The term ‘dependant’ is defined as someone who depends on you financially (i.e. for money and accommodation). A dependant can be your husband, wife, partner, child, parent, or grandparent. Please note that this list is not exclusive, and it is possible for others, for example your siblings, to be classified as ‘dependants’.

As a dependant, you can apply to join your relative in the UK. The type of leave (i.e. limited or indefinite) you can apply for will depend upon the status of your relative within the UK:

• If you are a parent, grandparent, or other dependant relative of a “settled relative”, i.e. a British citizen or a person settled in the UK, you can apply for indefinite leave to remain, i.e. permission to settle permanently in the UK with them.

• If you are the partner or a dependent child under the age of 18 of a migrant who is in or entering the UK under either most categories of the Points Based System or most work categories outside of the Points Based System, you can apply for a visa to join them whilst they are in the UK.

You must apply for this extension to your visa before your current visa expires. If you are successful in your application for FLR, your passport will be stamped accordingly to confirm the extension to your visa to remain in the UK for a further limited time.

Please note, however, that your ability to apply for FLR is dependent upon your current immigration category. For example, if you are in the UK under the Tier 5 Youth Mobility Scheme, you will be unable to extend your stay further.

It may be possible to extend your stay in the UK by switching into a different immigration category. So, for example, if you are present in the UK as a Tier 4 student, it is possible for you to extend your stay by applying for a Tier 2 (General) work visa, hence switching between immigration categories. This, of course, is subject to you meeting the eligibility requirements for the new visa.

How FLR differs from ILR…

FLR only extends your permission to stay in the UK for a specific, fixed period. However, indefinite leave to remain (ILR), also known as ‘settlement’, extends your permission to remain in the UK without any time restrictions on your length of stay.

Headlines

Damien Green reaffirmed the creation of a “sustainable, selective immigration system” that encourages the “brightest and best to come to the UK”.

The UK Border Agency reported that an airline crew member has been arrested for attempting to smuggle in dozens of counterfeit passports and fake passport materials under his clothes.

Best of the Blog

At Home …

No deportation without representation: Henry gave this week’s office talk about how those who make unsuccessful visa applications cannot now be deported without the opportunity to contact a lawyer who is able to prepare a challenge.

The importance of being truthful: The Court of Appeal highlights just how important being truthful and including all relevant information is vital to the success of your immigration application.

Compromise Agreements: we explain what they are, their effects and benefits.

Sign by Direction: When signing a will at the direction of the testator, there must be some positive instruction; the testator being passive is not enough.

… And Abroad

Law Society Gazette: We discuss how 2012 is going to be a good year for immigration practitioners.

On the Fringes

How Ironic…

Hacking network ‘Anonymous’ has released a tape which apparently is a recording of a conversation between the FBI and Scotland Yard discussing efforts against, yep you guessed it, hacking… To make the situation even more embarrassing, the conversation discusses the tracking of Anonymous and other hacking groups, dates of planned arrests and details of evidence held by police.

Speedy Resignation

The Energy Secretary, Chris Huhne, in keeping with his apparent speedy nature, has resigned after being informed that he is to be charged with perverting the course of justice over a 2003 speeding case. It’s been reported that his now ex-wife Vicky Price, will face the same charge over the allegation that she accepted his speeding points. Mr Huhne is maintaining his innocence, but has resigned to “avoid destruction”.

Football one, telling the truth nil

The prosecution in Harry Redknapp’s (manager of Tottenham Hotspurs) trial for tax evasion has told the Court that his admission of lying to a News of the World Reporter is “extremely telling”. Redknapp denies allegations that a sum of £189,000 paid into his account was a bonus for profits on transfers while at Portsmouth FC. Redknapp said he lied to the reporter because he wanted to avoid negative stories ahead of a cup final…it’s always good to have a manager that puts his club before everything else…

The Force’s Dark Side…

It’s been reported that Gwent Police have made a substantial out-of-court settlement after stopping businessman’s Robert Whatley’s car and smashing its windows after a 17 minute pursuit for not wearing a seatbelt. A disciplinary panel cleared the two officers in question, finding their actions as justified. Gwent Police do not accept any liability, stating that the decision to settle the matter out-of-court was made on financial grounds. The lesson? Safety first, always wear your seatbelt!

