Medical Justice, R (On the Application Of) v Secretary of State for the Home Department

A public-interest challenge to the removal notice window policy failed. A policy is unlawful for inherent unfairness only where the risk of unfairness arises from the system itself, rather than from isolated mistakes. The court must assess the full run of cases and ask whether the system can react appropriately to ensure fairness.

Access to justice is fundamental, but it does not confer an unlimited right to challenge removal immediately before it occurs. Reasonable time limits and a removal window may be lawful where supported by safeguards, including deferral, access to legal advice, consideration of fresh claims and judicial review. The policy’s 72-hour and five-working-day periods were not shown to create a systemic denial of access to justice.

Medical Justice, a public-interest claimant, challenged the Secretary of State’s removal notice window policy contained in the Judicial Review and Injunctions guidance. The policy generally notified a person of liability to removal and provided a period of 72 hours, seven calendar days or five working days before a removal window opened. Removal could then take place during the window without further notice.

The claimant alleged that the policy was ultra vires, irrational, contrary to Article 27 of the Dublin III Regulation, contrary to Article 39 of the Procedures Directive, and incompatible with Articles 3 and 8 of the ECHR. The central issues were whether the policy inherently impeded access to justice and whether its safeguards and notice periods complied with domestic, EU and Convention obligations.

1. Claim dismissed. All five grounds failed. The policy was not ultra vires, irrational or incompatible with the asserted domestic, EU or Convention rights.
2. The governing question in a public-interest challenge was whether unfairness was inherent in the system itself and whether the system had capacity to react appropriately to ensure fairness. The threshold was high. Individual caseworker errors, unlawful removals or aberrant decisions did not establish systemic unlawfulness: [2015] EWCA Civ 840; [2019] EWCA 872.
3. Access to justice was a constitutional right, including access to legal advice and confidential legal communication. It did not require unrestricted or indefinite access to the courts. Immigration legislation necessarily contemplated that access would diminish and ultimately cease when removal occurred. The policy was therefore to be assessed in context, balancing effective immigration control with a fair opportunity to raise grounds against removal.
4. The court followed the reasoning of the Upper Tribunal in FB, [2018] UKUT 428 (IAC). Notification of liability to removal was sufficient because the later act of arranging removal did not alter the individual’s legal status. The policy’s safeguards were real, including exclusion of pending protection and human-rights claims, access to legal advice and documents, deferral of the removal window, consideration of fresh claims and judicial review.
5. The evidence, including the case studies and statistics, did not establish a legally significant pattern of denial of access to justice. It instead showed that the system could correct errors and respond to individual circumstances. The 72-hour period and the five-working-day Dublin and certified-case period were not shown to be inherently inadequate.
6. The Dublin III and Procedures Directive challenges added nothing capable of producing a different result. The five-working-day period, together with the relevant safeguards and judicial review, was sufficient on the evidence. The ECHR grounds likewise failed because the policy’s safeguards reduced the risk of unfairness to an acceptable minimum.
7. The Secretary of State was required to clarify the operation of the five-day notice requirement following a further certification decision, but that ambiguity did not invalidate the policy as a whole.

First-instance judicial review in the Administrative Court. The judgment records that an appeal in FB, [2018] UKUT 428 (IAC), was pending before the Court of Appeal, but this judgment was not itself an appeal.