Challenging the Home Office’s Removal Notice Window (RNW) policy

Case name: R ((1) FB & (2) Medical Justice) v SSHD

We intervened in a challenge regarding a Home Office policy, which gave people sometimes as little as 72 hours’ notice before they can be  deported from the UK without further warning. The policy was ruled to be unlawful by the courts.

Legal issue

The legal point we were positioned to explore was whether the Home Office's Judicial Review and Injunctions (JRI) policy, also known as the ‘Removal Notice Window’ (RNW) policy, a breach of human rights?

Background

Under the RNW policy, individuals are given a short notice period of between 72 hours and 7 days - depending on whether they are held in immigration detention or living in the community - to appeal their removal from the UK. 

After the relevant notice period has expired, they can be removed at any time during a 3-month ‘removal window’ without any further warning. 

The policy affects all persons liable to removal from the UK under the three main immigration statutes.

Prior to our involvement, Medical Justice was challenging this policy, saying it was against the constitutional or common law right of access to justice.

The Independent reports that more than 40,000 people have been removed under the policy, including members of the Windrush generation, some of whom the Home Office was later ordered to bring back to Britain after it was ruled that they were not given adequate access to justice.

Why we were involved

We intervened in this case as we were concerned that the policy could breach the human rights of migrants.

Because Medical Justice is an organisation, not a person directly affected by the policy, they couldn’t raise a human rights claim.

When their claim was unsuccessful at the High Court, they appealed and their claim was brought together with a challenge by an individual who faced removal under the RNW policy.  

Those joined claims were then brought to the Court of Appeal where we intervened because we were concerned that the RNW does not provide an effective right of access to justice and was putting individuals at risk of being unlawfully removed from the UK, and in some cases potentially at risk of torture in the country they are deported to.

What we did

We first intervened last year at the High Court when Medical Justice had challenged the policy and we continued to intervene at the Court of Appeal.

What happened

The Court of Appeal ruled that the RNW policy breaches the common law right of access to justice because, in practice, the short notice periods mean that – in most cases - individuals cannot complete all the necessary steps to appeal their removal from the UK, until after a ‘removal window’ has started. This means that they may have already been removed from the UK before a court or tribunal makes a decision about their case.  

The court ruled that the RNW policy (referred to in the judgment as the JRI policy) presents “… an unacceptable risk of interference with the (common law) right of access to court by exposing a category of irregular migrants, including those who have claims on human rights and protection grounds, to the risk of removal without any proper opportunity to challenge a relevant decision in a court or tribunal (paragraph 147)”. 

And, for these reasons, it has ruled the relevant part of the policy unlawful.

Who will benefit and how

Unless it is over-turned on appeal, the judgment means the Home Office’s RNW policy is unlawful and should be changed to ensure that it gives people a realistic opportunity to appeal to the courts challenging their removal from the UK.

Date of outcome