or the Operational Support and Certification Unit (“OSCU”) of the Home Office. For this reason, arguments advanced to the Judge are based on details provided by the client who being in detention can give only the barest of instructions over the phone. Judges complain that all too often the version of events provided to them is materially inaccurate and/or incomplete. It is almost unheard of for the Defendant to be notified of the application or to have a chance to advance submissions, even in writing.

12. All of the above scenarios are reflected in various ways in the facts of the cases before us. In the midst of all of this it is crucial that the courts and tribunals retain the integrity of their processes. It is unacceptable that they should be used as part of a continuing game played between applicants and the Home Office. If the processes of the Court and tribunals are abused in this manner then those individuals who do, genuinely, have proper cases to advance (and there are many) find that they sit in a long queue waiting to be heard. The judges who should be devoting their time to resolving genuine and important disputes are distracted dealing with abusive cases. Justice is delayed and can be denied.”

G. Discussion

(a) The primary position of the applicants and the PLP

144. Anufrijeva concerned the issue of whether income support should have been paid to the appellant between particular dates. That depended upon whether, before the first of those dates, she had ceased to be an asylum seeker. That in turn involved the question whether on or before the earlier date her claim for asylum had been “recorded by the Secretary of State as having been determined (other than on appeal)” within the meaning of particular regulations. Lord Steyn, with whom the majority of the House agreed, explained that the issue crystallised into how the relevant regulations should be interpreted and whether “Parliament intended to authorise the withdrawing of income support by an internal note on a departmental file with legal effect from a date before notification of the decision” (paragraph 21).

145. At paragraph 25, Lord Steyn endorsed the observation of the Court of Appeal, concerning the interpretation of the relevant regulation:-

“Once an asylum seeker knows that her application has been refused, and that she is not to be given leave to enter the country on any other basis, and has the reasons for those decisions, she can reasonably be expected to make a choice: either to accept the decision and leave or to stay and fight but without recourse to state benefits. But she cannot reasonably be expected to make that choice before she knows of the decisions and the reasons for them. There is nothing in the material before us to suggest that it is consistent with the declared purpose of the regulation to expect her to do so.”

146. This led Lord Steyn to hold as follows:-

“26. The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system …”

147. The applicants and the PLP contend that Anufrijeva means that the applicants have a legal right to be notified of the removal directions that must be made pursuant to section 10 and Schedule 2, in order for actual removal to be effected, and that notification of the removal window cannot constitute such notice.

148. One response that might be made to this submission is that the decision to refuse asylum was one that affected the legal status of Ms Anufrijeva. If she had succeeded in her asylum claim, she would, as a refugee, have had the rights that flow from the Refugee Convention. In accordance with the respondent’s policy, she would have been given leave to remain in the United Kingdom.

149. The making of a decision under section 10 of the 1999 Act is not of the same character. It can be made only where the individual concerned has no leave to enter or remain. The decision does not, in short, alter an individual’s status, either directly or indirectly.

150. Although Mr Kovats QC did not advance such a response as a means of distinguishing Anufrijeva , it touches on the following broader point. A person who receives an adverse decision from the respondent and who either does nothing about it or appeals it unsuccessfully to the Tribunal, can in general be expected to know that he or she lacks leave to enter or remain and so needs to depart the United Kingdom. If the person has been given a notice under section 120 of the 2002 Act, he or she will also have been informed of the need to let the respondent know, as soon as reasonably practicable, if the person’s circumstances subsequently change, so as to give rise to additional grounds for being permitted to enter or remain and/or for resisting removal.

151. The legislative scheme does not, therefore, confer any expectation that such grounds can be withheld until steps are taken to remove; quite the opposite. This point needs to be kept in mind in considering the operation of the principle of access to justice in the context of Chapter 60.

