Liability to administrative removal, RED Notices, removal windows and injunctions: Your frequently asked questions answered

The following heads of consideration are raised in detail below:


  • Liability to non- EEA Administrative Removal

  • Notice of liability to Administrative Removal- RED Notices

  • Judicial Review

  • Notices of removal

  • Removal- the Notice Periods

  • Deferral of Notice Periods

  • Deferral of Removal

  • Injunctions

  • Rule 39 Indications from the European Court of Human Rights

  • Relevant Home Office policy Guidance


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Straightjacket effect of MS(Pakistan): The problem of the First Tier Tribunal’s restricted approach to negative trafficking decisions

Would the Tribunal have found themselves in the straight jacket that the Court of Appeal has clothed it with had the Upper Tribunal not “exceeded it’s jurisdiction” or “ overreached itself” as concluded by the Court in The Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594?


The appeal in MS in the Court of Appeal raised an issue of principle as to the jurisdiction of the First-tier Tribunal and the Upper Tribunal on a statutory appeal under section 84 of the Nationality, Immigration and Asylum Act 2002 Act to undertake an indirect judicial review of a negative trafficking decision made by the Secretary of State in that individual’s case. In that context, the appeal was noted to concern the scope and effect of the previous decision of the Court of Appeal in AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469.


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After Kiarie and Byndloss: Applicant has a second bite of the cherry in a Section 94(B) certification case

QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413 (21 June 2018) addresses several important strands arising out of a challenge in the Court of Appeal to a Section 94(B) Certificate.



Interestingly, in QR(Pakistan), the Court of Appeal granted permission for judicial review in a case where the Applicant had prior to his deportation in February 2017, unsuccessfully mounted a challenge in relation to a previously issued Section 94(B) certificate. After his deportation and following the publication Kiarie and Byndloss in June 2017 in the Supreme Court, well out of time, the Applicant sought to resurrect his previous claim by lodgement of further judicial proceedings in September 2017 whilst abroad.


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Wide-reaching judicial innovation: Stateless UK born child able to acquire Indian nationality found entitled to British citizenship

By an innovative and skilful interweaving of statutory provisions, caselaw and guidance, Mr C M G Ockelton  sitting as Deputy High Court Judge,  reached a startling conclusion. He concluded that a child born in the UK in 2010, who  could have been registered as an Indian national at  any time  since  birth,  was entitled to registration as a British citizen, having regard to the requirements of paragraph 3 of Schedule 2 to the British Nationality Act 1981.


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Winning the battle but losing the war: ECHR concludes Zimbabwean claimant unlawfully detained but refuses to award damages

In SMM v. THE UNITED KINGDOM – 77450/12 (Judgment : Violation of Article 5 – Right to liberty and security (Article 5-1 – Lawful arrest or detention)) [2017] ECHR 582 (22 June 2017), a Zimbabwean national residing in the UK, complained to the ECHR that his detention from 28 November 2008 to 15 September 2011 was in violation of Article 5  1 (f) of the Convention, was lawful under domestic law and was unreasonable, arbitrary and disproportionate.


Even though S.M.M, had been detained for a period of two and half years and  was  considered vulnerable as someone suffering from serious mental health problems, nothing much turned upon  the issues  of the  stay on forced removals to Zimbabwe  that was in place during his period of detention but most importantly,  because of his conduct during the period of detention, the ECHR refused to  afford the applicant any financial compensation  for the  period during which he was found to have been  unlawfully detained.


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