What we did learn is that, in Matt Cavenagh‘s words, “ the current Conservative mindset simply misunderstands the nature of immigration, and its potential, human as well as financial.” With much of the old background music being repeated in different keys the performance was familiar; but it did give an indication of the sort of changes we can expect to hear more about over the next few months.

New Policy

In his speech on immigration policy at the think tank Policy Exchange, Mr Green said he wants to change the focus of immigration policy, introducing the principle of double-plus selectivity to change the type of immigrant that is admitted to the UK so that we only attract the “brightest and the best.” In support of this he tells us that the new policy of selection will ensure that only people who make a contribution will come to the UK. He wants to move from a points based system to a contribution based system.

All this is much the same as the government has been saying for two years; it’s all part of reducing immigration to the tens of thousands.

We know that the rules for settlement (Indefinite Leave to Remain) are going to change, but this will be announced in detail before May. The salary requirement for non-EU workers will be increased to at least £31,000 and the income requirement for a UK citizen to marry a non-EU foreigner will be £28,000.

Damian Green thinks that being “precisely selective” will avoid “importing economic dependency on the state.”

He is also going to prevent spouses and fiancées of immigrants coming here unless they speak English. As I’ve said before, other considerations aside, that is just rude.

And there are plenty of reasons to think that this is another example of why immigration policy is moving in the wrong direction.

John Jacob Astor

The nineteenth century saw mass migration from Europe to America. People from all over Eastern Europe went to America and lived lives of comfort that could not have been imagined in their native villages. When they returned home in their coats and shoes people treated them with suspicion. And America benefited as much as the migrants. The huge US economy was built on the work of immigrants.

In 1783 a young man from London, the son of a poor German father who had only ever know harsh poverty at home, used money he had saved to get a ship to America. That winter the sea froze in Chesapeake Bay and the ship was motionless for two months. During this time the young German befriended another German who had gone to America before him. He discovered that there was good trade to be had in furs.

Buying furs in America and selling them in London could make good money. And the amount of capital needed to get into the trade was minimal; with just a basket of cakes enough furs could be brought at the wharf to make a profit form a New York furrier.

On arrival in the city the German boy went to work as apprentice to one Mr Browne, where he learnt the fur trade.  In 1786 he was in a position to set up his own shop. He went on to become one of the richest men in America, saying in his old age, “the first hundred thousand dollars – that was hard to get; but afterward it was easy to make more.”

He was John Jacob Astor, one of the wealthiest men who ever lived. He created wealth and jobs and built a huge trading empire; his family invested in much of America. When he arrived he was a poor German boy with a small bit of money; when he died he had been one of the most successful immigrants the world ever knew.

What a good thing Mr Green wasn’t Secretary of State in America in 1784, being “precisely selective” and letting only “the brightest and the best” to enter the country. He wouldn’t have thought twice about turning the world’s greatest businessman away.

Playing at politics

As Daniel Knowles has written, this is a dishonest discussion. The government is trying to prevent arranged marriages as much as it is trying to reduce the sheer number of immigrants. But it is not being honest about its intentions. It is the same when Damian Green says he wants to only bring in people who will benefit the country: this is political euphemism for wanting fewer foreign people to come here.

I have written on the Barrister’s Hub blog about contact theory. This is the idea that the less segregated people are the more tolerant their attitude of others is. Psychology shows us that children who are put into red and blue outfits develop exclusive behaviour. Richard Dawkins calls this, “in-group loyalty and out-group prejudice.”