152. Mr Kovats QC’s response to Anufrijeva was that the circumstances of the present cases and those of Anufrijeva are not remotely analogous. We agree. In order to be analogous, the respondent’s policy in the present cases would have to involve putting the applicants onto an aircraft in order to remove them from the United Kingdom, without any prior notice that the respondent intended to remove them. That is manifestly not the position. The form RED.0001 is, as its heading explains, a notice of removal which can take place at any point during the window. A person who is given a RED.0001 is, accordingly, in nothing like the position of the appellant in Anufrijeva . That case is not authority for the proposition that notice of an administrative decision has to be made in a particular way; or in particular circumstances, regardless of the nature of the decision.

153. In oral submissions, the applicants and the PLP said that, if one compares the present version of section 10 of the 1999 Act with that which existed prior to its replacement by the Immigration Act 2014, one sees that, for our purposes, nothing very much has changed. In both the old and new versions of section 10(1), a power of removal is given by the legislature.

154. In fact, that is not quite right. The old section 10(1) provided that “A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer”, if certain circumstances existed. By contrast, the new section 10(1) provides an entirely free-standing power of removal, under the authority of the Secretary of State or an immigration officer, in respect of a person who requires leave to enter or remain but does not have it. It is not until one reaches subsection (7) of the section, in its new incarnation, that one sees the Secretary of State or an immigration officer being given the power to make removal directions “for the purposes of removing a person … under subsection (1) …”.

155. That said, we are doubtful whether anything of substance turns on these differences and we accordingly agree with the applicants and the PLP that the respondent cannot derive any material support for his removal window policy from the change in the wording of section 10. Indeed, Mr Kovats QC did not seek to argue to the contrary.

156. The real point at issue is whether the respondent can operate a removal window policy, whereby a person is informed of a decision to remove, to take place during a specified timeframe. We have held that Anufrijeva does not prevent this. We must now look at the other cases relied upon by the applicants and the PLP.

157. UNISON concerned the statutory instrument which imposed requirements to pay significant fees in order to bring and conduct claims before Employment Tribunals and the Employment Appeal Tribunal. Having held that the “constitutional right of access to the courts was inherent in the rule of law” (paragraph 66) and that “the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance” (paragraph 71), the Supreme Court noted “many examples … of judicial recognition of the constitutional right of unimpeded access to the courts” (paragraph 76), before holding as follows:-

“87. The Lord Chancellor cannot … lawfully impose whatever fees he chooses … . It follows from the authorities cited that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice. That will be so because section 42 of the 2007 Act contains no words authorising the prevention of access to the relevant tribunals. That is indeed accepted by the Lord Chancellor.

88. But a situation in which some persons are effectively prevented from having access to justice is not the only situation in which the Fees Order might be regarded as ultra vires. As appears from such cases as Leech and Daly, even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation. As it was put by Lord Bingham in Daly, the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve.

89. There is an analogy between the latter principle and the principle of proportionality, as developed in the case law of the European Court of Human Rights. These proceedings are not based on the Human Rights Act 1998, since the appellant is not a “victim” within the meaning of section 7(1) of that Act. Nevertheless, the case law of the Strasbourg court concerning the right of access to justice is relevant to the development of the common law. It will be considered in the context of the case based on EU law, on which it also has a bearing. To anticipate that discussion, however, it is clear that the ability of litigants to pay a fee is not determinative of its proportionality under the Convention. That conclusion supports the view, already arrived at by the common law, that even an interference with access to the courts which is not insurmountable will be unlawful unless it can be justified as reasonably necessary to meet a legitimate objective.”

158. At paragraph 91, the Supreme Court held that on the “evidence now before the court, considered realistically and as a whole” the fees in question had not been set at a level that everyone could afford, in order to access the tribunals, taking into account the availability of full or partial remission. “The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world” (paragraph 93).

159. Looking at the matter in EU terms, a reference to the Charter of Fundamental Rights of the European Union, the Court observed “the emphasis placed by the Strasbourg Court on the protection of rights which are not theoretical and illusory, but practical and effective. This is consistent with the recognition in domestic law that the impact of restrictions must be considered in the real world” (paragraph 109).

