Removal from the UK: legal challenges
The UK Home Office has announced changes to the way in which it handles legal challenges in cases where people are about to be removed from the UK.
When a person has no leave to be in the UK, for example because they have entered illegally or because they have stayed longer than was permitted by the leave they were given, they may face removal from the UK. In such cases, a decision to remove them will be made. This decision can be challenged in limited circumstances, for example if the person asserts that to remove them from the UK would be a breach of their human rights.
If there is no challenge, or if a challenge fails, then the Home Office will set removal directions, saying when, and from where, a person will be removed. Historically, there have been long delays in some, although not in all, cases between challenges failing and removal directions being set, but the Home Office is trying to change this.
Once removal directions have been set, challenges to them are by judicial review. Judicial review is an application to a court to complain of an administrative decision against which there is no right of appeal. There are limits to the review by the court. Judicial review is not the same as a right of appeal. Instead, the court can look at whether the decision-maker had the legal power to make the decision, whether the decision was made in a way that was procedurally fair and whether the decision was so unreasonable that no reasonable decision-maker could have made it.
The Home Office has announced that from 12 March 2007 it will give 72 hours notice of a removal: in other words removal directions will be made at least 72 hours before a removal is due to take place. The last 24 hours will include a working day. The Home Office will only delay a removal if a person is able to produce their application to the court for judicial review (claim form) and a statement of detailed reasons ('grounds') supporting the application. The Home Office will not delay a removal just because someone says that they are going to apply for judicial review. If the court is closed then detailed grounds may be accepted, provided the claim form is filed with the court as soon as the court is open.
Applications for judicial review are made in stages. First, an application is made to the court in writing for permission to ask for judicial review of the decision. If this is refused, it is possible to go to court and argue in person that permission should be given. If permission is given, then there is a full hearing, the judicial review itself. In practice, at the moment, there is a full hearing in very few cases. The Home Office may change its decision and concede the case when a person applies for judicial review, or when a judge gives permission for judicial review.
The Administrative Court, which is part of the UK High Court and hears judicial reviews, has issued instructions (Civil Procedure Rules) on how to make an application for permission for judicial review. In particular they set out the need to supply detailed reasons with the application, or to show a good reason for not doing so. The Home Office has said that it will not delay a removal where a person has not supplied detailed reasons for the decision and the court is considering whether there is a good reason for this.
The Administrative Court instructions also require the judge refusing a written application for permission for a judicial review to indicate where the application is hopeless (where it 'has no merit'). The Home Office has said that if the written application for permission is refused and the court says that the case has no merit, it will not delay removal to give a person chance to make an application for permission in person.
The new time limits are very tight and the requirements are strict and detailed. There is no room for mistakes. It will be difficult for people who have legal representatives to meet these deadlines, and far harder for people who do not have legal representatives to do so. Time spent looking for a lawyer is time out of the 72 hours that could be spent making an application for judicial review. It is important for people to get advice on their situation, wherever possible, before removal directions are set. Then, if there is no possibility of making a successful application for judicial review, this is known in advance. If there are reasons to challenge the decision, it may be possible to try to persuade the Home Office to change the decision before removal directions are set. If the matter is likely to go to a judicial review it will be easier to do this within the time frame if legal arguments and supporting documentation have been collected. If you know that you have a problem with your immigration status, do not sit and wait for something to happen. Get advice about your situation so that you know what your options are, and have time to make a sensible, informed decision. Your delay can only make your problems worse, not better.