And the same is true of immigration. Younger people and people who live with immigrants in their community are far more accepting of them than older people who have little contact with immigrants. This is bourne out in figures from the Migration Observatory.

Immigration breeds tolerance: if immigration is a social problem, it is one that will resolve itself. And there are, as we have written at the Adam Smith Institute, many economic benefits of immigration: GDP increases, wages go up, productivity is better, jobs are created as much as they are lost; and as Jonathan Portes shows, immigrants are net contributors to public services not net users.

Even the Migration Advisory Commission, which tells the government more or less what it wants to hear, contrary to most economic opinion, agrees that reducing immigration will be bad for the economy.

We are reducing the number of opportunities for students and workers to come here at the same time as Australia and Spain are liberalising. What inherent benefits do we have to attract the best immigrants; we are making it harder for them to stay after they study, harder to bring their families, harder to renew their visas.

We are introducing more costs, more time, more red tape to businesses who want to employ foreign workers at a  time when Europe has one of the least competitive labour markets in the world.

Damian Green talks about the economic benefits, but he means protecting native jobs, not benefiting the economy. And there is no guarantee that the same jobs will be available to natives. We have different skill sets, different labour skills; it is improbable that someone like Pret, who mainly employer European migrants, will quickly transfer to native workers for the same work without losing some of those jobs along the way.

How can we benefit from immigration?

Immigrants are not the problem the government likes to suggest they are. We all benefit, economically and socially, from migration to this country. Limiting immigration means limiting those benefits. Why would a successful businessman whose wife doesn’t speak English want to come here? Why would an ambitious student want to bring their skills (and money) here if the opportunities to stay afterwards are so limited?

We can benefit from immigration by accepting immigration.

The right to liberty

The removal of the family was illegal. It did not comply with the relevant rules; most obviously, the family was not notified that it was going to be removed. It was not conceded by the Home Secretary (the incumbent has changed four times since 2006 – John Reid, Jacqui Smith, Alan Johnson, Theresa May) that this was the case until “a very late point in these proceedings”.

In fact, it was five years after the family started proceedings in the courts that the Home Office conceded that it had been illegal to remove them in that manner.

The family was successful in claiming basic, aggravated, and special damages. They also obtained an order from the judge that the Home Secretary is to allow them to return to the UK; once returned they will then be able to make an application to remain here.

As the facts of the case will show the opening words of Cranston J are not too harsh:

This case does not reflect well on either the conduct of the Secretary of State (or at least those for whom she is responsible) or on the administration of justice … As regards the administration of justice the case can be characterised as having, at the very least, an unfortunate procedural history.

The court is right to point to the bad reflection this gives of the Home Secretary. Whether you believe that Human Rights are an extendable part of a social democracy, or the conservative codification of civil liberties that act merely as a hedge on government intrusion, this case will be one that offends your beliefs. The right to liberty has a long history from King John through the Petition of Right, the American Constitution, Habeas Corpus, and now the Human Rights Act.

And the judiciary are famous upholders of the rights of the British people not to be detained or unlawfully interfered with by the government.

In Entick v Carrington the government went to a printer’s house with a warrant that had no basis in law. Entick was given damages for the removal of his property: the judge said that men enter into society to protect property, and the government could not interfere in that unlawfully. This case is in the tradition of that one; as John Locke said, “every man has a property in his own person.” And although this warrant was lawful, the correct procedure before deportation was not followed in any respect.

Immigration law often overlaps with constitutional issues, and this case is a great example. Immigration is an area where public morals often blur into a vague distinction about citizens and immigrants; sometimes there is a feeling that the government has different obligations to immigrants than to citizens. But when someone in within the jurisdiction of the government of the United Kingdom then they can enforce rights against that government irrespective of their citizenship status.

