The following heads of consideration are raised in detail below:
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Liability to non- EEA Administrative Removal
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Notice of liability to Administrative Removal- RED Notices
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Judicial Review
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Notices of removal
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Removal- the Notice Periods
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Deferral of Notice Periods
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Deferral of Removal
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Injunctions
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Rule 39 Indications from the European Court of Human Rights
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Relevant Home Office policy Guidance
(1)LIABLITY TO NON- EEA ADMINSTRATIVE REMOVAL
What is the single power of removal?
The single power of removal is set out in section 10 of the Immigration and Asylum Act 1999 as amended by the Immigration Act 2014. It outlines the different circumstances in which notice of liability to removal can be served and guidance on serving RED (Removal, Enforcement and Detention) notices.
Under section 10 of the Immigration and Asylum Act 1999 a person who requires, but does not have, leave to enter or remain in the UK is liable to removal. No removal decision is required but the person must still be notified of their liability to removal.
If a person has leave but is subject to enforcement action for breach of conditions or deception, their leave must be brought to an end to make them removable.
Removals under the European Economic Area (EEA) Regulations have not changed and forms IS.151A (EEA) and IS.151B (EEA) will continue to be used.
What are the breaches that may result in liability to administrative removal?
There are categories of immigration breaches that may result in a person becoming liable to administrative removal from the UK under section 10 of the Immigration and Asylum Act 1999 (the 1999 Act).
These include people who:
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require leave to enter or remain in the UK but do not have it (such as overstayers, illegal entrants, and those refused leave at a port of entry)
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are found to be breaching a restriction or condition of their visa to enter or remain in the UK
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seek or obtain leave by deception
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are family members of a person being removed
Who is an Overstayer?
A person who overstays their limited leave is liable to administrative removal under section 10 of the 1999 Act. When considering the applicability of section 10 removal powers it is best practice to apply the interpretation of overstaying as found in paragraph 6 (Interpretation) of the Immigration Rules:
‘‘Overstayed’ or ‘Overstaying’ means the applicant has stayed in the UK beyond the:
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time limit attached to the last period of leave granted, or
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period that his leave was extended under sections 3C or 3D of the Immigration Act 1971.
What is the result of working in breach of conditions of a visa to enter or remain in the UK?
Where a person is found to be working in breach of a restriction or prohibition on employment as set out in the conditions of their visa to enter or remain in the UK, their leave may be curtailed with immediate effect under paragraph 323(i) with reference to 322(3) of the Immigration Rules, such that they become liable to administrative removal under section 10 of the Immigration and Asylum Act 1999. The breach must be of sufficient gravity to warrant such action. There must be firm and recent evidence (normally within 6 months, but considered on a case-by-case basis) of working in breach, including at least one of the following:
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an admission by the offender of working in breach
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a statement by the employer implicating the suspect
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documentary evidence such as pay slips, the offender’s details on the pay roll, national insurance records, tax records, P45
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sight by the Immigration Officer (IO), or by a police officer who gives a statement to that effect, of the offender working, preferably on 2 or more separate occasions, or on one occasion over an extended period, or of wearing the employer’s uniform
In practice, sight only evidence will be insufficient and must be backed up by other evidence.
Where the evidence points only to a breach many months in the past, Home Office policy is that a warning must be issued and a report submitted.
Who is an Illegal Entrant?
A person is an illegal entrant and liable to be removed under schedule 2 to the Immigration Act 1971 if they entered the UK unlawfully without leave, whether knowingly or not. Entry without leave includes:
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clandestine entry
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unwitting evasion of the control
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absconding from temporary admission
Can family members of a person being removed or who has been removed also be removed?
Section 10 of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014) also provides for the removal of family members and now includes relatives beyond spouses and children. The section provides for the removal of family members as follows:
For the purposes of section 10(2) of the Immigration and Asylum Act 1999 (as amended), the following shall be regarded as members of the migrant’s family provided they are not British citizens or entitled to enter or remain in the UK by virtue of an enforceable European Union (EU) right or of any provision made under section 2(2) of the European Communities Act 1972:
(a) their partner
(b) their child, or a child living in the same household as the person being removed in circumstances where they have care of the child
(c) where the person being removed is a child their parent
(d) an adult dependent relative
Where the family member has leave to enter or remain in the UK, that leave was granted on the basis of their family life with the migrant or if they do not have leave would not qualify to remain in their own right but would be granted leave on the basis of their family life with the migrant if the migrant had leave to enter or remain.
Under section 10(6) of the Immigration and Asylum Act 1999 a notice given to a family member under subsection 10(2) invalidates any leave to enter or remain in the UK previously given to the family member.
If a family member is not encountered with the main applicant but comes to attention later, removal can take place provided the removal occurs within 8 weeks from the removal of the main applicant. After that period the family member must be treated in their own right.
Family members will be served with the RED.0001 FAM form unless they are liable for removal in their own right, for example, an overstayer when they will be served with a RED.0001 or similar form.
Is administrative removal the same as deportation?
No.
A non- EEA foreign national can be considered for deportation under the:
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UK Borders Act 2007
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1971 Immigration Act
Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:
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the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
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the period of imprisonment is 12 months or more, and
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the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
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the criminal was serving that sentence on or after 1 August 2008, and
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the criminal had not been served with a notice of decision to deport before 1 August 2008, and none of the exceptions set out in section 33 of the 2007 Act apply
If a foreign criminal does not meet the automatic deportation threshold, consideration must be given to whether deportation should be pursued under the Immigration Act 1971 because it would be conducive to the public good. Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the UK is not conducive to the public good. This gives the Secretary of State discretion to act in a way that reflects the public interest. Evidence of serious or persistent criminality must be proved to the immigration (balance of probabilities) rather than criminal (beyond reasonable doubt) standard. The full facts for why an individual is considered to be non-conducive should be weighed against the relevant factors for why deportation may be disproportionate (length of residence, ties to the UK, the UK’s obligations under the human rights and refugee conventions). Initially this will be done on the basis of the information held on the individual by the department.
The definition of a foreign criminal is set out at section 117D(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 act) and means a person who is not a British citizen, who has been convicted in the UK of an offence, and who has been sentenced to a period of imprisonment of at least 12 months, or has been convicted of an offence that has caused serious harm, or is a persistent offender.
In summary, the relevant legal framework is as follows:
Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002 set out the correct approach to considering ECHR Article 8 claims. Part 5A was inserted by section 19 of the Immigration Act 2014 which came into force on 28 July 2014. In Part 5A:
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section 117A sets out how the Article 8 provisions are to be applied
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section 117B sets out Parliament’s view of the public interest in Article 8 claims made by any foreign nationals, including foreign criminals
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section 117C sets out Parliament’s view of the public interest in Article 8 claims made by foreign criminals liable to deportation
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section 117D sets out the interpretation of sections 117A to 117C
The Immigration Rules were amended on 28 July 2014. Paragraph A362 sets out that any Article 8 claim considered on or after this date, regardless of when it was made, must be considered under the amended rules.
Paragraph 398 of the Immigration Rules sets out the criminality thresholds. An Article 8 claim from a foreign criminal who has not been sentenced to at least 4 years’ imprisonment will succeed if the requirements of an exception to deportation are met. The exceptions to deportation on the basis of family life are set out at paragraph 399 of the Immigration Rules, and the exception on the basis of private life is at paragraph 399A.
