Published:  18th June 2019

The final hearing took place in the High Court this week (18 June) to determine the lawfulness of the Home Office Removal Notice Window (RNW) policy.

The court suspended the ‘no-warning’ practice in March this year following a challenge by Medical Justice amid fears that migrants were being denied a fair chance to put their case before being removed.

Under the RNW, individuals are given between 72 hours and 7 days notice that they can be removed without further warning at any time during the following 3 months. 

In order to challenge their removal – which could be as soon as 3 days after being given the notice – those subject to a RNW must:

  • Find an immigration lawyer
  • Make representations explaining why they should be allowed to stay in the UK
  • Wait for the Home Office to decide their application
  • If refused, find a lawyer to act in a judicial review of that refusal, and
  • In some cases it may be necessary to obtain an injunction to prevent their removal.

As reported by The Times, Rakesh Singh of the Public Law Project, representing Medical Justice, said:

“It is virtually impossible in this short notice period for people to complete all of the steps necessary to challenge their removal. This affects people who may well have the right to remain in the UK. That is manifestly unfair.

“The Home Office has been ordered to return several Public Law Project clients back to the UK after they were removed unlawfully, precisely because the RNW did not allow them the opportunity to put their case before a court. All of those individuals now have leave to remain.

“One of the reasons we have a system of justice is to ensure that public authorities make the right decisions, but the RNW denies people access to justice and allows poor Home Office decision-making to go un-checked. The consequences can be devastating, involving lengthy or permanent separation of families and people being sent to countries where their lives are at risk.” 

Medical Justice argues that the RNW policy is unlawful because:

  • It poses an unacceptable risk of interference to the constitutional right of access to justice
  • It is irrational as the policy’s stated goal of ‘raising a claim or challenge at a stage when it can properly be considered’ cannot be achieved
  • It breaches EU law protecting the right of access to the court:
    • The “Dublin III Regulation” requires individuals to have access to free legal advice and the court before they can be removed to the EU member state they first entered
    • The Procedures Directive taken with the EU Charter of Fundamental rights requires the right of access to court in a range of asylum decisions
  • It breaches the prohibition on torture or inhuman or degrading treatment or punishment (Article 3) and the right to a private and family life (Article 8) under the European Convention on Human Rights (ECHR), which also can require the right of access to the court in removal cases.

Public Law Project’s barristers are Charlotte Kilroy QC of Doughty Street Chambers and Alison Pickup, PLP’s Legal Director. The instructing solicitor is Rakesh Singh of PLP.