R Medical Justice v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 13 September 2019 |
| Neutral Citation | [2019] EWHC 2391 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/543/2019 |
| Date | 13 September 2019 |
[2019] EWHC 2391 (Admin)
Mr Justice Freedman
Case No: CO/543/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charlotte Kilroy QC and Alison Pickup (instructed by The Public Law Project) for the Claimant
Deok Joo Rhee QC and Colin Thomann (instructed by The Government Legal Department) for the Defendant
Stephanie Harrison QC and Shu Shin Luh (instructed by The Equality and Human Rights Commission) for the Intervenor
Hearing dates: 19 – 21 June 2019
Judgment Approved by the court
Index
| Paragraphs | Contents |
| 1 – 14 | Introduction |
| 15 – 21 | History of challenges to the removal window policy |
| 22 – 35 | Domestic legislation (page 10) |
| 36 – 38 | The RNW Policy |
| 39 – 40 | The challenges effected in 2014 and operated thereafter |
| 41 – 65 | The Guidance |
| 66 – 79 | The case of FB |
| 80 – 100 | The evidence on behalf of the Claimant |
| 101 – 154 | Case Studies |
| 155 – 196 | The deferral of removal and its significance |
| 197 – 200 | The evidence of unlawful removal case studies |
| 201 – 223 | The law relating to access to justice |
| 224 – 245 | Applying the law on access to justice to the facts |
| 246 – 248 | Other Cases |
| 249 – 258 | The impact of the case studies |
| 259 – 263 | The Impact of the deferral notice |
| 264 – 267 | The impact of evidence from the Defendant |
| 268 – 278 | The impact of FB and whether the Court should follow FB |
| 279 – 291 | Ground 1: Ultra Vires / Access to Justice |
| 292 – 294 | Ground 2: Rationality |
| 295 – 324 | Ground 3: Dublin III Regulation |
| 325 – 330 | Ground 4: Procedures Directive |
| 331 – 357 | Ground 5: Articles 3 and 8 ECHR |
| 358 – 363 | Conclusion |
Introduction
This is an application for judicial review which challenges a government deportation policy in respect of the introduction of a removal notice window policy (“the RNW policy”) instituted by the Defendant (“the SSHD”) in 2015. The challenge is by Medical Justice, an independent charity established in 2005 which facilitates the provision of independent medical advice and representations to those detained in immigration removal centres, as well as conducting research into issues affecting those in immigration detention. The challenge is brought on a public interest ground.
Pursuant to an order of the Court made on 20 May 2019, the Equality and Human Rights Commission (“the EHRC”) has intervened by written submissions and orally limited to 30 minutes.
The RNW policy is contained in the SSHD's Guidance document entitled Judicial Review and Injunctions (“JRI”) Version 17.0, dated 5 November 2018. Version 18.0 was published on 4 April 2019, incorporating the interim suspension of the RNW policy following the interim injunction ordered by Walker J. In this judgment, the references herein are to Version 17.0 save where the contrary appears. Further detail on the use and content of the notices is contained in another guidance document entitled Liability to Administrative Removal (non-EAA): consideration and notification (“LAR”): there is also a document about the SSHD's policy entitled Arranging Removals (“AR”).
The RNW policy affects all persons liable to removal under the three main immigration statutes. The main focus of the present challenge is the adequacy of the notice period which precedes the opening of the “removal window” – during which period the individual may not be removed. This is 72 hours in detained cases (which includes at least 2 working days), 5 working days in ‘Dublin III’ transfer and non-suspensive appeal cases, and 7 calendar days in non-detained cases. The Claimant argues that the 72-hour notice period, as well as the longer notice periods applicable in Dublin III transfer cases and in non-detained cases, are each inadequate on the basis that it is “ impossible” for individuals and/or their advisors to carry out the necessary work to be able properly to challenge removal before the expiry of the relevant notice period.
The challenge to the adequacy of the notice periods is then set against the fact that (since 2015) the Policy operates by bringing forward the notice period to the time when the individual is notified of his or her liability to removal. Upon the expiry of the notice period, the removal window (of 3 months or 21 days) is then opened during which time the individual may be removed without further notice. This is contrasted with the “practical consequences” of the prior position when notice was given only once a decision to set removal directions had been taken: see Grounds of Claim, at [15]. A particular complaint is that the policy gives the SSHD a lengthy window in which, after the expiry of a short opportunity to identify any new ground for being able to stay here, such persons can be removed without any further warning at all.