160. Before us, there was considerable dispute, in the course of oral submissions, as to whether any interference with access to justice had to be specifically authorised by primary legislation, in order for it to be lawful, or whether there is scope for saying that interferences which are not insurmountable may be lawful, without express wording, if these can be “justified as reasonably necessary to meet a legitimate objective”, in the words of paragraph 89 of Lord Reed’s judgment in UNISON . In this regard, Ms Kilroy seized upon Mr Kovats QC’s acceptance in the course of his oral submissions that Chapter 60 constitutes a restriction of access to justice, albeit that he said this was proportionate.

161. It is, in our view, impossible to extrapolate from UNISON a universal proposition of what, precisely, access to justice entails, regardless of the particular circumstances. Not only is there no suggestion in the judgments that the Supreme Court embarked upon such a task; it would have been doomed to failure. This is because the question of what access to justice entails depends upon the circumstances in question.

162. It is an integral feature of a power of removal, such as that conferred by section 10 of the 1999 Act (and the deportation powers in the 1971 Act) that, if a person is to be removed under the power, the point must come when his or her ability to access the courts and tribunals of the United Kingdom, in order to prevent the removal, will disappear; and that, by the same token, during the period leading up to removal, that person’s ability to access the courts and tribunals will be progressively diminished. It is quite manifest, in our view, that section 10 authorises such a state of affairs. If it did not, then the power of removal would effectively become meaningless.

163. The correct approach, therefore, is to view the respondent’s policy, as contained in Chapter 60, as an attempt by the respondent to articulate an appropriate relationship between access to justice and what are the inevitable consequences of the power to remove a person from the United Kingdom.

164. Seen in this light, the power of removal is, in some respects, analogous to the powers contained in the rule-making legislation of the courts and tribunals to impose time limits for bringing and progressing legal proceedings. All such time limits are, obviously, a restriction on access to courts and tribunals. The question is whether such time limits (and the associated relief from sanctions) are reasonably necessary, in the particular circumstances of each type of case.

165. For this reason, we reject the submission that UNISON dooms the respondent’s case to failure. We must, therefore, turn to the Medical Justice cases. We have referred to this litigation above.

166. We reject the submission of the applicants and the PLP that the Upper Tribunal is bound by the principle of stare decisis to find that the removal window policy of the respondent is unlawful because it enables removal directions to be given to a person on less than 72 hours’ notice. Medical Justice held that, on the evidence before Silber J, the exceptions to the 72 hours’ notice policy were unlawful. The position now is that the notification process, as set out in RED.0001, provides at least 72 hours’ notice of an intended removal during the removal window period. Neither Silber J nor the Court of Appeal was required to consider the removal window process set out in Chapter 60 and RED.0001, for the simple reason that it did not exist. This Tribunal is not, accordingly, bound in the way which the applicants and the PLP contend.

167. The true effect of form RED.0001 is, we find, properly identified in the first statement of Mr Toufique Hossain of Duncan Lewis. At paragraph 14(i), Mr Hossain describes the difficulties that his firm has encountered in persuading the Administrative Court Office to seal claim forms on the same day where a notice of removal window is provided. According to Mr Hossain, the clerks at Duncan Lewis “have reported that the problem arises because the court staff do not appreciate that the notice of removal window is a form of removal directions and therefore such applications are urgent”. As will be evident, we regard that description as entirely accurate: form RED.0001 is a notice of removal.

168. At paragraph 14(iv) of the same statement, Mr Hossain notes that many legal representatives “are by now aware that as the client can be removed from the date the window opens, that date should effectively be treated as the date of removal”. Again, that is exactly how everyone concerned should view the position.

(b) 72 hours’ notice period preceding the opening of the removal window

169. The applicants and the PLP submit that Silber J in Medical Justice did not make a finding that the 72 hour notice period in respect of removal directions was lawful; merely, that nothing in his judgment should be taken to suggest that it was not. By the same token, they say, there is nothing in the judgment of the Court of Appeal that provides support for the respondent on this issue.