We don’t want the government to detain anyone unlawfully, irrespective of who they are. This is because we want to limit the government’s ability to imprison us – loosening the rules for immigrants will only loosen them for citizens too. If the government was allowed to deported immigrants without following due process it would not be long before they would detain citizens without due process. Cases like this are fundamental to liberty.

Damages of £31,000 and the right to return to the UK, is a just outcome. As the facts will show, this is an appalling case from the perspective of individual liberty and the conduct of the government.

Facts

1959 – M, the claimant, is born in Sri Lanka

1987 – M marries the second claimant

1988 – M goes into hiding in Sri Lanka (he is a Tamil, and there was a civil war); son born

1993 – daughter born

Feb 1995 – M arrested

Jun 1995 – family bribes way out of country

28th Jun 1995 – family arrives in Germany, applied for asylum

Nov 1996 – asylum refused

1997 – second daughter born

10th Mar 1999 – arrive in UK

Mar 1999 – temporary admission granted

21st Jun 1999 – Home Secretary decides to return family to Germany

Jun 1999 – family starts living in Edgware; Germany accepts responsibility for family under Dublin Convention

17th Jul 1999 – removal directions set; cancelled when Judicial Review proceedings brought

2001 – further temporary admission with condition to attend an interview; mother’s mental health causes her to be admitted to a mental health unit

17th Nov 2001 – claim recertified by Home Secretary

Jan 2002 – medical reports requested

Feb 2002 – Judicial Review withdrawn

2002 – 2005 – nothing is done to remove the family, they receive asylum support

Jan 2004 – mother re-admitted to hospital

2005 – Home Secretary announced one-off concession for families who claimed asylum before Oct 2000; M is refused on grounds that Germany is responsible for his asylum claim

Mar 2005 – mother discharged from hospital

Nov 2005 – Home Secretary requests medical reports

Dec 2005 – Article 3 claim refused; letters regarding this reached M when he was deported.

Dec 2005 – decision to deport family to Germany

Courts and Judgements

Permission to apply for judicial review was given in early 2007, and at a hearing later that year it was accepted that the letters from December 2005 had never been served. The judicial review was heard in 2008; but then the judge fell ill, and judgement was delayed by one year until August 2009.

In the court of appeal it was agreed that the judge had misunderstood the factual matrix of the case, and it was remitted to the Administrative Court.

Access to Justice

In a letter of 18th January 2011 the Home Secretary accepted that the removal had been unlawful because it had denied access to justice. This was dealt with in detail in the more recent case of Queen (on the application of Medical Justice) v SSHD. 

This case

This case was about two simple things:

1. whether the family could be returned to the UK;
2. damages.

Return to the UK

Although there is an absence of case law on the point the judge decided that he should use his discretion to order the Home Secretary to return the family to the UK. The conduct of the Home Office was the principal reason, there were two parts to this:

1. Home Secretary’s conduct leading up to the removal in 2006. This includes: the failure to serve the letter in December 2005; the lack of a pastoral visit prior to deportation; the lack of access to legal advice.
2. Home Secretary’s conduct in this litigation. First there was the delay in accepting that the December 2005 had not been sent; then there was the delay in conceding the unlawfulness of the detention.

Damages

Following the dicta of Lord Woolf in Thompson the court decided that basic damages should be awarded at £2,500 for the father and son, and £3,000 for the mother and daughter. These are calculated on a sliding scale over the period of time: the tariff is approximately £3,000 for the first hour. Taking inflation into account, that is £4,600 in today’s money. The first hour of deprivation of liberty is worth £500.

Aggravated damages are awarded for humiliating circumstances. In this case the hour of night, and manner of conduct, made the detention especially traumatic – especially for the mother. The father and son received a further £2,000 and the mother and daughter another £3,000.

Special damages are for quantifiable monetary loss. The manner of removal meant that the claimant had lost property left in the house to the value of £10,000. All of that was awarded in special damages.

