FB v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,O'Connor |
| Judgment Date | 28 September 2018 |
| Neutral Citation | [2018] UKUT 428 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 September 2018 |
[2018] UKUT 428 (IAC)
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE O'Connor
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
R (on the application of FB and another) v Secretary of State for the Home Department (removal window policy)
The Secretary of State's “removal window” policy, as set out in Chapter 60 of the General Instructions of 21 May 2018, was, as a general matter, compatible with access to justice but was legally deficient, both in its treatment of cases where a removal window is deferred and in the lack of information regarding place and route of removal.
For the Applicants: Ms S Naik QC and Mr A Bandegani, instructed by Duncan Lewis Solicitors
For the Respondent: Mr S Kovats QC and Mr C Thomann, instructed by the Government Legal Department
For the Intervener: Ms C Kilroy and Ms A Pickup, instructed by the Public Law Project
A nation state has a right to control who comes onto its territory. In states that observe the rule of law, the right is to be exercised compatibly with that rule. A state may, in addition, decide to circumscribe its powers of control by means of domestic legislation or as a result of obligations under international treaties, to which the state is a party.
These “rolled-up” judicial reviews concern challenges to the way in which the respondent seeks to secure the removal from the United Kingdom of those whom he considers have no legal basis for entering or remaining in this country. Specifically, the applicants, who were each to be removed by the respondent in November 2017, assert that the respondent cannot lawfully operate a “removal window” policy, as set out in Chapter 60 of the General Instructions (Judicial reviews and injunctions), published by the respondent. In both cases, the Upper Tribunal granted a stay on removal, following which the applications were directed to be dealt with on a “rolled-up” basis. The Tribunal also granted permission to the Public Law Project (PLP) to intervene in the proceedings.
The present cases concern removal under section 10 of the Immigration and Asylum Act 1999. Before looking at that power, however, mention needs to be made of sections 3 and 5 of the Immigration Act 1971 (read with section 32 of the UK Borders Act 2007). Section 3(5) of the 1971 Act provides that a person who is not a British citizen is liable to deportation if the respondent deems his deportation to be conducive to the public good or another person to whose family he belongs is or has been ordered to be deported. A person liable to deportation may be the subject of a deportation order, made under section 5, requiring that person to leave and prohibiting him from entering the United Kingdom.
Section 10 of the 1999 Act is entitled “Removal of certain persons unlawfully in the United Kingdom”. So far as relevant for present purposes, it provides as follows:-
“(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.
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(7) For the purposes of removing a person from the United Kingdom under subsection (1) … the Secretary of State or an immigration officer may give any such direction for the removal of the person as may be given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.
…”
In substance, paragraphs 8 to 10 of Schedule 2 to the 1971 Act enable an immigration officer to give directions to the captain of a ship or aircraft, requiring the captain to remove the person concerned from the United Kingdom in that ship or aircraft. Directions may also be given to the owners or agents of the ship or aircraft, requiring them to remove the person from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents. Such owners or agents may, additionally, be given directions requiring them to make arrangements for the person's removal to a country or territory specified by the Secretary of State, being either:-
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“(i) a country of which he is a national or citizen; or
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(ii) a country or territory in which he has obtained a passport or other document of identity; or
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(iii) a country or territory in which he embarks in the United Kingdom; or
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(iv) a country or territory to which there is reason to believe that he would be admitted.” (paragraph 8(1)(c)).
The challenges brought by the applicants, supported by the PLP, are directed at Chapter 60. The relevant version of Chapter 60, for our purposes, is that published on 21 May 2018. Although this was after the date on which the current proceedings commenced, it was effectively common ground (and we consider) that this latest version is the one that requires to be substantively examined.
The 21 May 2018 version of Chapter 60 is set out in full in the Annex to this decision. It is, however, convenient at this point to highlight its salient features, for the purposes of this case. In doing so, we are not helped by the fact that this version, unlike its predecessor, is not numbered internally.
The guidance begins by stating that the “Version includes some additional interim clarification concerning Deferral of Removal …”. We accept the respondent's evidence that the provisions in question are “interim”, only in the sense that the respondent does not intend to revert to the position where no such “clarification” is made. Whether, in the circumstances, the term “interim” was helpful is, perhaps moot.
The guidance describes certain types of event that could be subject to judicial review. These comprise a failure to act; the setting of removal directions; the refusal to accept that further submissions amount to a fresh claim; a decision to certify a claim as clearly unfounded; and detention.
Under the heading “Notice of removal” it is stated that notice of removal may be given in three different forms:-
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“• Notice of a removal window – the person is given notice of a period, known as the removal window, during which they may be removed.
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• Notice of removal directions – the person is given notice of removal directions and thus knows the exact date of departure.
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• Limited notice of removal – a more restricted version of the removal window form of notification.”
A notice of removal window makes it plain that the “window” is a period “during which removal may proceed without further notice”. A notice of removal window is said to be suitable for persons being removed under section 10 of the 1999 Act and those being deported under section 3 of the 1971 Act.
A notice of a removal window will give a “notice period”. When the notice period ends, the removal window begins and a person “may be removed during the removal window”.
The notice period begins when the notice is given to the person concerned, at the time the notice is given. A notice of removal window is not to be given to a person who has leave to enter or remain or to a person who is able, within the relevant time limit, to file an in-country notice of appeal or administrative review, or where such is pending.
As already stated, the removal window says when the notice period ends. The removal window “will run for a maximum of three months” from the time the notice of liability for removal or deportation decision letter is served. If, however, a removal window has not expired, it can be extended “by way of reminder for a further 28 days”.
The guidance states that if a person “makes an asylum, human rights or EU free movement claim, involving issues of substance which had not been previously raised and considered, or a further application for leave, the window ends”.
Where a removal window has expired, or where removal is not via one of the “safe countries” listed in section 3.2 and which was not notified in the original notice, then a fresh removal window has to be notified, with the result that a new notice period will begin. The form concerned (RED.0004 (Fresh)) may specify a “range of potential transit points”.
The guidance then turns to the requirement for notice of liability for removal to be accompanied by an “Immigration Factual Summary”, which must have a chronology of the case history of the person concerned, including details of whether any appeal rights were exercised in past applications for judicial review. Both the notice of liability for removal or deportation decision letter must be copied to any legal representative, where the respondent has details of such, or where a person asks for a specified representative to be sent copies.
If a person is detained or arrested for removal later on the same day but states that their circumstances have changed or that they wish to access legal advice, the guidance states that they will not be removed whilst they are seeking such advice, or have representations outstanding. Where representations do not amount to a fresh protection or human rights claim and have either already been considered or had not previously been considered but would not create a realistic prospect of success “in terms of leading to an outcome other than removal from the UK”, the individual in question can be removed on the same day “once we have considered the outstanding representations”.
The guidance says that certain categories are not suitable for a removal window. These include “family cases” (which are defined); cases where a person has made a protection or human rights claim, or appeal, which is pending; and where the Home Office has evidence, beyond a self-declaration, that a person is suffering from a condition...
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