170. We have seen from the evidence of Ms Dolby how the 72 hour notice period came about. Its pedigree is by now a long one, judged by reference to the dynamic nature of immigration law and practice. Whilst we agree with the applicants and the PLP that the Medical Justice cases do not contain any actual approbation of the 72 hours policy, the fact that it was not challenged in that litigation or subsequently is, nevertheless, of some relevance.

171. The applicants and the PLP relied heavily upon the changed legal aid landscape, compared with 2010, in order to advance the argument that 72 hours is not, now, adequate. As we have seen from the evidence, instances are given where difficulties have been encountered in a detainee being able to access legal advice, whether through a surgery in the IDC in which he or she is held, or otherwise. The questionnaire answers exhibited to Toufique Hossain’s second statement provide additional support in this regard. The applicants and the PLP also relied upon the new evidence, including that of the JCHR report.

172. We have considered all the evidence carefully. We find that the respondent has demonstrated that the 72 hour period, as set out in Chapter 60, and which is subject to the exceptions contained therein for provision of additional time in certain circumstances, constitutes a reasonable and proportionate response to the need to give effect to access to justice in cases of removal from the United Kingdom.

173. So far as concerns the position regarding legal aid, we agree with Mr Kovats QC that, to a very significant extent, this matter lies outside the remit of the present proceedings. The reductions that have occurred in the availability of legal aid do not mean that an individual facing a removal is simply not able to engage a lawyer.

174. As we have seen from the “Hamid” cases and also from the applicants’ witnesses, many who face removal are, in fact, able to secure legal advice and assistance privately. The fact that some of those who provide such services might do so in a professionally problematic manner does not mean that is true of the majority. The right of access to justice does not include a right to see a lawyer who is the best or amongst the best the legal profession has to offer. Still less does it include a right to resist removal indefinitely whilst a lawyer is identified who is willing to take on the case, even though it may be an extremely weak one. That, however, seems to be the implication of Mariah Carey’s and Sian Evans’ evidence. Sheona York’s statement regarding the difficulty of finding a lawyer who will not fall foul of the “Hamid” criticisms ignores the fact that, if there is even an arguable case to resist removal, any lawyer should be able to put that case forward. What matters are the underlying merits (or lack of them).

175. There is no correlation, we find, between the criticisms in the witness evidence regarding the alleged adverse effects of a lack of legal aid, and the suggestion of the applicants that a five day, rather than 72 hour, notice period would be acceptable. Some of the evidence suggests that individuals have spent far longer than five days seeking legally-aided assistance.

176. Mr Kovats QC categorised much of the evidence advanced by the applicants and the PLP as anecdotal. The fact that this is so is not necessarily to be taken as a criticism of the witnesses who gave it. Rather, it is a function of the fact that, by the time very many individuals find themselves in receipt of form RED.0001, they will already have had legal representatives acting for them, but will nevertheless have failed in their appeals before the First-tier Tribunal and become “appeal rights exhausted”. Many of the witnesses encounter the individual only at this point.

177. As is strikingly borne out in the judgment of the Court of Appeal in SB (Afghanistan) and in the judgment of the Divisional Court in Sathivel , at this point, individuals who have previously had professional legal assistance frequently switch to a new representative. The latter will often be unaware of the detailed immigration history of the individual in question, including, importantly, the individual’s interactions with courts and tribunals. That, however, is not in itself a good reason for extending the 72 hour period, across the board.

178. Much of the applicants’ evidence suffers from this difficulty. It pays no or insufficient regard to whether the individual has had a legal adviser in the past; if so, when; and whether there has been any undisturbed judicial pronouncement about issues that the individual is seeking to rely upon in order to defeat removal.

179. Nicola Burgess seems to propose that the making of submissions in terms of paragraph 353 of the Immigration Rules should have the effect of closing the removal window. That, however, would render the policy a dead letter. As is evident from what we have said regarding the narrowing of access to lawyers, courts and tribunals as removal draws near, the respondent must be able, in certain circumstances, to remove a person immediately after a decision is made on such submissions or, in certain cases, before very belated submissions are even considered: see SB (Afghanistan) .

