R Medical Justice v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Maurice Kay,Lord Neuberger MR |
| Judgment Date | 22 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1710 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No : C4/2010/2189 |
| Date | 22 November 2011 |
[2011] EWCA Civ 1710
Master of the Rolls
(Lord Neuberger)
Lord Justice Maurice Kay
and
Lord Justice Sullivan
Case No : C4/2010/2189
IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM HIGH COURT
ADMINISTRATIVE COURT
(MR JUSTICE SILBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jonathan Swift QC and Ms Joanne Clement (instructed by Treasury Solicitors) appeared on behalf of the Appellant
Ms Dinah Rose QC and Ms Charlotte Kilroy (instructed by Public Law Project) appeared on behalf of the Respondent
Introduction .
This is an appeal from the order dated 28 July 2010 of Silber J allowing the respondent's application for judicial review and granting a quashing order in respect of paragraphs 3.1.1 to 3.1.5 in section 3 of the appellant's policy document entitled "Judicial Review and Injunctions".
The parties are agreed that the reference only to paragraphs 3.1.1 to 3.1.5 in the judge's order is in error. It is common ground that the judge intended to quash section 3 of the policy document save insofar as the policy applies to Port cases as referred to in paragraphs 3.1 and 3.1.6 of the policy.
The policy
Section 2 of the policy document sets out the procedure to be followed when removal directions are set. Paragraph 2.1 sets out the standard period of notice for removal directions:
"2.1 Enforcement cases
A minimum of 72 hours (including at least 2 working days) must generally be allowed between informing a person of their removal directions and the removal itself. The last 24 hours of this period must include a working day. There are occasions where this will not apply. (see section 3 of this guidance) which you should consider before setting removal directions."
Section 3 of the policy document deals with those cases: "where standard notification may not [be] required when setting removal directions".
"This Section details when you do not need to provide standard notification when setting removal directions. Standard notification of removal directions does not need to be given where:
a) an exception applies, or
b) where a second period of notification is not needed following a failed removal.
3.1 Exceptions to standard notification of removal
Below we detail the following exceptions to standard notification of removal
• Certain medically documented cases;
• Certain cases involving children;
• Certain cases where swift removal is required because of the best interests of another;
• Certain cases where swift removal is required to maintain order in removal centres;
• Where the removee consents to early removal;
• Port cases where removal occurs within 7 days of refusal.
Where an exception is applied you must ensure that you apply certain safeguards:—
(i) You must let the legal representatives know by fax as soon as the removee is told and where possible bring the matter to the attention of the legal representatives.
(ii) If asked, you must allow the individual to speak to their legal representatives. This may involve providing the removee with a mobile telephone.
(iii) Where possible you must schedule the removal for a working day, during office hours.
(iv) Where you provide the removee with less than the standard notification of removal you should nonetheless provide as much notice as possible.
(v) The application of an exception should where possible only delay service of the removal directions. If possible it should not delay service of a decision to refuse any immigration application or further submission.
(vi) You must obtain written authority at Deputy Director level before applying any of these exceptions (other than in Port cases) and send details to the Litigation Management Unit. Where removees are held within an Immigration Removals Centre you should obtain authority from a Deputy Director from within detention services.
This list of safeguards is not definitive. It may be appropriate to build in other safeguards on a case by case basis to ensure that removees have effective access to the courts."
Paragraphs 3.1.1 to 3.1.5 deal in greater detail with the first to the fifth of the exceptions listed in paragraph 3.1. Paragraph 3.1 also contains a sixth exception, Port cases which are dealt with in more detail in paragraph 3.1.6 but which are not relevant for the purposes of this appeal.
The judgment below
The lawfulness of the Section 3 policy was challenged on a number of grounds see paragraph 3 of Silber J's judgment dated 26 July 2010: [2010] EWHC 1925 (Admin). The judge concluded that the Section 3 policy referred to as the "2010 exceptions" in the judgment was unlawful because it abrogated the constitutional right of access to justice. He also found that the reduction of the 72 hour notice period in two of the five categories, those where there was a risk of suicide/self harm and unaccompanied children where there was a risk of absconding, was unlawful because the appellant had not complied with her duties under section 49A of the Disability Discrimination Act 1995 and Section 7(1) of the Race Relations Act 1971.
The judge's overall conclusions on the main issue are contained in paragraphs 171 to 173 of his judgment:
"171. The main challenge of the claimant to the 2010 exceptions was that it abrogated the constitutional right of access to justice. This right means that every individual must be in a position to challenge a decision in the court. This right was acknowledged by the Secretary of State in the 2007 policy document which stated that "we need to ensure that persons, subject to removal enforced removals have sufficient time between the notification of the [removal directions] and the date/time of removal to seek legal advice and/or to apply for [judicial review]". Further the Chief Executive of UKBA stated in a letter dated 1 March 2007 in relation to the minimum 72-hour time frame that "in setting the revised minimum time frames for notification of removal we have had to balance the need to ensure proper access to court with the public interest in establishing a robust removal process that makes sufficient use of limited detention facilities".
172. Unfortunately, the 2010 exceptions do not take account of "the need to ensure proper access to the courts" as they permit the Secretary of State to depart from the standard policy of giving a minimum of 72 hours' notice of removal including at least two working days with the last 24 hours being on a working day. The effect of the 2010 exceptions is that in practice in the limited time available between serving the removal directions and the actual removal, it is frequently almost impossible that somebody served with removal directions will be able to find a lawyer who would be ready, willing and able to provide legal advice within the time available prior to removal let alone in an appropriate case to challenge those removal directions. There is a very high risk if not an inevitability that the right of access to justice is being and will be infringed. Miss Rose suggested that the Secretary of State could have provided at her expense an independent lawyer to advise those served with abridged notice.
173. Unfortunately, there are no adequate safeguards built in to the present policy which would ensure that removal could not take place. If somebody had been given very short notice of removal and then in the time available before removal it was impossible for him to contact a lawyer and to obtain advice. There are instances which are set out in paragraphs 108 and 109 above and which show how the policy functions and how it could preclude those served with short notice from enjoying the basic right of access to justice. This means the policy in the 2010 exceptions and which is contained in Section 3 of the 2010 policy document, which was suspended as a result of an interim judgment by Cranston J, has to be quashed. I should record that I considered the possibility that I should not quash the policy but that instead should merely await challenges in individual cases but that is not appropriate because in many cases where access to justice is not available to those served with abridged notice pursuant to the 2010 exceptions, they will be deported and will be unable to pursue their claim from abroad. There are also, as I have explained other grounds for quashing parts of the policy in Section 3 of the 2010 document. Finally I should stress that nothing in this judgment casts any doubt on the legality of the minimum 72 hour time frame and the effect of this quashing order is that those covered by the 2010 exceptions now fall within that time frame."
The grounds of appeal
There are now effectively three grounds of appeal. First, it is submitted that the judge impermissibly extended the substantive content of the common law right of access to the courts by concluding that the common law principle required the provision of legal advice to a person served with removal directions and that, absent the provision of such advice, removal from the United Kingdom would be unlawful. In the appellant's skeleton argument it was submitted that:
"The effect of the judge's conclusion is that in order to ensure the right of access to a court every individual who wishes to access that court must be able to receive legal advice, possibly even paid for by the state. It would have significant implications for the provision of legal services in this country and for the availability of public funding for legal advice."
Second, since it is the lawfulness of the Section 3 policy that is in issue...
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