Court of Appeal rules Home Office policy, on the removal of migrants, unlawful


On 21st October, the Court of Appeal found the Home office policy on the removal of migrants, unlawful. It said that the “Policy does not allow sufficient opportunity for an individual to challenge an adverse decision”. It is believed that over 40,000 people have been removed under this policy, including those who were affected by the Windrush Scandal.

Under the Judicial Review and Injunctions Policy, those who had their immigration applications rejected were only given 72 hours to one week’s notice, informing them of their impending removal. The individuals were not given any further notice and could be removed anytime in the 3 months, after the end of the notice period.  In other words, individuals who were subject to the removal notice window, only had a short time frame to challenge the decision by the Home Office, by way of a Judicial Review.

The Court of Appeal said in its ruling that: “The new policy (from 2015) envisaged an individual being served with a notice which confirmed liability for removal, and set a short notice period during which there would be no risk of removal, followed by a removal window during which he or she might be removed, without service of removal directions, or indeed, any further notice.”

The grounds of appeal lodged argued that the notice of removal, without any further notice of directions, was unlawful, because under the common law, information such as the date and time of removal should be specified. Whereas, the second ground of appeal referred to the serious risk of removal before the affected individual could access the court to challenge the decision. The Court of Appeal agreed with the second ground, stating that “The right to access the court is an absolute and inviolable right”. It was noted that unsuccessful applicants were forcibly removed, without ever having access to the court of law.

The Home Office released a statement in response to the ruling, saying that, “The immigration and asylum system is fundamentally broken and we are determined to introduce a new system that is fair, firm and will expedite the removal of those who have no legitimate claim for protection.”

The ruling comes at a time when the Home Secretary, Priti Patel, vowed to take a tougher stance on removing migrants from the UK. It also comes at a time when it has been reported that changes to legal definitions, such as Article 3 ECHR, may be made to curb migration. The Home Office often points out that judges make subjective decisions, by defining ‘inhuman and degrading treatment’ with reference to the circumstances of each case. Using specific definitions will allow the Home Office to tell judges how to interpret Article 3 ECHR, in relation to deportation cases.

This article is intended for guidance only and must not be relied upon for specific advice.