180. Thakur Rakesh Singh’s case studies do not demonstrate a need to extend the period of 72 hours. As is plain from the judgment of the Deputy Judge in AT’s case, there was a “straight conflict of fact with regard to the issue of the removal and whether sufficient notice was given. It is not a conflict I am in a position to resolve” (paragraph 95). For the purposes of her judgment, the Deputy Judge found it neither necessary nor appropriate to determine the issue (paragraph 96). In the case of A, William Davis J found that, although he could understand why the respondent has the policy she does, it was at least arguable she had failed to apply it properly in A’s case, given that A’s condition was such that he should not have been given a removal window decision (paragraphs 24 to 26). In the case of Headley, which was settled by consent, there was an unusual factual issue as to whether the claimant had indefinite leave to remain in the United Kingdom.

181. The applicants and the PLP contend that all their evidence needs to do is disclose some reliable instances where the relevant time limits have prevented an individual’s access to a lawyer. Once this is done, there will be a real risk that access to justice is being unlawfully interfered with by Chapter 60. They rely in this regard on Medical Justice and UNISON .

182. We do not accept this submission. If it were correct, then rules prescribing time limits would be at risk if it could be shown that relief from sanction was wrongly withheld in a particular case. Unlike Medical Justice , in the present cases Mr Kovats QC challenged the witness evidence, albeit in the broad sense of categorising it as anecdotal. Having conducted our own analysis, we have concluded that the evidence (including the responses to the questionnaire), taken in the round, does not show that the provisions in Chapter 60 regarding time limits are operating in such a way as to amount to an unlawful restriction on access to justice.

183. We agree with Mr Kovats QC that neither FB’s nor NR’s case demonstrates that they were denied access to justice by reference to operation of Chapter 60. FB had lost an appeal against refusal of international protection, as long ago as February 2011, following which he was removed to Afghanistan. In October 2017, however, he appeared at Wembley Police Station. On 5 October 2017 he was given more than 72 hours’ notice of the start of the removal window. FB had attended a legal surgery at Campsfield House on 3 October. We are not told whether he showed the solicitor at the surgery the notices with which he had been served. We agree with the respondent that the length of time it took FB to put forward a fresh protection claim was, in the circumstances, excessive.

184. NR claimed to have arrived in the United Kingdom in 2007 and had been through the Tribunal appeal process no fewer than three times, before he made further representations to the respondent. By the time he was detained for removal in January 2017 (after which he submitted yet more representations), NR had had the benefit of legal assistance from a number of different sets of representatives. His apparent decision, in 2015, to move from Duncan Lewis to another firm has not been explained. NR subsequently blamed that other firm for shoddy work on his behalf. Such an allegation is, however, easily and often made in this jurisdiction and there is no evidence that the firm in question has been given an opportunity to respond. The same is true of another firm, about which NR also complains. Overall, we find that NR has not been denied access to justice, by reference to the operation of Chapter 60.

185. In the applicants’ evidence, the suggestion is made that SB (Afghanistan) is supportive of their case, in that, since the tight timescales are imposed on representatives by the respondent, those representatives should not be criticised for what happens or fails to happen at the last minute.

186. We can find no merit in this suggestion. As we have said, with any power of removal, there will inevitably come a time when an individual is at the point of removal. Short of having a rule that precludes any submission being made by or on behalf of the individual at that point (which would be problematic, not least because of section 6 of the Human Rights Act 1998), it must in theory be possible to assert, up to the last minute, that removal should not go ahead. But that does not mean the individual is entitled, at that point, to have a lawyer advance any case the individual sees fit to put; nor does it mean a lawyer will avoid judicial or professional censure for advancing a case that is hopeless and/or in breach of the duty of candour.

187. On a related matter, the suggestion by the applicants and the PLP that all these issues can be dealt with by means of professional regulation ignores the fact that the respondent’s policy must deal with those who do not, for whatever reason, use a lawyer at this stage.

