R (on the application of FB (Afghanistan) and another) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening)
| Jurisdiction | England & Wales |
| Neutral Citation | [2020] EWCA Civ 1338 |
| Year | 2020 |
| Court | Court of Appeal (Civil Division) |
2020 July 7, 8, 9; Oct 21
Immigration - Removal - Notice - Secretary of State adopting policy whereby irregular migrants removed during removal window without service of removal directions - Whether policy unlawful - Whether policy contrary to statutory or common law requirement to serve removal directions before effecting removal - Whether policy breaching common law right of access to justice -
Section 10 of the Immigration and Asylum Act 1999F1 was amended so as to provide that any person in the United Kingdom who required leave to enter or remain but did not have it was liable to be removed. As part of the same suite of changes, the Secretary of State adopted a new policy whereby a person who was liable to removal under section 10 could be served with a notice which confirmed liability for removal and the country or area to which removal was to be effected and set a short period during which there would be no risk of removal, followed by a “removal window” during which he or she might be removed without service of removal directions or any further notice. The claimants’ claims for judicial review of the policy were dismissed. They both appealed, contending that the policy was unlawful since: (i) it was contrary to the requirement in the statutory scheme and/or the common law that notice of directions specifying a date and time of removal be given to a person whom it was proposed to remove; and (ii), alternatively, it breached the common law right of access to justice because under the policy many unappealable decisions adverse to the person in question were inevitably made in the removal window period so that, once the decision was made and notified, there was a serious risk of removal before the person affected was able to gain access to the court to challenge the decision by way of judicial review.
On the appeals—
Held, (1) that nothing in the Immigration and Asylum Act 1999, or any other provision in the statutory immigration scheme, expressly required the Secretary of State to provide a person whom it was proposed to remove with notice of removal directions; that although section 10(7) of the 1999 Act conferred a power to give directions for removing a person, it imposed no duty to do so, and in any event concerned notice to individuals connected to the vehicle to be used to effect removal rather than the person to be removed; that, furthermore, the general public law duty to give a person notice of any decision which had a direct adverse impact on his or her rights or interests was neither absolute nor stand-alone, but rather was a duty associated with the obligations of procedural fairness; that on analysis the information given to a person to be removed under the Secretary of State’s policy was sufficient to meet that duty; and that, accordingly, it was not inherently unlawful for the Secretary of State to effect removal of an irregular migrant where that migrant had been given notice of a removal window, even if no notice of the exact intended date and time of removal, in the form of removal directions, had been given (post, paras 10, 79–87, 169, 175).
(2) But, allowing the appeals, that it was well established that the common law right of access to justice conferred a fundamental right to effective access to justice in real world conditions, including the right to be afforded sufficient time to take and act on legal advice, which could only be restricted by the clear authorisation of Parliament in the form of express statutory provision or by way of necessary implication; that in determining whether the Secretary of State’s policy unlawfully restricted the right of access to justice the court had to focus on whether there was a risk to the right inherent in the policy itself, rather than on the number of cases in which an irregular migrant’s access to justice had in fact been interfered with; that it was clear on the evidence that almost all decisions material to removal made in respect of applications made by an irregular migrant following service of notice of the removal window were made after the notice period had expired, so that any challenge to such a decision could only be made within the window period itself and thus while the migrant was at immediate risk of removal or might even already have been removed; that, furthermore, an irregular migrant who unsuccessfully applied under the policy for the window to be deferred, extended, suspended or cancelled, and was refused within the the removal window, as would almost always be the case, would be at immediate risk of removal without having had an opportunity of challenging that refusal in a claim for judicial review before a court or tribunal; that it followed that the policy incorporated an unacceptable risk of interference with the right of access to justice by exposing a category of irregular migrants to the risk of removal without any proper opportunity to challenge a relevant decision before a court or tribunal; that it was no answer to point to the availability of an out-of-country appeal since the difficulties with such challenges were well known and, in circumstances where removal might subject the migrant to gross ill-treatment, the consequences of an unlawful removal might be grave, and irremediable after the event; and that, accordingly, the policy was unlawful in so far as it gave rise to a real risk of preventing access to justice (post, paras 91–98, 117, 121, 125–131, 140–148, 165–167, 168, 170, 172, 193, 196, 200, 202–203).
The following cases are referred to in the judgments:
Ahsan v Secretary of State for the Home Department
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corpn Ltd [
Čonka v Belgium (Application No 51564/99) (
De Souza Ribeiro v France (Application No 22689/07) (
Hunter v Chief Constable of the West Midlands Police [
Johnson v Gore Wood & Co [
Kiarie v Secretary of State for the Home Department
MSS v Belgium and Greece (Application No 30696/09) (
R v Lord Chancellor, Ex p Witham [
R v Secretary of State for the Home Department, Ex p Onibiyo [
R (Anufrijeva) v Secretary of State for the Home Department
R (BA (Nigeria)) v Secretary of State for the Home Department
R (BF (Eritrea)) v Secretary of State for the Home Department
R (Bibi) v Secretary of State for the Home Department
R (CPRE Kent) v Dover District Council
R (Citizens UK) v Secretary of State for the Home Department
R (Collaku) v Secretary of State for the Home Department
R (Daly) v Secretary of State for the Home Department
R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)
R (European Roma Rights Centre) v Immigration Officer at Prague Airport
R (Hamid) v Secretary of State for the Home Department
R (Hillingdon London Borough Council) v Lord Chancellor
R (Howard League for Penal Reform) v Lord Chancellor
R (Justice for Health Ltd) v Secretary of State for Health
R (Karas) v Secretary of State for the Home Department
R (Madan) v Secretary of State for the Home Department
R (Medical Justice) v Secretary of State for the Home Department
R (Refugee Legal Centre) v Secretary of State for the Home Department
R (Robinson) v Secretary of State for the Home Department
R (SB (Afghanistan)) v Secretary of State for the Home Department (Practice Note)
R (Tabbakh) v Staffordshire and West Midlands Probation Trust
R (UNISON) v Lord Chancellor (Nos 1 and 2)
R (Woolcock) v Secretary of State for Communities and Local Government
The following additional cases were cited in argument:
Chester v Bateson [
City of London v Wood...
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