An Article 8 claim from a foreign criminal who has been sentenced to at least 4 years’ imprisonment will only succeed where there are very compelling circumstances over and above the circumstances described in the exceptions to deportation at paragraphs 399 and 399A.
Paragraphs 399B and 399C set out the provisions for granting leave to remain where an Article 8 claim succeeds. There is no provision to grant leave on the basis of Article 8 to a foreign criminal outside the Immigration Rules unless the foreign criminal is an EEA national or deportation is pursued solely on the basis of an overseas conviction.
How did the Immigration Act 2014 change the legal basis for administrative removal?
The relevant breach and the applicable law is as follows:
Breach of conditions of leave:
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Paragraph 323(i)/ 322(3) of the Immigration Rules for breach of conditions.
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Paragraphs 323(i) / 322(4) of the Immigration Rules for failure to maintain or accommodate themselves or dependants without recourse to public funds
Overstays leave:
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Section 10(1) of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014).
Uses deception (successfully or not) in seeking leave to remain:
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Paragraph 323(ia) of the Immigration Rules
Family member of person liable to removal under section 10:
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Section 10(2) to (6) of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014).
Revocation of indefinite leave to remain (ILR) gained by deception:
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Section 76(2)(a) of the Nationality, Immigration and Asylum Act 2002
(2)NOTICE OF LIABLITY TO ADMINSTRATIVE REMOVAL – RED NOTICES
What does a RED Notice mean ?
A RED Notice means a Removal, Enforcement and Detention notice.
Why are RED notices used?
RED notices are used to tell an individual:
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they are liable to removal
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the country to which they will be removed
The notices also include:
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information on the consequences of being in the UK illegally
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information about any help that might be available to return home
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a section 120 notice which requires the migrant to raise with the Home Office, as soon as reasonably practicable, any grounds not previously raised as to why they should be allowed to remain in or not be removed from the UK.
What are the RED Notice types?
These are as follows:
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RED.0001 (including the RED.0001 (c) and RED.0001 FAM)
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RED.0002
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RED.0003
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RED.0004 (fresh)
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RED.0004 (extension)
What is the relevance of Section 120 notices?
A section 120 notice requires the migrant to raise with the Home Office, as soon as reasonably practicable, any grounds not previously raised as to why they should be allowed to remain in or not be removed from the UK.
The migrant has an ongoing duty to raise new grounds under section 120 of the Nationality, Immigration and Asylum Act 2002 while in the UK without leave.
They will also be reminded of their ongoing duty during any contact management and reporting events by service of a RED.0002 (reminder).
Some persons may make late human rights or protection claims that could have been made earlier. A person resisting removal may try and make a late claim in an attempt to frustrate their removal. To address this behaviour, the removal’s process requires that a section 120 notice is served in every case. This notice requires the person to make any further claim now or as soon as reasonably practicable after it arise.
For further information on 120 notices see the following Home Office Guidance: Rights of appeal
What is a Form RED.0001 used for?
Form RED.0001 is used to:
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make a decision to curtail or revoke existing leave, for example when a person with extant (not 3C) leave is found working in breach, this makes them liable to removal
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give notice that a person has no leave (such as an overstayer) and is therefore liable to removal
The Home Office Caseworker must include details of how they have come to this conclusion on the form (for example the circumstances in which they encountered the person and the details of their expired leave).
The last page of the RED.0001 includes instructions on where to send the response to the section 120 notice (the RED.0003 form).
If a person is detained, this must be filled in with the relevant National removals Command (NRC) caseworker details.
RED.0001 does not invalidate a pending application. This needs to be refused separately.
RED.0001 places the duty on the migrant to notify the Home Office of any changing circumstance or new reason for wishing to remain in the UK.
What are the further variations of the RED.0001 Notice?
There are further variations of the RED.0001:
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RED.0001 (c): this is similar to the RED.0001 but is served where the person is not detained and it is more appropriate for the migrant to be directed towards making a charged application if they wish to raise an article 8 human right application, for example where they have a settled partner or child here. Nothing in this prevents consideration of an article 8 claim without requiring a fee being paid in cases where it is deemed appropriate to detain.
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RED.0001 FAM: this form replaces the IS.151A for family members of a person subject to the RED.0001.
How does RED.001 Notice provide for the removal window notification?
The ‘Liability for Removal’ sections of the RED.0001 (and similar forms) now have 3 options as set out below:
1) ‘You will not be removed for the first seven calendar days after you receive this notice. Following the end of this seven day period, and for up to 3 months from the date of this notice, you may be removed without further notice’: this box must be ticked for people who are not detained and who therefore have a 7 day notice period in which to seek legal advice before the 3 month removal window begins.
2) ‘You will not be removed before (insert date and time). After this time, and for up to 3 months from the date of this notice, you may be removed without further notice’: this box must be ticked for people who are detained and who therefore have a minimum period of 72 hours in which to seek legal advice before the 3 month removal window begins.
3) ‘You will be given further notice about your removal’: this box must be ticked for the following:
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family cases
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people without leave who have a protection (asylum or humanitarian protection) or human rights claim or administrative review or appeal pending
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where the Home Office has evidence (beyond a self declaration) that a person is suffering from a condition listed as a risk factor in the Adults at risk policy or other condition that would result in the person being regarded as an adult at risk under that policy.
Individuals will be notified of a 3 month removal window during which they will be removable, with the exception of those who meet the criteria listed in option 3 above.
Protection or human rights claimants without leave will receive a fresh notice starting the 3 month removal window (RED.0004 (fresh)) when they are appeal rights exhausted (ARE) and they become removable.
Vulnerable groups and families must not be removed through the 3 month removal window and will receive a further notice by way of removal directions (IS.151D) or limited notice of removal (IS.151G).
RED.001 – When is this not served?
If a person encountered without leave or in breach of their conditions has a pending application, or pending appeal or administrative review, the Home Office Caseworker must not serve form RED.0001. They are required to use form Bail 201 to require them to report to the Home Office. Alternatively, if it is appropriate to detain them, serve forms IS.91 and IS.91R as well.
Where an application is still outstanding, the Caseworker must immediately contact the relevant casework team for expedition with evidence of the breach or deception if applicable. If the application is refused, notice of liability to removal will be served as a casework decision.
Where a person has already been served notice of liability to removal in a letter or casework decision (such as following an unsuccessful administrative review), a RED.0001 may be served in these circumstances but is not legally required as notice has already been given.
How can leave to enter or remain be brought to an end via RED.001 Notice?
Limited leave to enter or remain can be curtailed with immediate effect on the basis of:
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the making of false representations and/or failure to disclose material facts under paragraph 323(i) of the Immigration Rules with reference to paragraph 322(2) – (there must be dishonest intent)
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using deception in seeking (whether successfully or not) leave to remain or a variation of leave to remain under paragraph 323(ia) of the Immigration Rules
Indefinite leave to enter or remain can be revoked under section 76(2)(a) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) where that leave was obtained by deception.
Where curtailing limited leave on the basis of deception, it may be possible to rely on either paragraph 323(i) of the Immigration Rules (with reference to paragraph 322(2)), or paragraph 323(ia).
Paragraph 323(ia) requires the holder of the leave to have exercised the deception.
What is a RED.0002 Notice?
RED.0002 forms are section 120 notices and a reminder notice of the section 120 duty.
