Michel, R (on the application of) v Secretary of State for the Home Department

Removal arrangements may unlawfully impede access to legal advice where their timing and conditions make access to the courts practically difficult, even without an intention to obstruct. The court must nevertheless assess the whole context, including whether notice of removal was given and whether the destination state provides an effective alternative setting for the claim.

Article 8 requires a proportionality assessment. Relevant factors include the strength of the person’s connections, obstacles to family life elsewhere, immigration-control and public-order considerations, and whether family life was formed when its precarious immigration status was known. A near miss of an immigration concession does not itself create an Article 8 right.

The claimants, a Sri Lankan family, sought judicial review of their removal from the United Kingdom to Germany under arrangements made for Germany to consider their asylum claim. They alleged deliberate obstruction of access to legal advice, breach of Article 8 of the European Convention on Human Rights, breach of a county court prohibited-steps order, and breach of a concession policy.

The family had been removed early in the morning on the day of their flight. The central issues were whether the removal arrangements unlawfully obstructed access to justice, whether removal was disproportionate under Article 8, and whether the concession or county court order prevented removal.

1. Access to justice. The combination of a 2.00 am arrest, restrictions on telephone use and same-day removal made it difficult to obtain legal advice before departure. Dawn removals have been judicially criticised because they may prevent access to proper legal advice. Intention to impede access is unnecessary if the practical effect is foreseeable. However, the Secretary of State’s position was materially qualified because notice had been sent to the solicitors then recorded as representatives, and neither the claimants nor those solicitors had notified the Secretary of State that the representation had ended.
2. The case was materially different from removal to a country in which persecution was alleged. Germany’s obligations under the Refugee Convention were similar to those of the United Kingdom, and removal did not prevent the claimants from pursuing their claim to remain in the United Kingdom. The evidence did not establish that papers or reasons for detention had been withheld. The claim of deliberate obstruction of access to justice therefore failed.
3. Article 8. Removal of a person with private or family-life connections formed during unauthorised residence requires proportionality assessment. Relevant considerations include the strength of connections, insurmountable obstacles to family life elsewhere, immigration-control and public-order factors, and whether family life was formed when the precarious immigration status was known. In that situation, removal will infringe Article 8 only in the most exceptional circumstances.
4. The family’s seven-year concession did not materially alter the Article 8 analysis. The children had lived in the United Kingdom for six years and ten months, and proximity to the concession threshold did not create a right to remain. The claimants’ circumstances were not sufficiently exceptional.
5. The prohibited-steps order was directed to Mrs Michel, not the Secretary of State, and its purpose was not infringed by the family’s removal. The concession ground was not established. The judicial review applications were refused and the claim dismissed, subject to detailed Community Legal Service funding assessment of the claimants’ costs.

This was a first-instance judicial review in the Administrative Court. The applications were refused.