R (Medical Justice) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber |
| Judgment Date | 26 July 2010 |
| Neutral Citation | [2010] EWHC 1925 (Admin) |
| Docket Number | Case No: CO/4321/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 July 2010 |
[2010] EWHC 1925 (Admin)
Before: The Honourable Mr Justice Silber
Case No: CO/4321/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Dinah Rose QC and Charlotte Kilroy (instructed by Public Law Project) for the Claimant
Jonathan Swift QC and Joanne Clement (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 15 and 16 June 2010
Further written submissions and further evidence supplied from 7 June 2010 until 2 July 2010
Mr Justice Silber:
I. Introduction
This application is a challenge to the lawfulness of the policy of the Secretary of State for the Home Department (“the Secretary of State”), which came into effect on 11 January 2010 and which is set out in a document entitled “Judicial Review and Injunctions” (“the 2010 policy document”). This policy gives individuals, who fall into certain specified categories and who have made unsuccessful claims to enter or to remain in the United Kingdom, little or perhaps no notice of their removal directions, which are the specific arrangements made for their removal from the United Kingdom. This new policy to a large extent constitutes an exception to its previous policy but it does repeat existing exceptions.
The claimant is a charity, which facilitates the provision of independent medical advice and representation to those detained in immigration removal centres as well as conducting research into issues affecting those in immigration detention.
The claimant contends that the policy in the 2010 document:—
(a) abrogates the constitutional right of access to justice without statutory authority and is therefore ultra vires;
(b) cannot rationally be justified;
(c) fails to pay due regard to the Secretary of State's duties under the Race Relations Act 1971 (“RRA”) and the Disability Discrimination Act 1995 (“ DDA”);
(d) violates article 5(4) and article 6 of the European Convention on Human Rights (“the ECHR”); and
(e) discriminates unfairly against those to whom it is applied contrary to article 14 of the ECHR when read together with articles 5, 6 and 8 of the ECHR.
Each of these allegations is strenuously denied. Permission to pursue this claim was granted by Judge Thornton QC, who was sitting as a deputy High Court Judge. He granted a protective costs order in favour of the claimants limiting the claimant's liability for the defendant's costs to £5000. By judgment dated 21 May 2010 ( [2010] EWHC 1425 (Admin)), Cranston J granted interim relief preventing the defendant from relying on the policy under challenge until the determination of the present claim. He also amended the protective costs order to gibe reciprocal protection to the defendant.
II. History of the Policy under Challenge
The Secretary of State is charged by Parliament with maintaining immigration control: see sections 1(4) and 3(2) of the Immigration Act 1971 (“the 1971 Act”). She is therefore responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed. Another important countervailing factor is the right of those about to be removed to challenge the removal directions because they infringe their rights under common law, under statute or under the ECHR.
This application relates to the way in which the Secretary of State performs those duties and in particular the policy in the 2010 document. Before dealing with that policy, it is appropriate to explain how this policy emerged because this is relevant to understand the policy under challenge and how the Secretary of State seeks to justify it.
From July 1999, the Immigration and Nationality Directorate (“IND”) adopted a policy following discussion with the Administrative Court which was known as “the Concordat” and which was designed to clarify the arrangements for responding to last-minute judicial review challenges to removal and thereby reducing the high number of injunctions being sought in such cases. Under the Concordat, the IND agreed to defer enforced removals of an individual for three days in the event of a threat of judicial review so as to enable a court reference number to be obtained. If it was confirmed within 24 hours that judicial review proceedings had been initiated, the removal directions would then be cancelled.
There was a slightly different position in respect of charter flights because the removal directions would not always be suspended in the event of what were considered to be abusive and ill-conceived threats of legal proceedings which were being made only to prevent removal. In those circumstances, the claimant or his or her legal representatives were informed that they would need to obtain an injunction to prevent removal. The reason why charter flights were treated differently was because of the complexities, practicalities and costs of arranging such an operation.
By 2002, the permission stage in the Administrative Court was taking on average more than 6 weeks to resolve and IND was unable to hold an individual in detention for that period of time with the result that the individual would be released. Thereafter IND would be faced with the practical difficulties of trying to trace the individual concerned when they subsequently issued further removal directions. Rather than revising the Concordat, new legislation was then introduced for non-suspensive appeals under sections 94 and 96 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), which provided for certain cases to be certified which then precluded in-country appeals and the Administrative Court also agreed to expedite permission applications.
By 2005, there were concerns by IND that the judicial review process was being abused for the purpose of frustrating removal because in a significant number of cases, threats of judicial review had been made or a Court Office reference number had been obtained but the application for judicial review was not then pursued. Further, when judicial review proceedings were pursued, permission to proceed was given in an extremely small number of cases and an even fewer number of applications were successful at the subsequent substantive hearing, although in around 100 immigration and asylum cases a month IND withdrew the decision under challenge or conceded the claim. In consequence, according to IND, considerable public funds were wasted in incurring expenditure in respect of detention and escort costs as well as of flight bookings for removals that did not take place. IND was concerned that it was later unable to trace individuals who had been released from detention as their removal was no longer imminent.
Discussions then took place between IND and the Administrative Court and then in May 2006, revised instructions were issued to IND staff confirming that removal directions should be notified to the person being removed in time for legal advice to be obtained and an Administrative Court Office reference number obtained. A draft of the instruction indicates that save in the case of certain charter flights or where prompt removal was in the best interest of the person concerned or refusal to enter at a port, the person concerned would be given at least 48 hours’ notice (including at least one working day) between the time at which the person was notified of removal directions and the time when they were carried out.
In November 2006, IND announced a further change to the policy whereby removal would no longer be deferred upon threat of judicial review but would only be deferred upon receipt of an Administrative Court Office reference number and of the grounds of claim. The reason for this requirement was to stop the practice of suspending removal directions in response to threats of judicial review, which turned out to be unfulfilled so frustrating a removal. IND subsequently agreed with the Administrative Court Office that there would be a minimum period of 72 hours between the setting of removal direction and actual removal during which time an application for judicial review might be made with two working days being included in the 72 hours.
It was also a condition that applications for judicial review would need to be supported by written grounds of claim so that an Administrative Court Office reference number was obtained as proof that the claim had been instituted. Another feature was that IND included a short factual history summary of the history of the case with removal direction and that this would assist in the preparation of the claim for judicial review. The position was then that removal would proceed unless the Administrative Court Office number and grounds of claim were received before the 72 hour period elapsed or an injunction staying the removal directions was obtained. The short factual history recorded applications and decisions but not the reasons for them.
The matter was remitted to the Civil Procedure Rules Committee, which carried out a consultation exercise and produced a draft change to the procedural rules which became Practice Direction 54A CPR 54. The Committee was aware that this process would...
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