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

The common law right of access to the courts requires a person facing removal to have a reasonable opportunity to obtain effective legal advice and, where appropriate, challenge the removal before it occurs. It does not guarantee that legal advice will actually be obtained or require the state to fund it.

A removal policy is unlawful where its abridged notice periods create a very high systemic risk of preventing effective access to the courts. Discretionary language permitting additional safeguards does not cure that defect unless the policy imposes an effective obligation to preserve access. A consent-based exception remains unlawful where the limited timescale may prevent informed consent from being verified or challenged.

The Secretary of State appealed against Silber J's decision in the Administrative Court, [2010] EWHC 1925 (Admin), quashing section 3 of a removal policy except insofar as it applied to Port cases. The policy permitted removal on less than the standard minimum notice of 72 hours in specified categories.

The appeal concerned whether the judge had enlarged the common law right of access to the courts by requiring legal advice, whether he had applied the correct test for systemic unfairness, and whether the relevant equality duties had been discharged. An additional ground concerned the exception for a removee who consented to early removal.

1. Appeal dismissed unanimously. The judge had not enlarged the common law right of access to the courts or established a right to receive legal advice. He had addressed whether the shortened timescale gave a person a reasonable opportunity to obtain effective advice and, where appropriate, challenge the removal before it occurred. Advice was ineffective if the timescale prevented a lawyer from taking instructions and bringing a timely challenge. The judge had expressly left the standard 72-hour minimum notice period undisturbed (Sullivan LJ at [18]–[24]; Maurice Kay LJ and Lord Neuberger MR agreeing).

2. The judge had correctly applied the systemic unfairness approach in R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481. His unchallenged factual findings established a very high risk of injustice inherent in the system of abridged notice, rather than a risk confined to aberrant decisions. He also assessed the safeguards cumulatively and properly found them inadequate (at [25]–[29]).

3. The statement that further safeguards “may” be appropriate did not impose an overriding obligation to ensure effective access to the courts. Read in the context of the policy as a whole, it neither required adequate time nor required removal to be deferred when the shortened period prevented effective access. On the judge's findings, only a requirement to use standard notification whenever shorter notice would prevent access could cure the defect, but that would effectively negate the exceptions (at [30]–[35]).

4. The equality impact assessment addressed only the three new exceptions. It did not assess the two pre-existing exceptions concerning persons at risk of self-harm or suicide and unaccompanied children at risk of absconding. As there was no other evidence of compliance with section 49A of the Disability Discrimination Act 1995 or section 7(1) of the Race Relations Act 1971, the third ground also failed (at [36]–[37]).

5. The consent exception was founded on the same false premise as the other exceptions. Very short notice could prevent genuinely informed consent from being established or an invalid consent from being challenged. The judge was therefore right to quash the whole of section 3 apart from its provisions concerning Port cases (at [38]–[39]).

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1710, unanimously dismissed the Secretary of State's appeal and upheld the quashing of section 3 of the removal policy, except for the provisions concerning Port cases.
2. High Court, Administrative Court: Silber J, in [2010] EWHC 1925 (Admin), held the abridged-notice policy unlawful and quashed section 3 except insofar as it applied to Port cases. He also found non-compliance with section 49A of the Disability Discrimination Act 1995 and section 7(1) of the Race Relations Act 1971 in relation to two categories.