188. We reject the challenge brought to the so called “same day removal” policy, otherwise known as Operation Perceptor. We are satisfied from the evidence that this policy is, in fact, a justifiable aspect of the overall removal window regime. The safeguards described in the respondent’s evidence, including giving the individual access to a telephone to contact legal representatives, etc are, in our view, reasonable and proportionate. We note from the applicants’ evidence that there may have been some failures in this regard. Again, however, the evidence does not begin to show a real risk to access to justice.

(c) Is Chapter 60 nevertheless deficient in any respect?

189. The fact that we have found in favour of the respondent in respect of (a) and (b) above does not dispose of the challenges brought by the applicants and the PLP. We therefore turn to what Ms Naik QC and Ms Kilroy had to say about specific aspects of the current version of Chapter 60. In doing so, we have also had regard, once more, to the witness and report evidence.

190. As we have seen, Mr Hossain makes reference to misunderstandings on the part of the Administrative Court Office and other legal representatives, concerning the nature and significance of the opening of a removal window. We do not consider that these matters demonstrate any legal deficiency in Chapter 60. Rather, they are to be seen as demonstrating a likely need for relevant training in this area.

191. By the same token, the incidences given in the evidence of mistakes on the part of the respondent’s caseworkers in the operation of Chapter 60 come nowhere near demonstrating that the system is materially flawed. Few if any systems work perfectly at all times and there is a dearth of evidence to show systematic failures are occurring. Thus, for example, William Davis J, in holding that A should not have been given a notice of removal window, given the state of his mental health, did not question the underlying policy; what concerned him was the failure to apply it properly.

192. Ms Dolby’s evidence explains the public benefits of the removal window policy. The fact that using a removal window, rather than relying upon removal directions, requires there to be certain exceptions does not mean the policy is thereby flawed to the point of unlawfulness.

193. Criticism is made of the section headed “Consideration of deferral of notice period” on the ground that the respondent’s caseworkers are given what is said to be inappropriate discretion in a number of areas.

194. First, in the beginning of the section, the caseworker has to consider each case for deferral on its individual merits by reference to whether the person concerned has had a reasonable opportunity to access legal advice and recourse to the courts.

195. A caseworker is also given the function of deciding whether to “defer removal” on the basis that the individual has changed legal representative. Factors are set out, weighing for and against the exercise of discretion in the individual’s favour in this matter.

196. On the issue of access to legal advice in detained cases, the caseworker is, again, required to exercise discretion, on an individualised basis, by reference to various matters, such as whether the request for legal advice was made at the earliest reasonable opportunity.

197. Finally, regarding documentation it is said to be in general reasonable to provide all relevant documents to representatives although it is reasonably to be expected that, unless there has been a change of representative, documents previously provided to an individual and/or their representative should have been retained. This means that the caseworker may “reasonably request representatives to be specific in their request”. A request to release all case papers, whatever their relevance, is said not to be reasonable and should be challenged.

198. There is, we find, nothing unlawful in the existence of these discretionary functions. The existence and history of paragraph 353 and 353A constitute a good illustration of the way in which, as removal draws near, the respondent’s officers will be taking decisions which there will (quite lawfully) be little or no time to challenge or otherwise question, before removal takes place. As we have said, that is an essential element of the removal power.

199. It is also noteworthy that similar discretionary decisions fall to be made in the part of Chapter 60 entitled “When judicial review proceedings will not suspend removal”. This part has not been challenged by the applicants or the PLP. Here, caseworkers must determine whether a previous judicial review or statutory appeal “has been concluded on the same or similar issues”; whether a previous judicial review or statutory appeal has been concluded “on the same evidence” even though the legal basis of the challenge is “different from that previously brought”; and whether the current judicial review raises issues that “could reasonably have been raised at a previous judicial review or statutory appeal”.

200. Given the point in the process that the decisions described in paragraphs 189 to 192 must be taken, they plainly need to be dealt with by caseworkers who are in a position to know about both (a) the individual’s immigration history, including judicial decisions and previous interactions with lawyers; and (b) the individual’s present circumstances. The nature of the power of removal is such that, at this point, rapid decisions may need to be made. The fact that these decisions touch upon access to justice issues does not mean they should be removed from the relevant caseworkers or set in terms that are likely to be difficult to understand or apply.

