The new published Home Office guidance (updated chapter 60) for removals : (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/753933/chapter-60-judicial-reviews-v17.0.pdf).
In light of the above, I thought it useful to re-visit removal with the above amended policy in mind and some of the problems it is likely to throw up.
As most will be aware a person can be re-detained when reporting when there is no longer a barrier to removal. This can come about where that person no longer has a right of appeal, usually said to be appeals rights exhausted; or no longer has any valid leave in the UK; or whose Judicial Review proceedings have come to an end. However, if the Home Office are acting lawfully, a lack of a barrier to removal will not in itself justify detention, they must be able to remove you in a “reasonable time period” – as per the legislative intent of immmigration detention, not because you are seen as risk to the public or at risk of absconding (no matter what the reasons for detention state). Therefore prepare yourself for this.
Once detained that unfortunate person will need to sign up to a legal surgery and hope they get a good lawyer. The guidance is pretty confusing, especially to those who are mean’t to follow it. Having had the pleasure of dealing with this situation recently myself, I recommend that once you get your paperwork, to work out whether the Home Office have given you proper notice of their decision to remove you.
How Notice of Removal is given when detained:
A) “Removal Window”:
This can be communicated both explicitly and implicitly. If you are lucky, it will state “notice of removal window”, if not look out for the following.
If you get a notice of removal or notice of “deportaion arrangements”, and it uses the following language: “you will not be removed any time before this date, but any time after this time and date you are liable to removed at any time”, then you have been given a removal window, and this is deemed adequate service on you of your removal, you and your legal representative will not be told when your actual flight is, this is something you are going to have to work out by guessing, or looking at pieces of papers being passed between different immigration officers. The rational for this guessing game, is preventing potential “security issues” in light of previous outside interference with the removal of persons which was enabled as the time and date of the flight was known. However, how, it is compatible with central tenents of the rule of law (constraints of institutional behaviour) is still difficult to reconcile – but this argument will be dealt with another day.
The use of a removal window is for people who are deemed as overstayers (under section 10 of the Immigration and Asyum Act 1999) or those subject to deportation orders, and the letter you will be given is likely to be headed “notice of liability for removal” or if you have been served with a deportation order under section 3(5) &(6) of the Immigration Act 1971 or section 32 UK Borders Act, you will usually be served with deportation decision letter along with a notice of deportation arrangements order – or if you have been served with a deportaion decision previously and not challenged it, then you are likely to just get the deportation arrangements notice only.
The first to check is to see whether you are a person who is suitable for a removal window, if you are someone who is considered an “Adult at Risk” (see Home Office guidance: (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/692486/AAR_amended_stat_guidance_web_pdf.pdF) then you cannot be served with a removal window, and to do so would be unlawful. In brief you are at risk, if you have independent medical/psychological/social worker expert evidence which confirms that you are vulnerable, or if you are pregnant; identify as transgender; or have family (parents and children) who the Home Office are looking to remove wholesale, then a removal window is not suitable.
The next step is to see whether you have been given the required notice period. (This is where it get’s a little confusing). As far as I understand it, if you are served with removal window in the above mentioned way (whilst detained) you must be given a minimum 72 hours before the removal window opens, and within in this 72 hour period, it must include 2 working days or three working days depending if removal window opens on a weekend (so that you can have what is called “effective access to the courts”. ( I recommend reading p.14 and 15 of the November 2018 Home Office guidance on injunctions and judicial reviews- click on the link above),
So that is correct – TWO WORKING DAYS (or THREE)!!
So when I said you need a good lawyer, the reason being is as follows. Say for example that you are detained on Monday and, for this purpose you attend a legal surgery on Wednesday (and get said good lawyer who is able to delegate all his/her urgent casework for the next 72 hours) and served with a notice of removal window the same day by 10am (anything after this, presumable means that that day cannot be counted as working day), the guidance states that your removal window can be opened from Saturday 10am, meaning you can be removed any time from this date and time (if the removal window start dates opens on a weekend three working days are required). If you are served the notice of removal on a Friday by 10am, that Friday will be counted as a working day and the following Monday, therefore your removal window will open on the Tuesday morning. In either scenario your lawyer is going to need to do the following In two/three working days:
– Go through all your documents/papers previous solicitor files and assess merits (assuming they have capacity to take you on in the first place!!);
– Assess whether you are eligible for legal aid, financially (if you have a partner,, this is double the work) and if there are merits in challenging your removal;
– If there are merits, get an opinion from a barrister, who believes there are merits and is able to draft grounds for the required judicial review application and application for an injunction that will be needed to stop your removal;
– Apply for legal aid funding on the hilariously “glitch” prone online CCMS legal aid website, which, even if your lawyer declares is very urgent, s/he will only get a decision on funding at the earliest, 48 hours – therefore (taking situation one above), the work your lawyer and barrister do on Wednesday and Thursday is all at risk, and so too is the £154 application fee that needs to be paid when lodging the Judicial Review application (and application for an injunction). Your lawyer will pray to the legal aid gods for funding to be approved by the Friday so that the application fee can actually be paid, and so too all the work s/he andyour barrister have done.