The present challenge is brought, not by individuals who were subject to the Policy, but as a public interest challenge by Medical Justice, represented by the Public Law Project (“PLP”). It proceeds with the benefit of more extensive evidence, which intended to cover “ the full run of cases” falling with the Policy: see Navarette WS1 at para 16(1) to (10). The Claimant:
(1) claims that the Policy is ultra vires (“ Ground 1”);
(2) adds that it is irrational for essentially the same reason (“ Ground 2”);
(3) contends that the Policy is in breach of Article 27 of Regulation 604/2013/EU establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (“ Dublin III Regulation”) (“ Ground 3”);
(4) contends that the policy is in breach of Article 39 of the Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (“ the Procedures Directive”) (“ Ground 4”); and
(5) contends that the Policy is in breach of Articles 3 and 8 European Convention on Human Rights (“ECHR”) (“ Ground 5”).
It is the Claimant's case that the RNW policy is ultra vires and unlawful because it gives rise to an unacceptable risk of interference with the constitutional right of access to justice, and it also fails to comply with the SSHD's obligations under EU Procedures Directive 2005/85/EC, Article 27 of the EU Regulation EU/604/2013 (Dublin III), and Article 47 of the EU Charter, and Articles 3 and 8 of the ECHR. A submission which is made is that the effect of the RNW policy is to limit or abrogate the right of access to court to challenge decisions taken by the SSHD without statutory authority, express or implied, to do so.
The Claimant seeks at paragraph 84 of the claim form the following relief:
(1) a declaration that the removal window policy is
(i) ultra vires (“Ground 1”);
(ii) irrational (“Ground 2”);
(iii) a breach of Article 39 of the Procedures Directive (“Ground 3”); and
(iv) a breach of Article 27 of Dublin III (“Ground 4”);
(2) An order quashing the removal window policy; and
(3) Interim relief preventing the SSHD from removing individuals pursuant to the removing window policy pending the outcome of this claim.
There was a recent unsuccessful challenge to the RNW policy in R (on the application of FB and another) v Secretary of State for the Home Department (removal window policy) [2018] UKUT 428 (IAC) (hereafter referred to simply as “ FB”). FB was a decision of the Upper Tribunal (in which its President Mr Justice Lane sat with Upper Tribunal Judge O'Connor). The challenge in FB was in respect of two specific applicants, namely FB and NR. There was an intervention in that case, by PLP appearing as interveners, and not as solicitors, instructed by the applicants: the applicants were represented by Duncan Lewis Solicitors. The challenge was both in respect of the alleged inadequacy of the 72-hour and other notice periods and also as to a system that does not provide a notice of the actual removal, and is confined to notice of liability for removal. It concentrated on what is Grounds 1 in the instant public interest challenge: it did not raise a Dublin III challenge. It held that the immediate predecessor (version 15.0 which came into force on 21 May 2018) to the current RNW policy was, as a general matter, compatible with access to justice. An appeal against that decision is due to be heard by the Court of Appeal on 15–16 October 2019, permission to appeal having been given by the Upper Tribunal. It is submitted by SSHD that (a) the decision is correct; (b), in any event, it is a decision of a court of co-ordinate jurisdiction which should be followed by this Court unless there is a powerful reason for departing from it, and (c) there is no reason for departing from FB.
The instant claim was issued on 7 February 2019. The application is brought with the permission of Walker J on 14 March 2019. A submission was made to Walker J that this case involved the same challenge as in FB, and there were arguments about the policy being ultra vires and about access to justice being denied which were considered and rejected by the Upper Tribunal. However, Walker J treated the instant case as being different.
The Claimant seeks to make good its challenge by reference to case studies: see the 11 case studies set out in the first witness statement of Ms Navarrete, a 12 th case study produced in the witness statement of Ms Clarke of the Claimant's solicitors and an additional 4 case studies considered by the Upper Tribunal in FB. The existence of the 12 case studies in respect of a much wider range of categories presented,...
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