201. By the same token, we are not persuaded that there is anything unlawful in the formulation of the third bullet point under the heading “Those not suitable for removal window”, which relates to the Home Office having evidence, beyond a self-declaration, that a person is suffering from a condition listed as a risk factor in the Adults at Risk in Immigration Detention Policy or other condition that will result in the person being regarded as an adult at risk under that policy. The applicants’ witness evidence complains that this effectively puts the onus on the individual. As regards individuals who are not in detention, that is entirely right. Unless and until a caseworker has reasonable cause for concern (which may arise from his or her own observations of the individual), a person who is not in detention will need to provide some evidence in this regard. So far as concerns persons in detention, the position is somewhat different. The respondent owes them a significant duty of care which may, depending on the facts, require a degree of proactivity on the respondent’s part.

202. So far, we have not accepted the challenges made to the detailed provisions of Chapter 60, relating to removal windows. We now turn to matters on which we agree with the applicants and the PLP.

203. Toufique Hossain, in his statements, criticises the terminology used in the section entitled “Consideration of deferral of notice period”. In the first paragraph, reference is made to “deferring the removal window for an additional period”. The second paragraph refers to each “case for deferral”. Under the heading “Change of legal representative” he said that it may be reasonable “to defer removal for an additional period”. Under the heading “Access to legal advice: detained cases”, it is said that “the removal window should normally be deferred”.

204. We find that there is a serious issue with the terminology concerning deferral. This goes beyond mere linguistic quibbles and amounts to arbitrariness. There needs to be precision as to what is being deferred. If, as we suspect is the intention, it is the commencement of the removal window, then that must be made plain. We also agree with the applicants and the PLP (and their witnesses) that if the commencement of the removal window is to be deferred, the individual (and his or her legal adviser, if there is one) must be given a written notice, which must state when the removal window is to open and confirm that length of that window (lest there be any misunderstanding as to whether the deferral “eats into” that period). The period before the window opens is, as we have seen, a crucial one, since it is during it that the individual is expected to seek legal advice, if wanted. The period is also important to the High Court and the Upper Tribunal in deciding whether a case is suitable for daytime or out of hours “immediate” consideration.

205. We also agree with the applicants and the PLP that there is a material problem regarding the relationship between the information regarding the place of removal, as set out in RED.0001, and what might feature in the removal directions issued to a carrier etc during the removal window. Although RED.0001 will specify transit points outside the EU, which are proposed to be used in returning the individual to a particular country, the applicants and the PLP rightly point out that, in a case involving removal to a “safe” part of a country to which the individual may otherwise have justified concerns about returning, it is not appropriate for the individual only to learn precisely where he or she is to be sent within that country, upon receipt of removal directions, of which there will not necessarily be any advance notice.

206. In this regard, the respondent cannot, we find, have it both ways. If, as we have found, the notice of removal window is a sufficient notice of removal to render it unnecessary, as a general matter, to give any further advance notice, then the relevant information about place and route needs to be given in RED.0001. We are not satisfied that, as matters currently stand, the Chapter 60 policy deals lawfully with this issue.

207. The final matter with which we need to deal is the length of the removal window. Paragraph 11 of Ms Kilroy’s written submissions on behalf of the PLP reads as follows:-

“11. … the provisions for extension of the removal window for up to four months, and subsequent referral for further 3 – or 4 – month period, mean that a person subject to the removal window policy may be liable to the same-day, no-notice removal for many months, or even years, with only short periods of immunity from removal for 72 hours/7 days every 3 or 4 months. In other words, the Policy envisages that in a period of four months and subsequently for a further three-or four-month period the individual may be exposed to the risk of limited or same day removal for 119 days out of 122 days, and that it would be possible in a period of a year to be exposed to same day removal for 356 out of 365 days. This could be the case even if the individual last had access to a court years earlier, and their circumstances could have drastically changed.”