There are 3 RED.0002 notices, the first 2 forms are section 120 notices, and the third is a reminder notice of the section 120 duty:
1) RED.0002 (charged): this is used where a person is directed towards making a charged application if they wish to make an article 8 claim (for example they are not detained and there is no operational reason to waive the requirement).
2) RED.0002 (enforcement non-charged): this is used where a person is not directed towards making a charged application (for example where removals casework are preparing a case for tasking to enforcement, or where a person is detained). If necessary the Home Office caseworker can fill in a time limit for response (for example if while not detained, they were given 14 days to respond to an earlier section 120, but they are now detained and this period needs to be shortened).
3) RED.0002 (reminder): this reminds a person both of their liability to removal and their section 120 duty and may be adapted to refer to either charged or noncharged applications, this may be served at reporting events.
Reminder (RED.0002) will assist in considering the certification of any subsequent asylum and/or human rights claim under section 96 of the Nationality, Immigration and Asylum Act 2002 if the matter should have been raised earlier.
Where removal action is delayed, for example where the Home Office needs to obtain a travel document, the migrant can be reminded of the continuing need to provide details at the earliest opportunity by the service of a RED.0002.
What is a RED.0003 Notice?
This form is served with the RED.0001, for the migrant to respond to the section 120 notice contained in the RED.0001.
RED.0003 gives the migrant the means to respond when making a noncharged application, however it’s not a prescribed form and they can respond to the section 120 in any way they please.
What is a RED.0004 (fresh) Notice?
This form is served where a new 3 month removal window is being set and must only be served where there is a realistic possibility of removal within the new period.
Service of this form requires that a new 72-hour notice period is given. It must not be used to keep the window open ad infinitum, but to extend it where removal is expected within that period, for instance, where removal is being rearranged following a delay in receiving a travel document.
What is a RED.0004 (extension) Notice?
This form is served before a removal window expires, in order to extend that window by 28 days, provided that removal is expected within that period.
Where it is known that removal is unlikely to take place within 28 days the Home Office Caseworker must not serve a RED.0004, instead allow the removal window to lapse. When it then becomes known that removal is likely within a 3 month period serve a new RED.0004 (fresh).
What were the previous administrative removal Forms before the Immigration Act 2014?
The following applies to non-EEA administrative removal cases decided before the implementation of the Immigration Act 2014.
Under previous procedures in use before implementation of the Immigration Act 2014, form IS.151A gave notice that a person was an illegal entrant, overstayer or similar, an IS.151A Part 2 or an IS.151B was the removal decision:
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IS.151A: informed a person that they are an illegal entrant or an immigration offender (overstayer or worker in breach) and that they were liable for detention and removal
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IS.151A Part 2: informed a person they have been served with an IS.151A informing them of their immigration status and liability for removal:-it also stated that a decision had been taken to remove them and they may appeal the decision from outside the UK (the country they are to be removed to had to be specified on the form)
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IS.151B: informed a person a decision had been taken to remove them and their asylum/human rights claim was refused:- it informed the person that they have an in-country right of appeal (the country they are to be removed to had to be specified on the form)
Forms IS.151A, IS.151A Part 2 and IS.151B have been replaced with form RED.0001.
New notice of liability to removal may be served on any person who requires leave and does not have it (it is no longer restricted by the date of application for certain types of leave).
(3)JUDICIAL REVIEW
What is judicial review?
Judicial review (JR) is the legal process that allows a person to challenge the lawfulness of a decision, action or failure to act of a public body such as a government department.
The types of event that could be subject to JR are:
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a failure to act – such as a delay in issuing a document or making a decision
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the setting of removal directions – which usually means that the person believes their removal would infringe their rights (e.g. rights under the Refugee Convention, European Convention of Human Rights or European Community instruments)
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a refusal to accept that further submissions amount to a fresh claim
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a decision to certify a claim as clearly unfounded
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detention
An individual can therefore ask the High Court or Upper Tribunal to review the lawfulness of a decision, action or failure to act of a public body or government department. Judicial can also be used to challenge secondary legislation, the immigration rules or policy, or the compatibility of an act of Parliament with the Convention rights under the ECHR.
Judicial review can only be used where there is no avenue of appeal or where all avenues of appeal have been exhausted. It is different from a statutory appeal because the court should not normally substitute what it thinks is the ‘correct’ decision, it will only decide if the decision made was lawful.
The High Court’s procedure for judicial review is set out in part 54 of the Civil Procedure Rules Part 54 – Judicial Review & Statutory Review – Civil Procedure Rules.
The Upper Tribunal procedure for judicial review is set out in the Tribunal Procedure (First Tier Tribunal) (Immigration and Asylum Chamber) Rules October 2014 Immigration and Asylum Chamber tribunal procedure rules – Publications – Gov.uk).
The relevant links to Forms, Rules and Practice Directions in the Upper Tribunal are as follows:
Forms and further guidance (appeals and judicial reviews)
Procedure rules
Practice directions and statements (appeals and judicial reviews)
Detailed legal guidance on bringing a judicial review case in the Administrative Court is as follows:
Administrative Court Judicial Review Guide 2018
This includes guidance on:
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starting a claim
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applying for permission for judicial review
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substantive hearings
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remedies
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case management
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specific practice points
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ending a claim
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costs
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appeals
The guide also includes contact details for the court, information on forms and fees, and addresses for serving documents on government departments.
See also the full list of Administrative Court forms.
Which courts hear applications for judicial review?
The majority of immigration judicial reviews are heard by the Immigration and Asylum Chamber of the Upper Tribunal. The types of judicial reviews they hear are set out in a Practice Directions – Civil Procedure Rules from the Lord Chief Justice.
The exceptions, which will be heard in the High Court, are:
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the validity of legislation or the Immigration Rules
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the lawfulness of detention
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licensed sponsor status
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citizenship
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accommodation centres and asylum support
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previous Upper Tribunal decisions
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special Immigration Appeals Commission decisions
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statements of incompatibility under s4 of the Human Rights Act 1998
What are the types of relief that can be granted as a result of a judicial review?
If a claim for judicial review is refused permission or dismissed, then the Home Office’s decision or position remains unaffected. If the claim is allowed then the court will consider what type of relief to grant the claimant and sets this out in a court order. The types of relief that a court can grant are:
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a quashing order – ‘quashes’ a decision, which means that the decision is revoked and no longer has any legal effect and must be taken again, sometimes within a particular period
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a prohibiting order – prevents the Home Office from taking the action specified in the order, for example removal
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a mandatory order – compels the Home Office to take the action specified in the order, for example to accommodate the claimant
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a declaration – stating the legality of a decision, policy or legislative provision – this can, in the context of legislation, include a declaration of incompatibility with the Human Rights Act
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damages – the award of money to compensate for any loss caused or as punitive damages in order to punish the defendant for his unlawful action – if a separate hearing is required to decide the level of damages or compensation, the matter may be transferred to the Queen’s Bench Division of the High Court (QBD)
Even if a claim for judicial review is allowed, the court does not have to grant any form of relief at all. It will only grant the form of relief it deems appropriate.
What is The Government Legal Department ?
