FB v The Secretary of State for the Home Department

A removal-window policy may lawfully give notice that removal can occur at any time during a defined period. Access to justice depends on the circumstances. A minimum 72-hour notice period, with the policy’s safeguards and exceptions, was a reasonable and proportionate means of reconciling access to legal advice and the statutory power of removal.

However, a policy that relies on a removal window instead of advance notice of individual removal directions must be precise. It must state what is deferred and, where the window’s commencement is deferred, give written notice of the new opening date and the window’s length. It must also provide sufficient information about the proposed place and route of removal in the initial notice.

These rolled-up judicial reviews challenged Chapter 60 of the Secretary of State’s General Instructions, which governed notices of removal windows. FB and NR had each faced removal, and the Tribunal had stayed removal. The Public Law Project intervened.

The applicants argued that a person could not lawfully be removed during a notified period without advance notice of the particular removal directions, and that a 72-hour notice period did not secure effective access to justice. Alternatively, they challenged aspects of Chapter 60 concerning deferral, information about the destination and route, and the duration of removal windows.

The central issue was whether the removal-window policy was compatible with access to justice and, if so, whether its detailed terms were sufficiently certain and lawful.

1. The judicial reviews succeeded in part. The Tribunal held that a removal-window policy was lawful in principle and that Chapter 60’s 72-hour notice period, subject to its safeguards and exceptions, was a reasonable and proportionate response to the need for access to justice. The policy concerning same-day removal was also lawful in principle.

2. A notice on form RED.0001 was itself a notice of removal. It informed the recipient that removal could occur at any point after the notice period and during the stated window. R (Anufrijeva) v Secretary of State for the Home Department and Another [2003] UKHL 36 did not require a further, individually timed notice of removal directions. The constitutional content of access to justice is context-specific. The removal power under Immigration and Asylum Act 1999 section 10 necessarily entails that the practical opportunity to challenge removal diminishes as removal approaches.

3. The evidence did not establish that the 72-hour period operated so as to create an unlawful restriction on access to justice. The Tribunal rejected the proposed five-day minimum. Nor did the evidence show that the policy’s individual discretionary decisions, including deferral decisions, were inherently unlawful. Late further submissions under paragraph 353 of the Immigration Rules did not automatically prevent removal in every case.

4. Chapter 60 was nevertheless unlawful in two respects. First, its language about “deferral” was arbitrary because it did not identify with precision what was deferred. If the intended step was deferral of the commencement of the removal window, that had to be stated. The person and any representative also had to receive written notice stating the revised opening date and confirming the window’s length.

5. Secondly, where no further advance notice of removal directions would be given, RED.0001 had to contain the relevant information about the place and route of removal. It was insufficient for a person to learn only from unnotified directions where, within the destination country, removal would occur.

6. The Tribunal granted permission to bring judicial review but did not quash decisions concerning FB or NR, as their individual challenges were academic. It would hear the parties on relief and the form of order.

not stated in the judgment.