The court of appeal has quashed a Home Office policy of removing migrants from the UK without access to justice. In a unanimous decision, three judges found the policy, which allowed the forcible removal of a migrant from the UK sometimes with only hours notice and in many cases without access to lawyers, to be unlawful. More than 40,000 removals were affected by the policy, resulting in vulnerable people being put at risk. Some were recognised as having been removed unlawfully, were brought back to the UK and granted leave to remain. Wednesday’s ruling will be a blow for the home secretary, Priti Patel, who has vowed to take a tough line on removing migrants from the UK. It also comes at a time when she has been reported to be considering making some definitions of human rights law for judges rather than leaving judges to decide these legal points for themselves.
The judgment from the lord chief justice Lord Burnett, Lord Justice Hickinbottom and Lord Justice Coulson emphasises the importance of the right of access to justice under common law: “The right to access the court is an absolute and inviolable right … the right to access to the court is not a relative right to be balanced against other rights and interests.” The Home Office policy that has been quashed includes “removal windows”, whereby someone is given as little as 72 hours notice that they might be removed from the UK at some point during the subsequent three months, without any warning. The appeal court challenge was brought by the charity Medical Justice, the Public Law Project and Duncan Lewis solicitors. A Medical Justice spokesperson said: “One of our society’s most precious treasures is access to justice. Chillingly, away from the public gaze, this policy denied that fundamental right on a massive scale causing serious harm to extremely vulnerable people and risking life. It was effectively a shortcut to removal. Quashing the policy brings us back towards equal access to justice for all.” Rakesh Singh, a solicitor at the Public Law Project, said: “This is a case about access to justice, one of the fundamental values of the British constitution. The ‘removal windows’ policy shut people out of the legal process. It meant that when mistakes were made, people could not access the court to put things right, and led the Home Office to remove people with a right to be here – including a number who were caught up in the Windrush situation. “Removing people in this way caused terrible injustices and placed many individuals and families in danger and into hardship, unnecessarily and unjustly.” Raja Uruthiravinayagan of Duncan Lewis solicitors said: ‘The importance of this judgment cannot be overstated. Access to justice is a fundamental principle of rule of law. Without it, individuals will not be able to challenge unlawful decisions and hold decision-makers accountable. It protects our fundamental rights and freedoms. The delivery of justice should be impartial and non-discriminatory, regardless of who is seeking it, if it is to protect and strengthen our democracy.” A Home Office spokesperson said: “Our immigration and asylum system is fundamentally broken and we are determined to introduce a new system that is fair, firm and will expedite the removal of those who have no legitimate claim for protection.” Home Office sources said the court found that the removal windows interfered with an individual’s access to legal advice. It did not find that removal windows were unlawful. • This article was amended on 28 October 2020. An earlier version said that the policy could allow the forcible removal of a migrant from the UK within hours; this has been clarified to say the removal could be with only hours notice.