The Government Legal Department (GLD),formerly known as Treasury Solicitors, act as the Secretary of State for the Home Department’s (SSHD) solicitors. GLD is a non-ministerial government department providing legal services to the majority of central government departments, including the Home Office. The GLD’s Immigration litigation teams operate as the Home Office’s legal representatives in all judicial reviews, providing legal advice on the handling of that litigation and liaising with the courts as well as the claimants and their legal representatives. The GLD take instructions from litigation caseworkers on the handling of judicial review claims. They also engage and instruct counsel on behalf of the Home Office to provide advice on individual cases, and to represent the SSHD in court. The GLD charge the Home Office for the work they carry out
What is the relevance of the Pre-action protocol in judicial review cases?
A pre-action protocol letter (PAP) is a letter written to the Home Office in order to try and resolve a dispute before court proceedings are started. The purpose is to avoid the time and cost of raising a claim for judicial review. These will normally be from people who wish to challenge a decision the department has made, but they can also be about a failure to make a decision, or concerns with immigration law and policy.
A pre-action protocol letter may also be called a ’letter before claim’ or a ’letter before action’. All of these terms refer to the same thing.
The pre-action protocol sets out the steps that must be taken before commencing an application for JR. This procedure normally only applies where removal directions have not been set or removal is not imminent.
Failure to follow this protocol has legal consequences. One of the most important of these is about costs. If either party to a judicial review fails to follow the protocol they can be made to pay theirs and the other sides’ legal costs, even if they win the case.
The pre-action protocol does not always apply in urgent cases, for example where departure arrangements have been set, or a person seeks to be released from immigration detention.
In non-urgent cases, a pre-action protocol provides the Home Office with an opportunity to consider the issues raised and to provide a response in the hope that this will resolve any concerns and rectify any errors before the need to start JR proceedings.
The action that the Home Office might take in response to a pre- action protocol is as follows:
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decide that the representations made have merit and try to rectify the problem without the need of the JR process
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decide that the representations have no merit and use the opportunity to fully explain reasons for the decision and to answer any queries the claimant has made
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if it is decided that some of the claim has merit but others do not, the response must fully cover the reasons for this decision, with a full explanation of what the Home office decision maker agrees with and how they will rectify this and why they do not accept other claims
The Home Office will have 14 days to respond in full to the matters.
Where must PAP letters be sent?
All PAP letters must be served by post or email to the Litigation Operations (allocation hub). This requirement is set out in the Civil Procedure Rules.
Claimants are to complete the PAP for Judicial Review form( Pre-action protocol for judicial review) although it is not mandatory. The pro forma is not appropriate in urgent cases, for example when a person is about to be removed from the UK. The form is also not appropriate for use as a letter before claim in Private Law Claims.
The correct service addresses for postal and electronic service are:
For postal service: Litigation Operations Allocation Hub Status Park 2 4 Nobel Drive Harlington Hayes Middlesex UB3 5EY
For electronic service: UKVIPAP@homeoffice.gsi.gov.uk
Entry clearance decisions can be challenged in court by a sponsor or an applicant.
What is the judicial review process?
Paper permission stage:
If a person wants a judicial review of a decision they must first apply to the Upper Tribunal or High Court for permission. This should be done as soon as possible, but normally no longer than 3 months from the date of the decision, although the courts can decide to accept applications after that time limit.
The person who brings a claim for judicial review is known as the claimant (applicant in the Upper Tribunal) and the person against whom the judicial review is brought is the defendant (the respondent in the Upper Tribunal), normally the Secretary of State for the Home Department (‘SSHD’) but it can be an Immigration Officer or Entry Clearance Officer when their decision is being challenged.
The claimant sets out the grounds of their claim, and includes any evidence they wish to rely on and asks for permission to be granted.
Once received by the Upper Tribunal or High Court the application is ‘sealed’ by the court. This means the court stamps the application to show it has been received.
The papers must then be served on GLD who will in turn notify the Home Office in cases progressing through High Court or directly on the Home Office in Upper Tribunal cases. The Upper Tribunal Rules do not formally require service of the sealed claim form although letters issued by the Upper Tribunal do inform applicants that they must do this.
Once the grounds have been served on GLD or the Home Office, there are 21 days to file a paper response to the claim, this is known as an Acknowledgement of Service (AoS). The AoS allows the Home Office to confirm whether it accepts the claim detailed in the judicial review or whether we wish to contest the claim.
If the Home Office are contesting the claim, the AoS, will include their summary grounds of defence (SG) and any evidence the Home Office wishes to rely on as to why the claim should not be granted permission to proceed.
Once the court receives these documents a single judge will look at the papers and decide whether or not to grant permission. The test for granting permission is whether the judge thinks the claim is arguable. This is a low threshold.
If the judge does not think the claim is arguable, the judicial review will be refused permission to proceed. Both parties are then notified of this decision by means of a court order.
If permission is refused, the judge may also certify the claim as being ’totally without merit’. This is added when the judge considers the claim is completely hopeless. A ‘totally without merit’ finding stops the claimant from renewing their judicial review to an oral permission hearing, but they may appeal this decision to the Court of Appeal.
If the judge does consider the claim to be arguable, he or she will grant permission. In this circumstance, the case will proceed to a full substantive hearing. In either case, both parties are notified of the judge’s decision by means of a court order.
Oral permission stage:
In some cases, the judge will not be able to reach a decision on whether permission should be granted on the basis of the paper documents before him. In these circumstances, an oral permission hearing (OPH) will be ordered. Also, if permission is refused on the papers a claimant has 7 days plus 2 working days for postage (High Court) and 9 days (Upper Tribunal) in which they can ‘renew’ the application to an OPH.
This time period can be abridged to a shorter period if the application is deemed urgent. If so, this will be stated on the Order refusing permission on the papers.
At an OPH the claimant (normally via their legal representatives) before a single judge will explain why they should be granted permission and the Home Office will be given an opportunity to explain why permission should not be granted. The Home Office will instruct a barrister (counsel) to argue why permission should be refused. The Upper Tribunal or High Court will then decide whether permission should be granted.
A claim that is certified as being ‘totally without merit’ cannot renew to an OPH.
Sometimes an OPH is heard at the same time as the substantive hearing and this is called a rolled up hearing. This is more likely to happen where one party has made an application for the case to be expedited (ie heard sooner). A rolled up hearing has the advantage of getting the matter dealt with quickly and in practice is cheaper than the two stage process. However, it does not allow for much time to prepare the substantive defense. At a rolled up hearing the judge will decide whether to grant permission as well as deciding the outcome of the judicial review if permission is granted.
Substantive hearing:
Once a case is granted permission to proceed it will go on to a substantive hearing, unless settled or withdrawn, although occasionally there may be a prehearing known as a case management conference, or an interim relief hearing to take a view on an urgent element of the judicial review.
Once permission is granted the defendant must submit detailed grounds of defense within a specified time frame (35 days from the date of permission grant).
Nearer the hearing date counsel for both sides will submit written arguments as to why the claim should either be allowed (on behalf of the claimant) or dismissed (on behalf of the Home Office). These are called skeleton arguments.
The case will then have a substantive court hearing at which oral arguments are made by both the claimant and defendant. The court will then deliver a final judgment, which will either allow the claim and provide a form of relief in a court order, or dismiss the claim upholding the Home Office’s position.
Onward appealing:
It is possible to appeal a judicial review decision with permission. This includes a refusal of permission, a finding that a case is ‘totally without merit’ or the final judgment.
The Home Office or the claimant can seek to appeal against the decision of the Administrative Court or the Upper Tribunal to the Court of Appeal and then to the Supreme Court.
