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Medical Justice, R (On the Application Of) v Secretary of State for the Home Department
Factual and Procedural Background
This opinion concerns a judicial review application challenging a government deportation policy known as the removal notice window policy ("RNW policy"), introduced by the Defendant ("the SSHD") in 2015. The challenge was brought by an independent charity ("the Claimant") on a public interest basis, represented by a public law organisation. The RNW policy governs notice periods before removal of individuals liable to removal under immigration statutes, with varying notice periods depending on detention status and case type.
The Claimant contends that the notice periods are inadequate, making it effectively impossible for individuals and their advisors to prepare proper challenges before removal. The policy replaced notice of removal directions with notice of liability to removal, opening a removal window during which removal may proceed without further notice. The Claimant alleges that this policy is ultra vires, irrational, and breaches EU and human rights law.
The Equality and Human Rights Commission intervened limited to written and oral submissions. The application was issued in early 2019 and proceeded with permission granted by Walker J, who also granted interim relief restraining removal pending the expiry of the notice period after removal directions are served.
The policy has a history of legal challenges, including a notable 2010 case that quashed exceptions to the 72-hour notice period. A prior challenge to an earlier version of the RNW policy ("FB") was unsuccessful. The present case relies on additional evidence including multiple case studies not before the prior tribunal.
Legal Issues Presented
- Whether the RNW policy is ultra vires the statutory powers of the SSHD, particularly in relation to the constitutional right of access to justice.
- Whether the RNW policy is irrational.
- Whether the RNW policy breaches Article 27 of Regulation 604/2013/EU (Dublin III Regulation) concerning rights to effective remedies in transfer decisions.
- Whether the RNW policy breaches Article 39 of Directive 2005/85/EC (Procedures Directive) on minimum standards for asylum procedures.
- Whether the RNW policy breaches Articles 3 and 8 of the European Convention on Human Rights (ECHR).
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Medical Justice) v SSHD [2010] EWHC 1925 (Admin); [2011] EWCA Civ 269 | Requirement of minimum 72-hour notice period for removal directions to preserve access to justice. | Confirmed that exceptions to the 72-hour rule were unlawful; upheld the minimum 72-hour notice period as presumptively lawful. |
| R (FB and another) v SSHD [2018] UKUT 428 (IAC) | Compatibility of RNW policy with access to justice; scope of notice required before removal. | Upheld the RNW policy and notice periods as lawful; rejected claim that individuals had a right to notice of actual removal directions. |
| R (UNISON) v Lord Chancellor [2017] UKSC 51 | Constitutional right of access to courts; limits on access require express statutory authority and proportionality. | Applied principles to assess whether RNW policy unlawfully restricts access to justice. |
| R (Detention Action) v First-Tier Tribunal [2015] EWCA Civ 840 | Principles for assessing fairness of legal systems and inherent unfairness threshold. | Used to evaluate whether RNW policy’s time limits inherently restrict access to justice. |
| SB (Afghanistan) v SSHD [2018] EWCA Civ 215 | Last-minute representations and abuse of process in immigration removal context. | Supported rationale for early challenge opportunities and discouragement of last-minute delays. |
| R (Anufrijeva) v SSHD [2004] 1 AC 604 | Notice of decision required for it to have legal effect and enable challenge. | Referred to in relation to timing of notice and access to justice in removal cases. |
| R v Greater Manchester Coroner ex p Tal [1985] QB 67 | Judicial comity and respect for decisions of courts of coordinate jurisdiction. | Supported deference to FB decision by this Court. |
| Willers v Joyce (No.2) [2016] UKSC 44 | Judges of coordinate jurisdiction should generally follow each other’s decisions absent powerful reasons. | Supported following FB decision as a co-ordinate jurisdiction decision. |
| R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1 | Significance of monitoring policy to demonstrate compliance with access to justice. | Referenced in relation to SSHD’s monitoring obligations. |
| Chahal v UK (1989) 11 EHRR 439 | Absolute prohibition on torture and inhuman or degrading treatment under Article 3 ECHR. | Referenced in relation to ECHR challenges to removal policy. |
| R (ZO (Somalia)) v SSHD [2010] UKSC 36 | Scope of Procedures Directive and judicial review as effective remedy. | Applied to assess remedy for rejected further asylum representations. |
| R (Sathivel) v SSHD [2018] EWHC 913 (Admin) | Judicial recognition of abusive claims to delay removal. | Supported rationale for RNW policy’s timing restrictions. |
| R (J) v SSHD [2009] EWHC 705 (Admin) | Balance between access to tribunal and efficient disposal of asylum claims. | Referenced in relation to certification and fresh claim procedures. |
| R (Robinson) v Home Secretary [2019] UKSC 11 | Test for fresh asylum claims under Immigration Rules. | Applied in context of further representations and removal policy. |
| R (Das) v SSHD [2014] EWCA Civ 45 | Consequences of absence of evidence on probative points in judicial review. | Discussed regarding SSHD’s evidence disclosure. |