208. Professor Katona, Dr Bell and Ms Schleicher all expressed concern that the effects of being subject to a removal window may have on an individual; particularly someone with vulnerabilities. As we have seen, the respondent’s policy makes provision for excluding persons with vulnerabilities from the removal window regime. Despite the criticism advanced, we find that provision to be a lawful response, in that it provides an effective (albeit not perfect) mechanism for taking such cases out of the removal window process.

209. However, paragraph 11 of Ms Kilroy’s written submissions suggests that, as currently framed, Chapter 60 is little different from the entirely open-ended regime from which the respondent retreated in 2015, following receipt of a pre-action protocol letter from the PLP on behalf of Medical Justice.

210. The other point to note is that, the longer the removal window lasts, the greater will be the possibility of the individual’s circumstances undergoing a material change, as regards his or her Article 8 or international protection position.

211. On its face, therefore, paragraph 11 appears to identify a problem. Unfortunately, however, our attention was not drawn to the respondent’s General Instructions (Liability to administrative removal non-EEA: Consideration and notification (Version 3.0), published on 6 April 2017. This describes RED.0004 (Fresh) as a form which is served when a new three month removal window is being set and that it “must only be served where there is a realistic possibility of removal within the new period”.

212. The same document gives the following instruction to caseworkers regarding Form RED.0004 (Extension) which, as its name implies, is used to extend the window by 28 days: “When it is known that removal is unlikely to take place within 28 days you must not serve a RED.0004, instead allow the removal window to lapse. When it then becomes known that removal is likely within a three month period serve a new RED.0004 (Fresh)”.

213. It also appears from the document that RED.0004 (Fresh) “must not be used to keep the window open ad infinitum , but to extend it where removal is expected within that period, for instance, where removal is being re-arranged following a delay in receiving a travel document”.

214. It is regrettable that the parties did not draw the Tribunal’s attention to these general instructions, since their existence ameliorates the position described in paragraph 11 of Ms Kilroy’s submissions; in particular, the statement that the window should not be kept open ad infinitum.

215. In these circumstances, we do not consider that it is appropriate in these proceedings to grant any relief concerning the matters raised in paragraph 11. The Tribunal will, however, expect the respondent to have serious regard to whether a stronger test is necessary than that of a “realistic possibility of removal”, within the new or extended period.

216. We grant permission to bring judicial review proceedings. We do not consider it necessary to quash any of the respondent’s decision-making in the case of FB or NR, whose challenges thereto are academic. The applicants succeeded in resisting removal and have obtained access to justice. We have, however, found that aspects of Chapter 60 are unlawful, for the reasons given in paragraphs 204 to 206 above. We will hear counsel on the issue of relief and the form of any order.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the applicants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their families. This direction applies both to the applicants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Dated: 31 October 2018

The Hon. Mr Justice Lane

President of the Upper Tribunal, Immigration and Asylum Chamber

Postscript

1) After the draft judgment was provided to the parties, on a confidential basis, the applicants suggested that the procedural history of the Chapter 60 policy, as set out in the judgment, should be expanded in a number of respects and that the applicants did not, in fact, accept that it was only the latest form of the policy which required to be substantively examined in the proceedings (see paragraph 6 above).

2) We do not consider that it is appropriate at this point to accede to the applicants’ suggestion. As the Tribunal’s directions of 4 October 2018 made plain, the purposes of circulating the draft judgment were strictly limited. Circulation was not intended as an opportunity for the parties to suggest substantive re-writing.

3) Whether the previous version of the policy was unlawful may, of course, be relevant to the issue of costs, as to which we shall hear submissions.

4) The PLP suggested certain changes to the Tribunal’s description of Chapter 60 (which is, in any event, set out in full in the Annex to the judgment); and the insertion of a comment regarding the quotation in paragraph 122 of the judgment. Again, these suggestions went beyond the purposes of circulating the draft.

5) The PLP also submitted a note regarding the fact that the Tribunal’s attention was not drawn to the instructions described in paragraph 211 of the judgment. The Tribunal entirely accepts that counsel for PLP was unaware of the instructions.