Medical Justice, R (on the application of) v Secretary of State for the Home Department (Rev 1)

A removal policy which permits abbreviated notice is unlawful where its operation creates an unacceptable risk, or serious possibility, that affected individuals cannot obtain effective access to justice. Access requires a genuine opportunity to find and instruct a lawyer, obtain relevant documents and, where appropriate, challenge removal before it occurs.

Safeguards must impose effective obligations. A discretion to add safeguards, without a requirement to defer removal where legal advice could not reasonably be obtained, is insufficient. A systemic challenge may succeed before individual infringements are proved.

Public authorities must discharge statutory equality duties consciously, rigorously and when formulating the policy. Later consideration which omits existing categories does not cure an earlier failure.

The claimant charity sought judicial review of section 3 of the Secretary of State’s 2010 policy on judicial review and injunctions. That section allowed less than the standard 72 hours’ notice of removal in specified cases involving self-harm, unaccompanied children, risks to others, order within removal centres and consent.

The claimant alleged that the exceptions unlawfully abrogated access to justice, were irrational, breached duties under the Race Relations Act 1971 and the Disability Discrimination Act 1995, and infringed Convention rights. Cranston J had granted interim relief suspending the policy: [2010] EWHC 1425 (Admin).

The central question was whether the policy and its safeguards reduced the systemic risk that persons receiving abbreviated notice would be unable to obtain legal advice and challenge removal to an acceptable minimum.

1. The claim succeeded and section 3 of the 2010 policy was quashed. A policy may be challenged prospectively where an unacceptable risk, or serious possibility, of injustice inheres in the system. Proof that particular individuals have already suffered a completed infringement is unnecessary. The court must examine the policy, its guidance, its safeguards and evidence of its likely practical operation.

2. The constitutional right of access to justice required a genuine opportunity, within the available time, to find a lawyer who was ready and able to advise confidentially, obtain the necessary documents and, where appropriate, challenge the removal directions. The practical evidence showed formidable obstacles to doing so when notice might comprise only a few hours, substantially outside working hours. The collapse of a major advice provider intensified those difficulties.

3. The stated safeguards were inadequate. The provision that further safeguards might be appropriate imposed no obligation to secure effective access. Nor did the policy require deferral where a person could not conceivably obtain advice, or had made every reasonable effort but remained unable to do so. Informing a representative, permitting a telephone call where practicable, giving as much notice as possible and ordinarily scheduling removal during office hours did not cure those defects. The absence of meaningful monitoring also prevented the Secretary of State from showing lawful operation. There was a very high risk, if not inevitability, that access to justice would be infringed.

4. Assuming effective access to justice were preserved, the individual exception categories were not irrational. The medical, child-protection, protection-of-others and order-maintenance exceptions were discretionary, confined to documented risks and intended as measures of last resort. The consent exception was rational on the stated basis that consent was informed, interpreters were used where necessary and withdrawal of consent led to deferral.

5. The statutory equality duties had not been discharged for the self-harm and unaccompanied-child categories. Those categories were not assessed when introduced in 2007, and the 2010 assessment addressed only the newly added categories. The failures under the Disability Discrimination Act 1995 and Race Relations Act 1971 supplied an additional basis for quashing those parts of the policy. The Convention claims were not pursued orally and required no determination.

6. The quashing order returned persons within the exceptions to the standard minimum 72-hour notice regime. The judgment expressed no doubt about the legality of that standard regime.

• High Court (Administrative Court): Cranston J granted interim relief preventing reliance on the challenged policy pending determination of the claim and amended the protective costs order to give reciprocal protection to the defendant: [2010] EWHC 1425 (Admin).
• Permission stage: Judge Thornton QC, sitting as a deputy High Court judge, granted permission and made a protective costs order limiting the claimant’s potential liability for the defendant’s costs.