– Lodge a fully complied bundle on the Friday, paginated with all your relevant documents at either the Upper Tribunal or the Admin Court, and pray for your application for an injunction to be granted.
– If the injunction is not granted, to do an out of hours application, and apply for emergency funding for this application for the required £100 fee, and have the same barrister willing and able to conduct a telephone conference with the out of hours Upper Tribunal Judge or High Court Judge.
All the while, this same lawyer must also keep in good communication with his/her client, and disregard all other deadlines s/he might otherwise have, and somehow not lose their mind in the process. (**Warning – legal aid is not for the faint hearted, and if you have a moral core – prepare for it to be tested as the current system pits your morality against your mental self-preservation brought on by the obstacle course of paperwork, applications and deadlines as devised by the Legal Aid Agency and the Home Office.**)
Like I said, two/three working days!
Howeve the above guidance does make some prima facie allowance for those persons who are not represented, or who have not had adequate access to legal advice (see p.17 and 18). My understanding is that, say you are given your 72 hour notice on the Monday by 10 am and you request to attend a surgery the following Tuesday, with an appointment booked the following week, then by at all accounts the removal window will be deferred to allow for that appointment. Interestingly, the guidance allows for a the removal window to be deferred if the delay in getting legal advice is due to a change of legal representative (which is welcome pragmatism).
It is important to note that if your case is one to do with your removal to a “third country” then you must be given 5 working days not 72 hours, or if your case has been certified (and not previously subject to Judicial review on the same issue) or the decision has been certified and you are given an out of country appeal (non-suspensive appeal),
B) Notice of removal directions
This is the one we are all more familiar with, it tells you the time, date and flight number. Your lawyer will actually have a tangible date to challenge. This is usually served on the form IS.151D, and the same rules for notice to be given apply as in the removal window.
C) Limited Notice of removal
It is unclear what the difference is between this and a removal window; in either event the same notice periods apply.
How to stop removal:
If you find that the Home Office have not followed their own guidance, in terms of correctly calculating the notice period. This will only serve to cancel the removal window, and they will likely start a new removal window with the correct notice period.
If your removal is occurring during a removal window, a limited notice of removal or on a chartered flight (which could also be served via removal directions), then you will need to lodge a Judicial review and an application for an injunction.
If you are not being removed in a removal window, and a on a standard flight (i.e. not a chartered flight) then lodging a Judicial Rreview application (as long as you have not lodged a similar judicial review application within the previous 6 months) will defer your removal until the conclusion of that judicial review, if you are not able to pay the £154 fee, you will need to fill out what is known as the EX160 form (https://www.gov.uk/government/publications/apply-for-help-with-court-and-tribunal-fees).
For further details I highly recommend the the right to remain toolkit website (https://righttoremain.org.uk/toolkit/removal/).
Potential issues with the new guidance:
The first one is the two working days given to lawyers to have access to the courts, and as to whether this can be seen as having effective access to justice, bearing in mind the amount of work that that lawyer will need to do (as outlined above) in that period of time.
The second glaring one, is in the circumstances, where a person is served with a removal window, and they are on a chartered flight (known to the lawyer by virtue of his/her client being subject to an attempted removal by chartered flight previously). The guidance states that if s/he is subject to “special arrangements” they be given 5 working days notice. The issue here is clear, how can the lawyer know whether the Home Office are following their own guidance when the nature of a removal window is that the details of a potential chartered flight are withheld, and thus the lawyer is having to work to a 72 hour notice period instead of a 5 working day period and can legitamately challenge the Home Office for not adhering to their own policy and thus have the notice cancelled. Or are we supposed to infer that these two differing notice periods magically dovetail one another ((e.g. removal window notice served on Monday 10am, with windows opening on Thursday 10am, and removal on a chartered flight taking place (by our magical inference!)on Monday 10am.)) If this is the case, how is this a fit state for lawyers to work to, surely in these circumstances the time to lodge would be on the Wednesday, as we are told that our client is to be removed at anytime after this time, it cannot be expected for lawyers to assume that removal will not take place until the Monday if the flight is a chartered flight. In legal aid terms the difference between two working days and five working days is a big one.
What’s going on with Article 8 