The Facts

The appellant is an Iraqi Kurdish woman. She arrived in Belgium and claimed asylum on 9 October 2007, giving the authorities a false name and pretending that she was an adult and that her adult brother, who was with her, was a minor. She and her brother were placed in an accommodation centre in Antwerp.

During her stay there, the appellant began a relationship with an African man by whom she fell pregnant. She later had an abortion. Some Iraqi men at the centre found out about the relationship and forced her to sleep with them by threatening to tell her brother. The appellant’s brother eventually learned of the relationship and abortion and beat her several times. She reported an incident to the police where her brother’s friends beat her.

The appellant and her brother were able to move to Wargem in Belgium. Eventually, the appellant fled to Calais, following threats from her brother and a fear of sexual abuse at the accommodation.

There the appellant found a smuggler, Omar, who agreed to bring her to the UK. She told him everything that had happened in Belgium, including about her pregnancy, in the hope that he would feel sorry for her and help her. However, she did not have enough money to pay him. Omar told the appellant that she would have to sleep with him if he was to help her.

Initially she refused to sleep with him but the following day she returned and did so in order to seek his help with getting to the UK. Omar also made the appellant sleep with his Albanian associates. If she refused, he would beat her. Whilst in Calais, the appellant claimed that she was picked up several times by police, but they would always just let her go.

The appellant was brought into the UK on a lorry. She was dropped outside the UK Border Agency’s premises in Croydon whereby she proceeded to make her claim for asylum.

It has been established that the appellant gave false representations to the authorities in the United Kingdom. She omitted her 18 month stay and asylum claims in Belgium, but she gave “a positive and detailed account of her travels and pregnancy which was wholly false.”

This case concerns an appeal against the decision of the Competent Authority and the Home Secretary to find there were no reasonable grounds for believing that the appellant was a victim of trafficking and that her claim for asylum was clearly unfounded.

The Law

The Trafficking Convention imposes a number of obligations to those countries which are a part of it. It states that the identification of a person as a victim of trafficking provides no automatic right to remain on a long term basis in the UK.

Broadly speaking, ‘trafficking’ in human beings is the transportation by means of a threat or the use of force for the purpose of exploitation (e.g. prostitution, slavery etc).

The European Convention on Human Rights (ECHR) imposes further obligations on Member States to comply with to ensure the rights of individuals are upheld.

Decision by the Competent Authority

On 2 June 2011, the Competent Authority wrote to the appellant’s representatives informing them that it had been decided that there were no reasonable grounds for believing that she was a victim of trafficking on the basis that:

1. The appellant could not be relied upon to provide a truthful and accurate account of events.
2. There was a delay in raising the trafficking allegation. The appellant had chosen not to raise it at subsequent interviews with UK authorities. Further the appellant alleged that she had been repeatedly attacked and abused in Belgium, but she apparently only reported one of these attacks to the Belgian authorities, despite being prepared to make a second asylum claim there.
3. The credibility of the appellant’s account of her time in France was doubted. It was noted that it was unlikely that a young woman with injuries, who had been picked up by the French police on several occasions amongst potential illegal immigrants, would simply have been released by them. Furthermore, it was unlikely that she would not have sought their assistance.
4. Although accepting that the appellant could be a vulnerable young woman, it was observed that this did not mean that she was trafficked to the UK for the purposes of exploitation. There was no evidence to suggest that the appellant was forced into accepting Omar’s request or prevented from leaving him if she would not agree to his request. The appellant did not allege that coming to the UK was suggested by Omar. The fact that the lorry driver took her to the UK Border Agency’s office in Croydon suggests that Omar was simply a facilitator of illegal immigrants rather than an experienced trafficker of women for exploitation.

Challenge to the Competent Authority’s Decision

It was submitted on behalf of the appellant that:

1. The Competent Authority misunderstood the meaning of “reasonable grounds” for believing a person to be the victim of trafficking.
2. In situations like this, it was not unusual to have initial falsehood from a claimant because they may be reluctant to say what has happened to them.
3. The appellant had “no real and acceptable alternative” to submitting to Omar’s abuse.

