Removal window operated unlawfully, says Court of Appeal

Legal Updates

Last year, we wrote on the blog that the Home Office policy of “removal windows” had been suspended after a challenge by the organisation Medical Justice.

What are removal windows?

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 still in some cases issued “courtesy letters” containing this information, there was no legal obligation to do so apart from those cases where the removal window cannot be used.

The Home Office could give you notice that you were liable to removal, and could not lawfully remove you during that notice period. 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.

Once that notice period is over, the three month removal window began and you could be removed, without notice, at any point during it.

The policy of removal windows has remained suspended while the legal challenge has continued through the courts.

Last week, the Court of Appeal ruled that the Home Office had been operating the policy unlawfully. You can read the full judgment here.

What is unlawful about the policy?

The first thing to note is that the Court of Appeal did not say that the removal window policy itself was unlawful.

The legal argument in the case was about access to the courts. The Court of Appeal did not agree that not knowing which day or time you will be removed necessarily denies you adequate access to the courts.

The Home Office position is that, because you are given 72 hours notice before the removal window starts (you cannot be removed during those 72 hours), that gives you time to make any further legal representations necessary.

In practice however, some people will not able to access the courts between the time they are told they are liable to removal, and the time the removal window begins.

On being notified that you are liable to removal from the UK, you might be able to – within those 72 hours – make further submissions to the Home Office (new evidence in an asylum case, for example; or evidence about your right to family and private life in the UK to give another). However, it’s possible that the Home Office will then make a decision on those submissions (a refusal) once the removal window has started, after the 72 hours are up. You then have no idea of the timescale within which you need to challenge this refusal in the courts as you can now be removed without any notice within the next three months.

As Medical Justice say in their press release on the operation of the policy:

“negative decisions which could be challenged in the courts can then be given to migrants shortly before removal and even on the same day, making it impossible for the individual to challenge an unlawful removal.”

This way of operating the removal window was found to be unlawful.

Medical Justice say that over 40,000 removals were affected by the policy. Some people were recognised as having been removed unlawfully, were brought back to the UK and granted leave to remain.

What happens now?

Since the removal window policy has been suspended, the Home Office has had to issue removal directions which specify the day and time of intended removal.

The court found that the policy would be lawful if it were operated in a way that protected access to the courts. If the Home Office can implement the policy in a way that does this, they will begin using the removal window again and stop issuing removal directions.

We will update the legal blog as soon as there is more news on this.

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