The Appeals Court has quashed a stalled policy that allowed the Home Office to deport illegal immigrants at any time during a three-month window without warning.
A “removal window” by itself is not an unlawful concept, the court said. However, other elements of the policy created “an unacceptable risk” that a small number of people would not have time to make legitimate legal representation against the decision to deport them.
Under the policy, which has been on pause for a year and a half, people were given a notice period of between three and seven days that they were going to be deported.
That subsequent deportation could happen at any point in the following three months without warning.
The short period of notice following the initial decision to deport did not allow enough time for people to find lawyers, the plaintiffs had argued.
In a press statement summarising the unanimous Oct. 21 ruling, the appeals judges said, “The court made a declaration that the removals window policy as it stood pre-March 2019 was unlawful insofar as it gave rise to a real risk of preventing access to justice, but only to that extent.”
According to the court, 40,000 “irregular migrants” have been deported through the policy since it was enacted in 2015. “Irregular migration” is also often simply known as “illegal immigration”, according to Oxford University, although there are no clear legal definitions.
The policy was put on hold in March 2019 while a legal challenge was heard.
That initial legal challenge, made by campaign group Medical Justice, failed.
They appealed to the Appeals Court, which on Oct. 21, found in their favour.
It’s not clear if the government will take the case to the Supreme Court. The Home Office has not responded to a request for comment.
“This is a case about access to justice, one of the fundamental values of the British constitution,” Rakesh Singh, a solicitor at the Public Law Project who represented Medical Justice, said in a statement.
“The ‘removal windows’ policy shut people out of the legal process. It meant that when mistakes were made, people could not access the court to put things right, and led the Home Office to remove people with a right to be here—including a number who were caught up in the Windrush situation.”
The court said that many of those deported under the policy could later mount a challenge from abroad. However, for those with a claim of torture risk, the judges said that the policy incorporated an “unacceptable risk of interference with the common law right of access to the court”.
“Whilst the court accepted that that category might be numerically small, there was evidence that some irregular migrants who fell within in it were in fact removed without having had an opportunity to make an application to a court or tribunal,” the court said.
In his ruling, Lord Burnett of Maldon LCJ echoed claims by Home Secretary Priti Patel that some activist lawyers are gumming up the deportation process.
Maldon said the process of removing immigrants was bound to involve people reluctant to leave the country, with no legitimate claim, who “will take whatever steps are permitted by the legal and administrative arrangements in place to resist, delay or frustrate removal”.
“Late claims raised shortly before the known date of removal have been endemic, many fanciful or entirely false,” he said.
“It is a matter of regret that a minority of lawyers have lent their professional weight and support to vexatious representations and abusive late legal challenges.”