Decision by the Court of Appeal

The Court accepted that the appellant’s second point only goes a very limited way, because it does nothing to the fact that the appellant gave a false story to the Belgian authorities, or explain why she did not mention it at her second interview in the UK. The risk of being overheard did not seem to have an inhibiting effect on the appellant with regards to informing Omar about what had happened in Belgium and the UK authorities about her pregnancy etc.

The fact remained that the appellant had provided the UK authorities with an elaborate, fabricated account of what had brought her to the UK. The Court held that the Competent Authority was justified by making the point that it was unlikely that the French police would have picked her up in the circumstances described and have simply let her go.

It was thus agreed that the Competent Authority was entitled to conclude that the appellant could not be relied upon to give a truthful account.

The Court found no evidence to support the allegation that she was transported to the UK for trafficking purposes. The appellant chose to pursue her objective of coming to the UK and ‘voluntarily’ returned to Omar to do so.

Further, the Court could find no evidence that the purpose of her transportation to the UK was that of exploitation. She was taken to the UK Border Agency’s offices in Croydon.

It was therefore concluded that the Competent Authority’s decision was not irrational, even if the appellant were regarded as credible. There was insufficient evidence to show reasonable grounds for regarding her as a victim of trafficking to the United Kingdom:

Consequently, even if the Competent Authority had regarded the appellant as credible – and it was entitled not to – its decision that there were not reasonable grounds to believe her to be a victim of trafficking cannot be impugned. It was one which it was entitled to make.

Decision by the Home Secretary

The Home Secretary decided that:

1. The appellant’s human rights claims were clearly unfounded and declined to exercise her discretion so as to consider the merits of the asylum claim in the UK.
2. The appellant’s account of events was not accepted for reasons largely similar to those of the Competent Authority.
3. It was noted that every effort would be made to ensure the appellant’s safety throughout the procedure if she was returned to Belgium. The appropriate documents, e.g. medical records, appellant’s statement of events, etc. would be forwarded to the Belgian authorities to consider and enable them to put in place the necessary additional arrangements for her protection and support whilst in Belgium.

Challenge to the Home Secretary’s Decision

The appellant contended that:

1. The Home Secretary’s decision was irrational, arguing that the decision turned on the appellant’s credibility, which is not a sound basis for determining that her claim was clearly unfounded.
2. The Home Secretary had accepted that the appellant may be vulnerable but there was no evidence that the number of measures outlined for her protection should she return to Belgium would be taken.

Decision by the Court of Appeal

The Court held that in the present case, it was clear that the Home Secretary did not certify the claim as ‘unfounded’ on the basis solely of a lack of credibility. The decision letter stated that “[the appellant’s] case has also been considered on the alternative basis as though her account is reliable”. However, the human rights claim was still rejected on this basis.

There is no evidence to suggest that Belgium does not meet their obligations under the ECHR and the Trafficking Convention. Neither is there any evidence that there is unwillingness on the part of Belgian authorities to provide protection for the appellant or that the Belgian system is in any way inferior to that in the United Kingdom.

Concerning the risk of trafficking, the Court held that there was no basis for believing the appellant to be at any greater risk of trafficking in Belgium than in the UK. The appellant was not trafficked from France to the UK, as her treatment did not amount to it (there was no exploitation).

She has not been a victim of trafficking in the past, so it was questioned by the Court why she should become one now if returned to Belgium.

Decision of the Court of Appeal

The appeal by the appellant was dismissed. Although the Court sympathised with the appellant, this did not constitute a ground for quashing the decisions of the Competent Authority and the Home Secretary. The decisions were held to be lawful and sound.

