Access to Justice in Immigration Removal: New Precedent in FB v Home Department

Introduction

The case of FB (Afghanistan) & Anor, R (On the Application Of) v. The Secretary of State for the Home Department ([2020] EWCA Civ 1338) marks a significant development in UK immigration law, particularly concerning the rights of irregular migrants facing removal from the United Kingdom. The appellants challenged the Home Department's policy under the Immigration Removal Enforcement (JRI) Policy, contending that the removal window policy unlawfully restricted their right to access justice.

This commentary delves into the background of the case, the court's analysis, the precedents cited, and the broader implications of the judgment on future immigration policies and the legal landscape surrounding access to justice.

Summary of the Judgment

The England and Wales Court of Appeal (Civil Division) evaluated whether the Home Department's JRI Policy, specifically the removal window mechanism, infringed upon the appellants' common law right to access justice. The court concluded that the policy inherently posed an unacceptable risk of denying migrants the opportunity to challenge removal decisions before they take effect. Consequently, the appeal was allowed on Medical Justice Ground 1, leading to the declaration that the JRI Policy was unlawful insofar as it impeded access to justice.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shape the understanding of access to justice within the UK legal framework:

• R (UNISON) v Lord Chancellor [2017] UKSC 51: Affirmed that discriminatory fees in employment tribunals unlawfully restricted access to justice.
• R (Medical Justice) v Secretary of State for the Home Department [2010] EWCA Civ 1710: Established that removal policies must not inherently deny migrants the opportunity to challenge removal decisions.
• R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42: Highlighted the importance of effective remedies and procedural fairness in deportation cases.
• R (Detention Action) v Secretary of State [2015] EWCA Civ 840: Emphasized that systemic unfairness in detention policies can render such systems unlawful.

These cases collectively underline the judiciary's commitment to ensuring that individuals, regardless of their immigration status, retain fundamental rights to challenge governmental decisions that adversely affect them.

Legal Reasoning

The Court's legal reasoning centered on the common law right of access to justice, a cornerstone of the UK's rule of law. The court examined whether the JRI Policy, through its removal window mechanism, compromised this right by:

• Setting short notice periods that hindered adequate time for legal representation and judicial review.
• Allowing removal to proceed without specifying exact dates and times, thereby creating an environment of uncertainty and immediate risk of removal.

The court concluded that while the policy aimed to streamline the removal process and reduce bureaucratic delays, it inadvertently restricted migrants' ability to effectively challenge removal decisions. The inherent design of the removal window meant that adverse decisions were often made too swiftly for meaningful legal redress, thereby violating the appellants' right to access justice.

Impact

This judgment has profound implications for future immigration policies in the UK:

• Policy Revisions: The Home Department must reassess and potentially restructure its removal policies to ensure migrants retain effective avenues for legal challenges.
• Judicial Oversight: Courts may increasingly scrutinize immigration policies to prevent systemic barriers to justice, ensuring alignment with fundamental legal principles.
• Legislative Changes: Subsequent legislation may need to incorporate safeguards that balance the efficiency of removal procedures with the protection of migrants' legal rights.

Furthermore, this judgment reinforces the judiciary's role in upholding human rights within the immigration system, ensuring that operational policies do not undermine access to justice.

Complex Concepts Simplified

Conclusion

The Court of Appeal's decision in FB v. Home Department underscores the UK's legal obligation to ensure that immigration removal policies do not infringe upon individuals' right to access justice. By declaring the JRI Policy unlawful in its current form, the court has mandated a reevaluation of removal procedures to strike a balance between effective immigration control and the protection of fundamental legal rights. This judgment serves as a pivotal reference point for future cases and policy formulations, emphasizing the judiciary's role in safeguarding access to justice against systemic governmental practices.

Ultimately, the case reinforces the principle that the efficiency of governmental processes must not come at the expense of individuals' legal rights, ensuring that the rule of law remains intact within the UK's immigration framework.