“A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if— (a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave; (b) he uses deception in seeking (whether successfully or not) leave to remain; (ba) his indefinite leave to enter or remain has been revoked undersection 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be refugee); or (c) directions have been given for the removal, under this section, of a person to whose family he belongs.”
“A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.”
“For the purposes of removing a person from the United Kingdom under subsection (1)…, the Secretary of State or an immigration officer may give any such direction for the removal of the person as may be given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.”
“Removing illegal migrants is one of the main functions of immigration enforcement within the Home Office. The current process for enforcing removal can be complex, with a series of decisions having to be made in order to end the migrant’s leave and make a separate removal decision, with a further decision to set removal directions at a later date. This complexity creates an unnecessarily bureaucratic process for caseworkers and enforcement officers and leads to delays in enforcing immigration laws as the three stages attract a separate right of appeal, an opportunity for legal challenge or both. To rectify this we propose to change the primary legislation so that there will only be one decision which covers a refusal of leave (or decision to curtail leave) and all aspects of the removal process. The decision will explain to the person that they cannot stay in the UK, are liable to removal if they do not leave voluntarily and will have no further notice before it happens. We recognise that a proportion of cases may have genuine reasons which mean that removal is not appropriate. The single decision will also advise the migrant that they must tell us immediately of any reasons why they should not be removed, e.g. on the grounds of an asylum or human rights claim. Reducing the process to a single decision and placing the onus on the individual to raise any human rights issues means that migrants will not be left in limbo and must take active steps to regularise their stay or depart. Bringing human rights challenges forward will help ensure that any issues are addressed before enforcement action commences. … The aims of this policy are to: • simplify operational processes and procedures to improve the efficiency of the removals process • reduce barriers to removal while maintaining the ability for the migrant to raise human rights issues The objectives are to deliver: • simplified legislative framework for the removal of illegal migrants • a removals process which effectively balances the need to enforce immigration laws with the need to ensure that human rights issues are raised and properly considered By implementing the policy and operational changes we aim to achieve the following outcomes: • more efficient casework and operational enforcement • higher volumes of voluntary departures • reduced appeals and litigation costs, both for the Home Office and the migrant • full consideration of any human rights issues at the outset of the process.”
“353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn… and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas. 353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.”
“The date of removal had to be set after a minimum of 72 hours, to include 2 working days…, after the individual was notified that removals directions had been set, in order to allow them time to access justice.”
“It was felt that the… process of allowing 72 hours’ notice period starting from the point where an individual being given notice of removal directions led to the submission of late claims which could reasonably have been raised and considered earlier in the process and that in some cases this was being used in an attempt to frustrate or delay removal.”
“The aim of the single power [of removal in the new section 10], which as well as refusing or curtailing leave (or giving notice that an overstayer or illegal entrant had no leave) would make clear the person was liable to removal with no need for a separate decision or notice. An ongoing duty was introduced to raise any reason why they should not be removed at the earliest opportunity [i.e. the obligation in section 120(5): see paragraphs 20-21 above]. As a consequence, the practice of serving copies of removal directions, which allows claims to be withheld until removal is imminent, would be discontinued where migrants were removed under the Immigration Act.”
“A section 10 notice is served only after the caseworker has checked that there are no outstanding representations, applications or appeals”, i.e. that a notice of removal window will not be served if any representations are outstanding, even if the Secretary of State has not yet made a decision as to whether they amount to a fresh claim. That is consistent with (i) paragraph 353A of the Immigration Rules (see paragraph 22 above), and (ii) the LAR Policy (at page 28), which provides that a Form RED.0001 (which is the main form used to notify a removal window: see paragraphs 50-51 below) must not be used where the relevant person “has a pending application…”
“The notice [i.e. a notice of removal window] may not be given to a person… during the period within which an in-country appeal or an administrative review may be lodged or is pending”
“If the person makes an asylum, human rights or European Union (EU) free movement claim, involving issues of substance which have not been previously raised or considered, or is being removed by the family removal process, or is a relevant adult at risk…”
“Whether or not they are detained, individuals must be allowed a reasonable opportunity to access legal advice and have recourse to the courts. The purpose of the notice period is to enable individuals to seek legal advice. If, during the notice period, an unrepresented person is yet to instruct a legal representative you [the caseworker] must always consider deferring the removal window for an additional period. It is reasonable to expect individuals who are aware that they have not been successful in an immigration claim and/or appeal and/or that outstanding representations may be or have been rejected to act promptly in seeking legal advice. Each case for deferral must be considered on its individual merits. The key consideration is whether the person has had a reasonable opportunity to access legal advice and recourse to the courts.”
“If you do not leave the United Kingdom as required you will be liable to enforced removal to [country]”
“You will be given further notice of when you will be removed”
“You will not be removed before [date and time]. After this time, and for up to three months from the date of this notice, you may be removed without further notice”
“Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule, It is simply an application of the right of access to justice….”
“At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade…”
“… to find and instruct a lawyer who: (i) is ready to provide legal advice in the limited time available prior to removal, which might also entail ensuring that the provider of the advice would be paid; (ii) is willing and able to provide legal advice under the seal of professional privilege in the limited time available prior to removal which might also entail being able to find and locate all relevant documents; and (iii) (if appropriate) would after providing the relevant advice be ready, willing and able in the limited time available prior to removal to challenge the removal directions.”
“I refer to ‘effective’ legal advice and assistance because the mere availability of legal advice and assistance is of no practical value if the time scale for removal is so short that it does not enable a lawyer to take instructions from the person who is to be removed and, if appropriate, to challenge the lawfulness of the removal directions before they take effect.”
“On the assumption that legal advice would be available Silber J was concerned with the practicalities of obtaining that advice in sufficient time for it to be effective. Would there be a sufficient time between the service of the removal directions and the removal itself to enable a legal adviser to challenge the lawfulness of the removal directions? If the answer to that question was no, time would not be sufficient, then the… policy abrogates the right of access to the courts to challenge the lawfulness of the removal directions.”
“We accept that no system can be risk-free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself.”
“In my judgment, the question to be asked in the present context is a more straightforward one, namely whether the system established by the guidance in the policy documentation is inherently unfair by reason of a failure to provide the offender with a fair opportunity to make meaningful representations about proposed licence conditions. If it is, then the guidance itself may be found to be unlawful; but if it is not, the correct target of challenge is not the guidance but any individual decisions alleged to have been made in breach of the requirements of procedural fairness.”
“It follows from the authorities cited that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice.”
“A key consideration [on consideration of deferral] is whether the person has had a reasonable opportunity to access legal advice and recourse to the courts”
“It is declared that Chapter 60 is unlawful insofar as it gave rise to a real risk of preventing access to justice.”
“I see no reason in principle why use of modern video facilities should not provide an effective means of providing oral evidence and participation from abroad. So long as the necessary facilities are available.”