Settling cases:
A judicial review claim can be settled at any point before a substantive hearing, if the Home Office and the claimant are able to come to an agreement on resolving the matter under dispute. Discussions between the parties about settlement may be conducted on a ‘without prejudice basis’ which means that the court will not see the relevant correspondence. Agreements to settle are then set out in consent order, which is provided to the court (although in some circumstances elements of the agreement are kept private between the parties – this applies particularly to awards of damages). The court will normally approve (seal) a consent order signed by both sides at which point it becomes a binding court order. The court could potentially disagree that the judicial review should be settled as proposed but this is extremely rare. A claimant can also withdraw their judicial review at any point should they wish to do so.
What is the expedited process ?
If a case falls into one of the categories detailed below, it may be suitable for expedition and the Home Office decision maker must refer the case to Litigation Operations (Enforcement) (LOE) for enforcement challenges and Litigation Operations Criminality and Detention (LOCDI) for Criminal Casework cases, to take a decision on expedition. They, along with Government Legal Department (GLD), will inform the Home Office decision maker if the case is suitable to be put forward to the court to be dealt with quickly, because:
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the claimant is in detention
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the claim is from a family being managed to departure through the family return process
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the claim appears to be clearly without merit
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the claim is an abuse of process
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the issue of public safety arises
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the decision-making process has previously been subject to accelerated timescales (such as non-suspensive appeal (NSA) cases or detained)
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there is a risk of self-harm
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the claimant is or was to be removed as part of an enforcement operation (such as a special charter flight)
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for third country and criminal casework (CC) cases expedition will be agreed directly with GLD, the JR caseworker must notify LOE to ensure that the court’s expedited quota is not exceeded
The decision as to whether a case is expedited rests with the High Court/Upper Tribunal.
Where the Home Office has lodged grounds with a request to expedite, it is normally expected that an outcome from the court or tribunal would be forthcoming within 2 weeks (from the date of lodging grounds).
Home Office policy is that cases must only be expedited where they are confident that they can complete removal quickly if the permission application is refused. Normally detention is maintained while a JR permission application is expedited as it is considered removal is still imminent.
Can a claimant withdraw an application for judicial review?
In some cases, a person with an outstanding JR application may ask to leave the UK. Where a person wishes to make a voluntary departure, the Home Office decision maker must ask them to sign a disclaimer (form IS101). The person (or their legal representative) must also contact the courts to withdraw their JR application so that the court file is closed. This must be done before the person leaves the UK so that a Notice of discontinuance can be filed.
If the claimant decides they no longer wish to continue with their judicial review, they must complete a notice of discontinuance form and file this with the court. If a claimant discontinues, strictly they are liable for the defendant’s costs. For that reason, often a claimant will seek to discontinue by way of a consent order providing for no order as to costs.
(4)NOTICES OF REMOVAL
What are the different forms of notice of removal?
Notice of removal may be given in three different forms:
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Notice of a removal window – the person is given notice of a period, known as the removal window, during which they may be removed
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Notice of removal directions – the person is given notice of removal directions and thus knows the exact date of departure
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Limited notice of removal – a more restricted version of the removal window form of notification
Only one of the above forms is necessary in each case.
NOTICE OF REMOVAL WINDOW
How does a Notice of a Removal Window operate?
Under this form of notice the person is given notice of a removal window during which removal may proceed without further notice. This form of notice is suitable for the following persons, subject to exceptions:
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persons being removed under section 10 of the Immigration and Asylum Act 1999 as amended by the Immigration Act 2014, the person will be given a “Notice of Liability for Removal”
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persons being deported under sections 3(5) and (6) of the Immigration Act 1971 or section 32 UK Borders Act 2007, the person will be given a “Deportation Decision Letter”
When “Notice of Liability for Removal” or “Deportation Decision Letter” is given, it starts the notice period. The person may not be removed during this period.
When the notice period ends, the removal window begins. A person may be removed during the removal window.
The “Notice of Liability for Removal” or “Deportation Decision Letter” must include:
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the country of return
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in relation to an asylum claim, details of the part of the country to which they will be removed
The “Notice of Liability for Removal” or “Deportation Decision Letter” must be copied to any legal representative where the Home Office has details of any representative actively involved in the case, or where a person asks that a specified representative be sent copies.
What is an Immigration Factual Summary Sheet?
The “Notice of Liability for Removal” must be accompanied by the Immigration Factual Summary (ICD. 2599):
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This must include a chronology of the case history, including details of whether any appeal rights were exercised and past applications for JR
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A RED0001 notice or other casework decision
An Immigration Factual Summary must, in all cases, be completed and served along with a notice of removal. It has a number of functions:
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it outlines to the person being removed all of the different actions which have been taken on their case which have led to the setting of removal directions
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should the person lodge an application for JR, their legal representative, Operational Support and Certification Unit (OSCU), and the Administrative Court or Upper Tribunal rely on the information contained within the summary in order to make a quick and informed decision concerning the person’s case for JR and whether it is appropriate to maintain or defer removal
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additionally, the ECtHR relies on the information contained within the summary to assess the merits of an application to them to impose interim measures under Rule 39 of the ECtHR’s Rules of Court
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it enables the Home Office to demonstrate to the court all of the steps that have been taken to address a claim to remain in the UK, and to demonstrate that removal is now the appropriate course of action
Which cases are not suitable for removal window ?
Notice of removal may not be given to the following:
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Family cases
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Where the person has no leave but has made a protection (asylum or humanitarian protections) or human rights claim, or appeal, pending
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Where the Home Office has evidence (beyond a self-declaration) that a person is suffering from a condition listed as a risk factor in the Adults at risk in immigration detention policy or other condition that would result in the person being regarded as an adult at risk under that policy
In which cases should the removal window not be used?
Family cases:
Since 1 March 2011, an end to end process has been in place for working with families with children This new process is considered to provide families with greater support and advice when considering their options for voluntarily leaving the UK (Assisted Return). Where families are not prepared to return voluntarily they may be given the opportunity to leave under their own steam (Required Return) before enforcement action (Ensured Return) is considered.
As part of the Assisted Return stage of the new process, all families liable for return are given the opportunity to attend a Family Return Conference to discuss their options for returning home and raise any legal challenges or further submissions regarding their departure. Where necessary, families are then given a minimum of two weeks after their Family Return Conference to think about how best to go home before the Home Office consider setting removal directions.
In addition to the minimum two week Assisted Return reflection period, specific notification periods have been established for giving notice of removal at the Required Return and Ensured Return stages of the family returns process.
In almost all cases, families who are not prepared to voluntarily leave the UK are given the opportunity to make a Required Return which means they leave under their own steam without any enforcement action. In these cases, the Home Office pursues a self check-in or assisted check-in return in which they give notice of removal with at least two weeks notice while they remain living at home.
Families reach the Ensured Return stage of the new process only where the Assisted and Required routes of return have failed or, in exceptional circumstances, where the Home Office consider a Required Return is not appropriate. The standard notification times apply to families subject to Ensured Return unless one or more of the exceptions applies. If the family is subject to a limited notice removal, the standard notification period will be used to provide the time and date before which they will not be removed.
Third country and Non-suspensive appeal (NSA) cases:
Cases certified under a) S.94, S.94B or S.96 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and b) EEA Regulation 33, as well as third country cases do not attract a statutory in-country right of appeal. When the Home Office give notice of removal to a person in these cases, the decision maker must satisfy themselves that they have the opportunity to access the courts before their departure is enforced.
