The Court of Appeal today ruled in favour of Medical Justice in their challenge to the Home Office Judicial Review and Injunctions policy, also known as the ‘removal notice window’ policy.

Background to today’s Judgment

  • In 2019, Medical Justice applied for judicial review of the Home Office’s Judicial Review and Injunctions policy. This policy provided for removals of those without formal permission to remain in the UK. 
  • Under the policy, individuals were given a very short notice period (often as short as 72 hours), after which they could be removed from the UK without further notice during a ‘removal window’ of up to 3 months. 
  • Medical Justice argued that the policy was inconsistent with the right to access to justice.  Medical Justice’s claim was dismissed by the High Court in September 2019. 
  • Today the Court of Appeal – the Lord Chief Justice Lord Burnett, Lord Justice Hickinbottom and Lord Justice Coulson – unanimously allowed Medical Justice’s appeal. 
  • Hickinbottom LJ, who gave the main judgment, accepted Medical Justice’s case that the notice period was too short for an individual to obtain legal advice, present their claim for leave to remain, for the Secretary of State to decide that application, and, if refused, for the individual to challenge the decision by judicial review. 
  • As a result, it was inherent in the policy that negative decisions were made in the no-notice removal window when the individual could be removed without an opportunity to access the court. This created an unacceptable risk of breaches of the right of access to justice.

The Court found:

“… the Policy allows for no adequate opportunity – or, indeed, any opportunity at all – for the individual to take advice and lodge a judicial review challenging that decision before he or she is at risk of removal which arises immediately upon the adverse decision being taken and notified”

“whether an irregular migrant is removed before he or she has had an opportunity to obtain legal advice and apply to the court is a matter of pure happenchance. It is, in the legal sense, arbitrary and thus in any event unlawful.”

Rakesh Singh, a solicitor at the Public Law Project who represented Medical Justice, 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.”

Today the Court has ruled that the removal window policy does not allow individuals with a proper case to remain to be able get access to court before it is too late.

Affirming the Government’s legitimate interest in immigration control, the Judgment also contains an authoritative articulation of the importance of the right of access to justice under British 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”

Rakesh Singh said: “This judgment is a step towards a removal process that is lawful and fair.”

Background: The Removal Notice Window policy

Under the Removal Notice Window (RNW), individuals were given between 72 hours and 7 days’ notice that they could 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 had to:

  • 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 challenge that refusal, and
  • In some cases it may be necessary to obtain an injunction to prevent their removal.

Rakesh Singh said: “It was practically impossible to go through all of these steps in the time allowed. This meant that the Home Office inevitably made decisions with serious consequences during the no notice window. As a result, individuals could be denied their legal right to access the court to challenge those decisions, regardless of the strength of their case.”

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.”

Medical Justice was represented by Charlotte Kilroy QC of Blackstone Chambers, Anthony Vaughan of Doughty Street Chambers, and Alison Pickup, PLP’s Legal Director, and the instructing solicitor was Rakesh Singh of PLP.