FB (Afghanistan) & Anor, R (On the Application Of) v The Secretary of State for the Home Department

A removal-window policy is unlawful where its inherent operation creates a real risk that a person will be removed before obtaining legal advice and a proper opportunity to challenge an adverse decision. Effective access to justice must exist in practice and cannot be displaced by administrative convenience or the risk of abusive claims without clear parliamentary authority.

Advance notice of the precise date, time and mechanism of removal is not invariably required. Notice identifying a period during which removal is intended may suffice, provided the person has a realistic opportunity to challenge every material decision before removal. Discretionary deferral and post-removal proceedings do not cure a system which leaves identifiable migrants at risk of irreparable harm without such an opportunity.

The appeals concerned the Secretary of State’s policy under which an irregular migrant received a short notice period followed by a three-month removal window. During the window, removal could occur without further notice. FB appealed from the Upper Tribunal’s decision in [2018] UKUT 428 (IAC). Medical Justice appealed from Freedman J’s decision in [2019] EWHC 2391 (Admin).

The appellants contended that removal without notice of the precise date and time was inherently unlawful. They also argued that decisions on further representations, fresh claims, deferral or suspension would commonly be made during the removal window, exposing migrants to immediate removal before judicial review could be commenced.

The central questions were whether exact removal directions had to be notified and whether the policy created an inherent, unacceptable risk of preventing effective access to justice.

1. Appeals allowed on the access-to-justice ground. The policy was unlawful insofar as it gave rise to a real risk of preventing access to justice. Hickinbottom LJ delivered the leading judgment. Coulson LJ and Lord Burnett LCJ agreed.

2. There was no statutory or common-law requirement to notify an irregular migrant of the exact date, time and mechanism of removal. Section 10 of the Immigration and Asylum Act 1999 authorised removal but imposed no duty to notify the migrant of directions given to a carrier. A notice clearly stating that removal was intended within an identified window was capable of constituting effective notice of the decision to remove.

3. The common-law right of access to justice requires effective access in the real world. Where legal advice is necessary, the person must have sufficient time to obtain advice, prepare a claim and seek interim relief. That right may be restricted only by clear parliamentary authorisation. It cannot be balanced away by executive convenience, the public interest in efficient immigration control or the risk of abusive litigation.

4. A systemic challenge succeeds where a real risk of injustice inheres in the scheme itself. Conclusive statistics or proof that particular individuals were actually denied access are unnecessary. Almost all decisions on post-notice representations and requests to extend, cancel, defer or suspend removal would be made during the removal window. An adverse decision then exposed the migrant to immediate removal without a proper opportunity to challenge it.

5. The policy’s safeguards did not cure that defect. A discretion to defer was insufficient because refusal would itself usually occur during the removal window and would be challengeable only by judicial review. Whether removal happened before proceedings could be commenced was therefore arbitrary. Post-removal proceedings were also inadequate for identifiable cases in which removal itself risked immediate and irreparable harm, particularly claims under articles 2 or 3 of the ECHR or the Refugee Convention.

6. Judicial review proceedings did not automatically suspend removal. The court must decide whether interim relief is appropriate. Where an arguable return risk under articles 2 or 3 or the Refugee Convention is raised, a stay will usually be required unless the challenge can be dismissed summarily.

7. A declaration was made that Chapter 60 was unlawful insofar as it created a real risk of preventing access to justice. The Upper Tribunal’s order in FB’s case was amended to include the same declaration, although FB had not personally been denied access to justice.

1. Court of Appeal (Civil Division): Allowed both appeals on the systemic access-to-justice ground and declared the policy unlawful to the stated extent: [2020] EWCA Civ 1338.
2. High Court, Administrative Court: Freedman J dismissed Medical Justice’s systemic challenge, holding that the amended policy and its safeguards did not unlawfully restrict access to justice: [2019] EWHC 2391 (Admin).
3. Upper Tribunal (Immigration and Asylum Chamber): Held that the policy was deficient in specified respects but was not incompatible with access to justice, and dismissed FB’s judicial review subject to its declarations: [2018] UKUT 428 (IAC).