If notice of removal is given at the same time as the NSA or third country decisions this is likely to be their first opportunity for legal redress. A minimum of 5 working days notice must therefore be given between giving notice of removal and the removal itself (unless the case has already been reviewed by JR, or in some circumstances where the individual has received such notice previously.
Special arrangements (including charter flights) :
Chartered flights are subject to special arrangements because of the complexity, practicality and cost of arranging an operation. For this reason, a JR application may not defer removal.
Special arrangements may also apply in other cases. For example, where complex medical needs require a significant number of medical escorts and special equipment.
Operational constraints will determine arrangements necessary for charter operations and other special cases. Details concerning these arrangements will be communicated to the High Court by OSCU in advance of the date planned for the operation. The person being removed will also be notified of these arrangements and that removal will not necessarily be deferred in the event that a JR is lodged. Where removal is not deferred, the person concerned will be advised in a letter to be provided by OSCU of the need to obtain an injunction to prevent removal.
Individuals being removed by special arrangements (including charter flights) who wish to legally challenge their removal are normally required to seek injunctive relief as a JR application will not usually result in deferral of removal. In these circumstances, the person will be given a minimum of five working days notice of removal so they have the opportunity to take legal advice. The purpose of this extended period of notice of removal is to minimise the number of last minute applications for injunctive relief to the High Court in England and Wales, the Court of Session in Scotland or the High Court in Northern Ireland and to encourage people to inform the Home Office at the earliest opportunity of any further submissions they want to make.
If individuals being removed by charter flight or special arrangements are not required to seek injunctive relief to challenge removal, a JR application will usually continue to result in a deferral of removal. In these circumstances, the standard 72 hours notice period applies rather than five working days.
To protect the safety of those on board a chartered aircraft to particular destinations it may be necessary, for security reasons, to withhold the exact details of departure. In these cases, all those being removed by that flight will be given limited notice of removal (ie they will still be given a minimum of five working days notice of removal but will be informed that they will be removed no sooner than five working days and no less than 21 days from the date where notice of removal is given).
NOTICE OF REMOVAL DIRECTIONS
How does a notice of removal directions operate?
Under this form of notice the person is given notice of removal directions which will specify the date of departure. This form of notice is suitable for the removal and deportation of all persons irrespective of the power under which they are being removed.
In most cases notice will usually be by service of form IS151D (or IS92 in port cases), with a copy of the removal directions in the case. The notice period (see: notice period) runs from when notice is served up to the point of departure.
Persons being removed must be given adequate notice that removal has been scheduled. Where the person is detained, notice should ideally be given as soon as removal directions have been set. Where the person being removed is not detained but the removal is to be enforced and removal directions have been set, they should ideally be given notice as soon as possible after arrest. Where removal directions are being served on a person in an Immigration Removal Centre (IRC), the Home Office must ensure that a copy of the removal directions and all other relevant paperwork is faxed promptly to the IRC to serve on the individual. Unless exceptionally agreed with the Home Office manager at the IRC, the notice of removal will be served on the person the same day only where it is received by the IRC before 3pm.
When notice is given to a person being removed, it must be copied to their legal representatives where the Home Office has details of any representative actively involved in the case, or where a person asks that a specified representative be sent copies.
LIMITED NOTICE OF REMOVAL
How does a limited notice of removal operate?
Home Office policy is that limited notice should not be used where a medical or social work professional has advised that it may not be appropriate.
Limited notice can be utilised in all cases (subject to the safeguarding exception detailed above) as an initial return option or as a contingency where a return using alternative option has failed. It may be of particular use where non-compliance or disruption by the family has led to a previous failed return or where there is a reasonable likelihood of future disruption or future noncompliance.
The exact details of the flight and time of departure may be withheld and limited notice given using form IS151G. The individual or family should be informed that they will not be removed during the notice period, and no later than 21 days from when notice is given. In the absence of a copy of the removal directions, they should also be told the country to which they are being removed and the route. This may be notified as a range of possible routes; for example, that the flight will either be direct, or via a safe country, or any other named country being considered as a transit point.
When notice is given to a person being removed, it must be copied to their legal representatives where the Home Office has details of any representative actively involved in the case, or where a person asks that a specified representative be sent copies.
Notice of removal must also be accompanied by the Immigration Factual Summary (ICD. 2599). This must include a chronology of the case history, including details of whether any appeal rights were exercised and past applications for JR.
(5)REMOVAL- THE NOTICE PERIODS
What are the relevant notice periods?
Where notice is given of a removal window, the notice period is 7 calendar days if at the point notice is given the person is not detained.
Otherwise, subject to certain exceptions, the notice period must be of the following minimum time periods:
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normal enforcement cases(administrative removal and deportation) – minimum 72 hours (including at least two working days)
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third country cases and cases where the decision certified the claim – minimum five working days (unless the case has already been reviewed by JR)
In relation to normal enforcement cases (administrative removal and deportation), unless an exception applies, there are three rules to consider when calculating the minimum notice period:
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a minimum of 72 hours must be given
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this 72-hour notification period must always include at least two working days
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the last 24 hours must include a working day unless the notice period already includes three working days
When may standard notification not be required when giving notice of removal?
Standard notification of removal does not need to be given where either:
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an exception applies
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a second period of notification is not needed following a failed removal.
What are the exceptions to standard notification of removal ?
These are:
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port cases where removal occurs within seven days of refusal
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third country and NSA family cases subject to Ensured Return
Port cases :- In port cases, if removal takes place within seven days of refusal, the Home Office caseworkers does not need to provide 72 hours notice. They must provide the standard 72 hours notification of removal in cases which are refused entry at port where removal does not take place within seven days of refusal.
If a human rights claim is raised in a port case where standard notification is not required, the Operational Support and Certification Unit (OSCU) may, where the claim falls to be refused, be able to certify the claim without deferring the removal directions. Such cases must be referred to OSCU who will decide whether such action is appropriate.
Third country and NSA family cases subject to Ensured Return:-Families are liable for Ensured Return only where Assisted and Required Return have both failed or, exceptionally, where the Home Office consider a Required Return is not appropriate. Therefore, any family that reaches this stage of the family returns process will have already had opportunities following their Family Return Conference and, where appropriate, when they were given notice of removal at the Required Return stage, to make an application for JR, if they wanted to do so.
If a third country or NSA family case has reached the Ensured Return stage of the family returns process, the Home Office decision maker does not need to provide a minimum of five working days notice because they will not need this longer notification period to access the courts. Instead, they must provide standard notification (minimum 72 hours) of removal in these cases.
NSA cases already reviewed by JR or following a failed removal :-Where an NSA decision has already been challenged by way of JR and either all JR proceedings have been concluded or the JR proceedings are no longer a legal barrier to removal (e.g. the court has made a finding of ‘no merit’ or that renewal will not be a bar to removal) any subsequent removal directions will only require the standard notice period of 72 hours, not five working days.
Where removal directions have been set for five working days in an NSA case and the individual either does not challenge the removal during that period or their challenge does not result in deferral of their removal, but the removal fails for other reasons (eg travel document issues or technical reasons), the Home Office decision maker should apply the ten days policy where possible. Where this is not possible (eg travel documents take longer than ten days to obtain) removal directions may be reset with 72 hours notice rather than five days.
When will a second period of notification not be needed?