| R (VC) v SSHD [2018] EWCA Civ 57 | Consideration of vulnerable persons in immigration context. | Referenced in relation to vulnerability safeguards. |
| AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 | Consideration of Article 8 ECHR rights in immigration removals. | Referenced regarding safeguards for vulnerable persons. |
| R (Gudanaviciene & Ors) v Director of Legal Aid Casework [2015] 1 WLR 2247 | Effective remedy and procedural fairness under Article 8 ECHR. | Referenced in relation to procedural safeguards. |
| Soering v UK (1989) 11 EHRR 439 | Obligation to provide practical and effective protection under ECHR. | Cited to emphasise the nature of procedural safeguards required. |
| Saadi v Italy [2008] 24 BHRC 123 | Absolute nature of Article 3 ECHR protection against torture and inhuman treatment. | Referenced to underline non-derogable rights in removal cases. |
| R (AT) v SSHD [2017] EWHC 2714 | Legal aid arrangements and their impact on access to justice. | Discussed in relation to legal aid challenges. |
| R (Madan) v SSHD | Professional obligations of legal advisers in immigration judicial review. | Referenced in context of discouraging abusive last-minute claims. |
| TM (Kenya) v Home Secretary [2019] EWCA Civ 784 | Disruptive behaviour and impact on immigration removal proceedings. | Referenced in relation to policy rationale. |
| R (Salah Ali Eisa) v Home Secretary [2017] UKUT 00261 (IAC) | Judicial review framework for suspension requests under Dublin III Regulation. | Upheld framework requiring timely judicial review requests rather than automatic suspension. |
Court's Reasoning and Analysis
The Court undertook a detailed analysis of the RNW policy against the constitutional right of access to justice, statutory powers, and relevant EU and human rights law. It considered the policy's history, the legislative framework, and extensive evidence including case studies, statistical data, and procedural safeguards.
The Court recognized the significant safeguards embedded in the policy, including minimum notice periods (72 hours for detained cases, 5 working days for Dublin III cases, 7 days for non-detained cases), the ability to defer removal windows, access to legal advice (including legal advice surgeries in detention), and procedural protections for vulnerable individuals.
The Court acknowledged the reality that access to justice rights must be balanced against the legitimate public interest in effective immigration control. It applied established principles that access to justice does not mean unlimited or indefinite rights to challenge removal, and that some restriction and progressive diminution of access is inherent and lawful.
The Court examined the Claimant's case studies and found that while some individual errors and failures occurred, these did not demonstrate systemic unfairness or unlawfulness inherent in the policy. The availability of extensions and deferrals, subject to caseworker discretion and judicial review, provided sufficient flexibility to protect access to justice.
The Court gave respectful deference to the prior Upper Tribunal decision in FB, finding no compelling reason to depart from it. It found the RNW policy's replacement of notice of removal directions with notice of liability to removal lawful and rational, and the notice periods adequate in light of the evidence and safeguards.
Regarding the Dublin III Regulation challenge, the Court found that the policy provides for a reasonable period and effective remedies, including judicial review, and that the Claimant had not established a breach. Some ambiguity in the policy's application to subsequent certifications was noted, with directions for clarification.
On the Procedures Directive, the Court found no additional basis for invalidity beyond Grounds 1 and 2, given the availability of judicial review as an effective remedy.
Regarding ECHR Articles 3 and 8, the Court found that the policy includes appropriate safeguards and that the Claimant had not demonstrated systemic risk of unlawful removal breaching these rights. The Court noted the absolute nature of Article 3 but found no evidence that the policy failed to provide practical and effective protection.
The Court criticized the Defendant’s earlier failure to provide timely information and monitoring data but accepted later disclosures and improvements in monitoring. It emphasized the importance of ongoing engagement between stakeholders to evolve the policy.
Holding and Implications
The Court DISMISSED the Claimant's judicial review challenge on all grounds.
The RNW policy was held to be lawful, rational, and consistent with the constitutional right of access to justice, relevant EU law including Dublin III and the Procedures Directive, and the ECHR. The Court found that the policy contains adequate safeguards and flexibility to ensure fairness and effective access to legal remedies.
The decision means that the Defendant may continue to operate the RNW policy as currently formulated, subject to the noted clarification regarding notice periods following subsequent certifications in Dublin III cases.
No new precedent was established beyond affirming the principles applied in the prior Upper Tribunal case (FB) and the extensive application of access to justice jurisprudence. The judgment endorses the balance between immigration control and individual rights as struck by the policy and legislation.
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