Conclusion

The Court of Appeal found that there is a presumption that other European Union Member States will observe their obligations under the ECHR and under the Trafficking Convention. A woman whose ambition is to get to the United Kingdom and claim asylum, which can only be accomplished by sleeping with the man who undertakes to transport her to the United Kingdom is not necessarily a victim of trafficking, as this did not constitute transportation or harbouring for the purpose of the exploitation, of prostitution, or practices similar to slavery or servitude.

This is something to keep in mind when claiming asylum in the UK. The authorities will apply the tests strictly. You must ensure that you give a truthful account of your travels and circumstances (this is true of all immigration applications).

On a side note, the Court highlighted to those dealing with applications for permission to appeal against refusals of permission to seek judicial review that they should proceed with caution before deciding to retain the substantive proceedings in the Court of Appeal. This is because it runs the risk of the Court of Appeal sitting as a court of first instance and the appellant has lost one of the possible stages of appeal.

How can you demonstrate such knowledge?

1. If you speak, to a reasonable standard, English, Scottish Gaelic, or Welsh, you will need to pass the Life in the UK Test.
2. If you do not speak English, Scottish Gaelic, or Welsh to a reasonable standard, you will need to pass the English for Speakers of Other Languages (ESOL) course in English and Citizenship.

It should be noted, however, that if you have successfully completed either the Life in the UK Test or the ESOL course when you applied for settlement, you do not need to show that you meet this requirement by undertaking the test/course again. It will be taken as satisfied from your settlement application.

Exemptions

The knowledge of language and life in the UK requirement for naturalisation applications is specified in law. It is therefore not possible to be exempted from it because, for example, you have lived in the UK for several years, or are from an English-speaking country, or are illiterate, etc.

The only grounds for exemption from this requirement are as follows:

• You are over the age of 65; or
• You have a serious mental or physical condition that will prevent you from meeting this requirement for the foreseeable future.

In the decades before the American Revolution a phrase became popular in Ireland, which would eventually be adopted by the American Revolutionaries and come to be a cliché that is fundamental to modern politics: no taxation without representation.

This case could be said to change that to: no deportation without representation.

The case was an appeal of an immigration Judicial Review that quashed a called “judicial review and injunctions” policy document as it related to Port cases. The effect of this is that people who make unsuccessful visa applications cannot be deported without the opportunity to contact a lawyer who is able to prepare a challenge. The policy allowed deportation to be speeded up in some circumstances and this prevented access to a lawyer.

The case was not brought by an individual but by “a charity, which facilitates the provision of independent medical advice and representation to those detained in immigration removal centres as well as conducting research into issues affecting those in immigration detention.”

Access to a lawyer

As the UK Human Rights blog explains, the appeal was based on common law rights, not human rights:

The main ground of appeal was based on the common law right of access to court, established in  Raymond v Honey [1983 1 AC.1, 13] and a series of pre Human Rights cases such as R v Secretary of State for the Home Department, Ex parte Leech [1994] QB 198, and R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 at 621[26].

The Policy

The policy “judicial review and injunctions” sets out procedure for when removal directions are set:

A minimum of 72 hours (including at least 2 working days) must generally be allowed between informing a person of their removal directions and the removal itself. The last 24 hours of this period must include a working day. There are occasions where this will not apply. (see section 3 of this guidance) which you should consider before setting removal directions.

The exceptions to this include:

• Certain medically documented cases;
• Certain cases involving children;
• Certain cases where swift removal is required because of the best interests of another;
• Certain cases where swift removal is required to maintain order in removal centres;
• Where the removee consents to early removal;
• Port cases where removal occurs within 7 days of refusal

When one of these exceptions occurs the policy lists safeguards that must be applied:

1. You must let the legal representatives know by fax as soon as the removee is told and where possible bring the matter to the attention of the legal representatives.
2. If asked, you must allow the individual to speak to their legal representatives. This may involve providing the removee with a mobile telephone.
3. Where possible you must schedule the removal for a working day, during office hours.
4. Where you provide the removee with less than the standard notification of removal you should nonetheless provide as much notice as possible.
5. The application of an exception should where possible only delay service of the removal directions. If possible it should not delay service of a decision to refuse any immigration application or further submission.
6. You must obtain written authority at Deputy Director level before applying any of these exceptions (other than in Port cases) and send details to the Litigation Management Unit. Where removees are held within an Immigration Removals Centre you should obtain authority from a Deputy Director from within detention services.