Where a person was given the required notice of removal but the removal fails or is deferred, it may not be necessary to give a further period of notice when rearranging removal for within 10 days of the failed or deferred removal.
Where a person has been given notice of a removal window or limited notice and an attempted removal fails, removal may be rescheduled without further notice if it is within the removal window or limited notice period which they have already been given, without the ten-day policy being applied. This does not prevent the ten-day policy being applied (if it is appropriate to do so) if a removal fails towards the end of the removal window or limited notice period.
(6)DEFERRAL OF NOTICE PERIODS
Can the removal window be deferred to allow access to legal advice and recourse to the courts?
Whether or not they are detained, individuals must be allowed a reasonable opportunity to access legal advice and have recourse to the courts. The purpose of the notice period is to enable individuals to seek legal advice. If, during the notice period, an unrepresented person is yet to instruct a legal representative the decision maker must always consider deferring the removal window for an additional period
Home Office policy is that it is reasonable to expect individuals who are aware that they have not been successful in an immigration claim and/or appeal and/or that outstanding representations may be or have been rejected to act promptly in seeking legal advice. Each case for deferral must be considered on its individual merits. The key consideration is whether the person has had a reasonable opportunity to access legal advice and recourse to the courts.
Can the removal window be deferred to allow detainees access to Legal Aid legal advice surgeries?
Individuals detained in Immigration Removal Centres have access to legal advice ‘surgeries’. DSO 06/2013 provides that detainees must be told of the availability of Legal Aid Agency (LAA) surgeries during the induction process within the first 24 hours. IRC welfare officers act in accordance with DSO 7/2013 to alert detainees to the Duty Solicitor scheme that operates in the individual IRC, the timetable of provision and the mechanism for making an appointment. They also:
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direct detainees to information about how to find an alternative solicitor or other immigration advisor accredited by the Office of the Immigration Services Commissioner
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provide information about the Law Society and Legal Services Commission in a language that detainee can understand
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provide copies of the Bail for Immigration Detainees (BID) notebook
A request for an appointment with the surgery may be made at any time. It is reasonable to expect an individual to make use of the 72-hour notice period allowed for legal consultation at the earliest opportunity should they wish to do so.
Generally speaking, if an unrepresented person (in detention) wishes to obtain legal advice and cannot be given an appointment at an LAA advice surgery within the initial 72-hours notice period, the removal window should normally be deferred to enable an appointment to be arranged.
However, any request for an appointment that necessitates deferral and continued detention should be carefully considered on its merits. Consideration should be given whether the individual:
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was properly notified of access to legal advice
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made their request at the earliest reasonable opportunity
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cooperated with any attempt to arrange a consultation
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delayed their request in order to thwart removal
Can legal representatives request access to relevant documents and case papers?
Legal representatives need access to relevant documents and case papers in order to properly advise their client. There may be some circumstances where an individual does not readily have access to their documents; for instance, because they have been detained at a reporting event or they have been outside the UK for a significant period.
Any refusal decisions, notice of liability to removal and Immigration Factual Summary will be provided to the representatives on request either when the individual is detained or at the point they seek legal advice on a same day removal. In most instances, the Immigration Factual Summary should be fully completed and will provide the necessary key facts and case history.
Where requested by representatives, it is reasonable to provide all relevant documents but, it should be noted, Home Office decision makers may reasonably expect that, unless there has been a change of representative, documents previously provided to an individual and/or their representatives should have been retained. The decision maker may therefore reasonably request representatives to be specific in their requests. A request to release all case papers, whatever their relevance, is not considered to be reasonable and should be challenged.
(7)DEFERRAL OF REMOVAL
Can the threat of judicial review proceedings result in a deferral of removal?
Home Office policy is that it is is not necessary to defer removal on a threat of JR, though it is important to ascertain that the person concerned has had the opportunity to lodge a claim with the courts (particularly in certified or third country cases where there is no statutory in-country right of appeal).
The Home Office will only consider deferring removal if a JR application made in England and Wales is properly lodged with the Administrative Court in accordance with Practice Direction 54A Section II of the Civil Procedure Rules, or properly lodged with the Upper Tribunal in accordance with the Tribunal Procedures (Upper Tribunal) Rules 2008 (as amended).
Where there is a threat of JR, Home Office policy is that removal directions must remain in place until a Crown Office reference, Upper Tribunal reference or injunction is obtained. However, even if a complete JR claim is submitted, removal directions can be maintained where certain exceptions apply and the JR would not be barrier to removal.
Claim form issued with detailed grounds:-The Home Office will normally defer removal where a JR application made in England and Wales has been properly lodged with the Administrative Court or the Upper Tribunal in accordance with the relevant procedure rules. However, removal will not automatically be deferred where there has been less than six months since a previous JR or statutory appeal or the person is within the removal window, or the person is being removed by special arrangements.
Claim form issued with statement of reasons for non-compliance with the Practice Direction:- In cases where the claim form has been issued and the person has provided a statement of reasons for non-compliance with the Practice Direction, the court will notify the Home Office and the matter will be placed before a judge for consideration as soon as practicable. In these circumstances, the Home Office will defer removal if:
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the court decides that good reason has been provided for failure to comply (and gives a direction, for example that detailed grounds be submitted by a specified date)
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permission to proceed to JR is granted
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the court has not yet considered the matter by the time/date of removal, in such circumstances, it will be necessary to defer removal until the court has reached a decision
Out-of-hours claims prior to lodging with the court: Where it is not possible to file a claim due to the Administrative Court or Upper Tribunal office being closed, the Home Office may defer removal if provided with a copy of detailed grounds and subject to a consideration of relevant exceptions. The responsibility remains with the claimant to file the claim form as soon as possible on the next day the Administrative Court or Upper Tribunal office is open and to notify the Home Office that the claim form has been issued.
Special arrangements (including charter flights):-Where a case is scheduled to be removed by special arrangements, including charter flight, and a threat of JR is received:
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the decision maker must refer the case to OSCU immediately
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OSCU will let the decision maker know if the removal can go ahead on a case by case basis
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if OSCU decide not to defer removal, they will provide a letter for the decision maker to send to the person or his representatives of this decision and the reasons, the letter will explain that removal will continue unless an injunction is obtained
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if an injunction is obtained, all enforcement action must be suspended immediately
Port cases :- In port cases where removal directions are set for a date within seven days of refusal, the decision maker must defer removal when a written threat of JR is received. The person must be given 48 hours to lodge their application with the Administrative Court or Upper Tribunal, so any removal planned for within this period must be re-scheduled. The decision maker must also inform the person that their removal will proceed if they do not properly lodge their application with the court or tribunal within this period. The 48 hours begins when the Home Office receive the written threat of JR and must include at least one working day.
When will judicial review proceedings not suspend removal?
Where JR proceedings against removal are brought, the removal will normally be suspended. However, in certain circumstances it will not be necessary to suspend removal.
The first consideration is whether one or more of the following qualifying criteria are met:
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there has been less than 6 months since a previous JR or statutory appeal has been concluded on the same or similar issues. A JR will be on the same or similar issues unless it is brought on completely different grounds, for example the previous JR or statutory appeal related to unlawful detention or was purely procedural
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there has been less than 6 months since a previous JR or statutory appeal has been concluded on the same evidence, even though the legal basis of the challenge is different from that previously brought
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there has been less than 6 months since a previous JR or statutory appeal has been concluded and the issues being raised could reasonably have been raised at that previous JR or statutory appeal
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the JR is brought while the person is within the removal window and as long as the person remains within the removal window (unless another ‘qualifying criteria’ applies)
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there has already been an order refusing an injunction against removal in the JR and no subsequent application for an injunction on removal has been granted
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where a JR renewal application has been made but an application for injunction has already been refused in relation to that same JR application or an order has been made that renewal is no bar to removal
When will judicial review proceedings always suspend removal?
