The solicitors Duncan Lewis have successfully challenged aspects of the Home Office’s removal window policy.
What is a removal window?
Since 2015, the Home Office has been able to inform someone they are liable to removal, and then remove that person at any given point during a three month removal window.
This is a change to the former legal obligation of issuing “removal directions” which would specify the date, time and flight number of the removal. Although the Home Office may still in some cases issue “courtesy letters” containing this information, there is no legal obligation to do so apart from those cases where the removal window cannot be used.
The Home Office must give you notice that you are liable to removal, and cannot lawfully remove you during this notice period. During this notice period, you may be able to legally challenge the removal (see below). Once that notice period is over, the three month removal window begins and you can be removed, without notice, at any point during it.
The general notice period is seven calendar days if you are not detained, or just 72 hours if you are detained. The 72 hours must include at least two working days. The last 24 hours must include a working day unless the notice period already includes three working days.
There are some circumstances in which removal windows cannot be used.
Home Office amends its guidance
At the end of May, the Home Office issued an amended version of their Enforcement Guidance and Instructions. A new section was added to Chapter 60, “Judicial Review and injunctions” in response to a legal challenge by Duncan Lewis Solicitors which argued that the removals policy is “ultra vires, unless it contains sufficient flexibility to cater for individual cases as well as guaranteeing the right of access to legal representation and the courts to challenge removal.” Ultra vires means going beyond the scope of its powers. The May guidance contained new information about situations when a deferral of removal notice should be considered.
The judicial review was then heard in the Upper Tribunal, and the judgment was published in early November 2018. The Home Office has again issued amended guidance to reflect the Upper Tribunal judgment. You can find the new guidance here. It’s useful to be aware of this document in case you wish to argue for deferral of a removal window and you don’t think the Home Office has been following its own guidance.
One of the issues being challenged was that the removal window – usually a three month period – does not inform the person of the exact time and date that removal will take place, making it difficult to access timely legal advice. The new Home Office guidance says:
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.
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 extending the notice period 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.
The guidance instructs that:
“If, during the notice period, an unrepresented person is yet to instruct a legal representative you must always consider extending the notice period.”
The May guidance had referred to “deferring” the notice period, while this latest guidance refers to “extending” the notice period.
The guidance also says that:
“A delay caused by a change in legal representative may be unavoidable and consideration must be given based on the merits of the case. It may be reasonable to extend the notice period where the individual has unavoidably lost contact with previous representatives, for instance, because the legal service has ceased business or discontinued responsibility for other reasons.”
On accessing legal advice while in detention, the guidance says:
A new form of removal notice, called RED.006 has been introduced for these circumstances. If the Home Office agrees to deferring removal, they issue a RED.006 which extends the notice period – see above – and removal window by the same amount so that the person has a “reasonable” opportunity to access legal advice.
As the solicitor in this case, Husein Meghji, says in the write up of the case on the Free Movement blog:
Legal representatives now have a greater range of tools at their disposal to request deferral and obtain disclosure of client’s documentation. Additionally, the new policy now states in the terms that deferral of removal will be necessary to ensure an individual has had a “reasonable opportunity to access legal advice and have recourse to the courts“; a broad provision which can be relied on in a potentially wide range of situations.
The effectiveness of these changes will depend largely on the Home Office’s application of the new provisions in practice and therefore remains to be seen.
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