“This list of safeguards is not definitive. It may be appropriate to build in other safeguards on a case by case basis to ensure that removees have effective access to the courts.”

High Court

Silber J found the policy unlawful because it abrogated the constitutional right of access to justice. And this “was acknowledged by the Secretary of State in the 2007 policy document which stated that,

we need to ensure that persons, subject to removal enforced removals have sufficient time between the notification of the [removal directions] and the date/time of removal to seek legal advice and/or to apply for [judicial review].

He also said the exceptions do not take account of the need to access the courts because they allow the Home Secretary to depart from the 72hr rule. The short periods between notice and removal often preclude lawyers from being able to help.

Grounds of Appeal

The Home Secretary contested that decision on two grounds:

1. Silber J had impermissibly extended the right of access to courts; said it would have significant implications for provision of legal services and public funding for that.
2. Judge should have applied case of Refugee Legal Centre, and asked whether there was a proven risk of injustice that inhered in the system, rather than in one decision. SSHD submitted that judge actually asked was whether it was possible that there could be an unlawful removal under the policy.

First Ground

The Home Secretary made submissions that the judge had said that legal advice must have been obtained if access to the courts was not to be abrogated; but read in context the passage highlighted to support this show that the judge was concerned with the availability of legal advice and assistance only insofar as that matter had a bearing on the time that was needed to obtain effective legal advice and assistance.

Silber J was concerned with the practicalities of obtaining that advice in sufficient time for it to be effective. 

The Court of Appeal said this argument was an Aunt Sally, based on a misunderstanding of what the judge said: his emphasis was on inability to obtain advice in the time available. It was not about access generally, but in relation to 72hr rule and the exceptions.

Second Ground

The Court of Appeal held that Silber J did set out the precedent of Refugee Law Centre and did follow it. He found on the facts that a period of notice of less than 72 hrs was inadequate, and there was no challenge to that finding of fact. Based on that conclusion, they said it was not surprising that he concluded there was an inherent risk of injustice in the system that removed certain people on less than 72hrs.

Having identified this risk the judge examined if there any safeguards against interference with access to justice by looking at the safeguards listed earlier.

He said:

It is clear that the standard 72 hour minimum time frame was as Ms Homer explained a result of the obligation “to balance the need to ensure proper access to court with the public interest in establishing a robust removal process that makes sufficient use of limited detention facilities“. There is no such balance in 2010 exceptions of providing a minimum period of notice built into the safeguards, nor are there any provisions precluding removal if the person subject to removal could not obtain access to any lawyer or to legal advice in the period between service of the removal instructions and actual removal.

He made four points about the provisions:

1. They contain no obligation to ensure that those being removed have effective access to court.
2. No instructions are given to UKBA employees about how provisions are to be used: no info about steps to be taken to ensure access to a lawyer.
3. They give no explanation about how the exceptions work when the person about to be removed either has no lawyer currently acting for them or has a lawyer who has closed the file and who does not have ready access to the crucial papers.
4. The crucial limitation is that it is not stated or implied that removal directions should be deferred if person has between receiving direction and time of  removal been unable to obtain legal advice in spite of exercising best efforts, or could not have conceivably got advice in the time.

As a final point, the Court of Appeal said  that current policy says:

This list of safeguards is not definitive. It may be appropriate to build in other safeguards on a case by case basis to ensure that removees have effective access to the courts.

And ought to say something like:

You must provide standard notification in any case where a shorter period of notification would prevent the removee from having effective access to the court.