Even where the qualifying criteria are met, removal will always be suspended in any of the following circumstances:
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an injunction against removal is granted by the court or tribunal
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this is the first JR challenge to a decision to certify a claim, the result of which being there is either no appeal, or any appeal right is out of country only
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permission has been granted in the JR
Removal may also be suspended where there is insufficient time before removal for Operational Support and Certification Unit (OSCU) to consider the merits and barriers tests of a case that meets the qualifying criteria. In these cases removal will initially be suspended, however where one of the qualifying criteria is met the litigation handling team will determine whether the JR is bound to fail in the course of filing the acknowledgment of service (AoS).
What is the relevance of the merits and barrier tests to suspension of removal?
Where one or more of the qualifying criteria are met, and there are no reasons why removal must be suspended, the Home Office decision maker should go on to consider whether the JR is bound to fail and/or whether any of the issues raised in the JR are a barrier to removal.
Where the JR is bound to fail and does not raise any issues which are a barrier to removal then removal does not need to be suspended.
Is the JR bound to fail (the ‘merits test’)?
The Home Office decision maker must consider whether the JR is bound to fail either before the decision is taken not to suspend removal or before a decision is taken to arrange removal following a removal request. Examples of when a JR is bound to fail are:
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the grounds for JR are very weak, for example they do not make sense, are clearly standard grounds or are generic (they do not refer to the specific circumstances of the claimant, unless the claim is a ‘class issue’ namely multiple claimants raising the same legal point)
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the JR is obviously unarguable on the facts
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there is clear authority on the legal point in issue
Concluding that a JR is not bound to fail does not mean that it is arguable and therefore that permission should be granted.
Are the issues raised in the JR a barrier to removal? (the ‘barrier test’):
The decision maker must also consider whether the issues raised in the JR should be treated as a barrier to removal:
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does the JR raise new grounds, for example a first time asylum or human rights claim or further submissions that fall to be considered under paragraph 353 of the Immigration Rules?
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does the JR rely on new and relevant evidence that has not previously been considered by the SSHD in deciding a previous application or claim and (where a right of appeal was exercised against the refusal of that previous application or claim) by the court in an appeal? If so, the Home Office decision maker should consider the nature of that evidence.
(8)INJUNCTIONS
What is an injunction?
An injunction is an order issued by a court requiring a party to do something or to refrain from doing something. In removal cases, an injunction might be put in place to prevent the Home Office removing a person from the UK.
Where it is alleged by a person that an injunction against removal has been obtained, the Home Office decision maker must try to confirm this with their legal representative (time permitting in writing or by fax). Where there is written confirmation or a verbal confirmation from a Duty Judge that an injunction has been granted, this must be referred to Operational Support and Certification Unit (OSCU) immediately.
If there is any reason to believe an injunction may have been granted, the Home Office decision maker must contact OSCU who will check with the Duty Judge to confirm verbally that an injunction has been issued. OSCU is open 7am to 9pm Weekdays and 7am to 7pm at the weekend. Outside of OSCU opening times, contact the Command and Control Unit (CCU).
The removal must be stopped if enquiries confirm that an injunction has been issued.
If the removal is imminent (the person is en-route to, or at, the port of embarkation) or is in progress (the aircraft is on the ground and the doors are still open), the caseworker, or CCU out of hours, must immediately take all reasonable steps to ensure that the removal is stopped. In these cases, the Home Office decision maker must not wait until they have received written confirmation of the injunction before cancelling the removal. They must:
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if the removal is escorted, immediately notify the Detainee Escorting and Population Management Unit (DEPMU) that removal must be deferred, DEPMU will inform the escort officers
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if the removal is unescorted, immediately inform CCU
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confirm to the legal representative or the High Court that the removal has been stopped and/or did not proceed
Out of hours and urgent injunctions :
Claimants are served the immigration factual summary when notice of removal is given which advises them that any urgent application for an injunction preventing removal or order granting or refusing an injunction must be sent to the Home Office team handling their case. The immigration factual summary provides the appropriate telephone and fax numbers to use. Outside of normal office hours (9am to 5pm weekdays) or during a public holiday, the urgent application or order must be sent to CCU.
OSCU operate from 7am to 9pm weekdays and from 7am to 7pm at weekends. Between those hours the Home Office decision maker must forward any last-minute challenges to removal to OSCU to deal with.
The telephone number for the Command and Control Unit is 0161 261 1640.
How do the Home Office handle JRs involving simultaneous injunction applications?
If a decision has been taken to suspend removal on the basis of a JR received simultaneously with an injunction application, OSCU must confirm the suspension of removal to the relevant court centre (Administrative Court or Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) by email or telephone the duty clerk at the Administrative Court out-of-hours on 020 7047 6260. UTIAC has no out-of-hours facilities.
The Administrative Court and UTIAC have standing instructions to telephone OSCU (or Command and Control Unit (CCU) outside OSCU’s hours of operation) in advance of considering an application for an injunction. They will do so where they have not received confirmation of whether removal is to be suspended.
OSCU will advise the court whether removal is imminent and, if so, whether removal will be suspended as a result of the JR.
(9)RULE 39 INDICATIONS FROM THE EUROPEAN COURT OF HUMAN RIGHTS
When is it possible to ask the European Court of Human Rights for a suspension of removal action?
The Human Rights Act 1998 came into force on 2 October 2000, incorporating rights and freedoms guaranteed under the European Convention on Human Rights into domestic law. A decision under section 82 of the Nationality, Immigration and Asylum Act 2002 can be appealed on human rights grounds. It is still possible for an application to be made to the European Court of Human Rights (ECtHR), in Strasbourg, but it is unlikely that such an application will be accepted until appeal rights have been exhausted.
An application made to the ECtHR does not in itself require the suspension of removal. However, when applying it is possible to ask the Court, in effect, to order the suspension of removal action as an interim measure to allow the Court to consider the substantive matter in full before removal takes place. The technical procedure to achieve this is by making a request under rule 39 of the ECtHR’s Rules of Court. In response to such an application request, the ECtHR will (where appropriate) give a ‘rule 39 indication’ indicating that the person must not be removed. This must be treated in the same way as an injunction.
All enquiries relating to threats of, or applications for, rule 39 indications must be directed to the Operational Support and Certification Unit (OSCU) duty officer in the first instance. Ongoing litigation (should a rule 39 indication be granted) will be handled by Litigation Operations.
A Rule 39 indication is similar to a High Court injunction but is made by the ECtHR. Where a Home Office decision maker has been notified that a rule 39 indication has been made, they must:
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defer removal immediately
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where the person is detained, make sure this development is considered in relation to any decision to continue with detention
If a subject subsequently wishes to withdraw their rule 39 application, that must be communicated to the Court. The Court may wish to confirm this with the applicant, and the Home Office decision maker must take no action to enable removal of a subject (including by voluntary departure) until they receive confirmation that the Court has accepted the application as withdrawn.
(10)RELEVANT HOME OFFICE POLICY GUIDANCE