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Court of Appeal Declares the Home Secretary's Removal Policy Breaches the Constitutional Right of Access to Justice

Wednesday 21 October 2020

Sonali Naik QC

Ali Bandegani

Stephanie Harrison QC

Our Sonali Naik QC and Ali Bandegani of the Garden Court Immigration Team represented FB (Afghanistan), instructed by Duncan Lewis. 

The interveners were represented by the EHRC instructing Stephanie Harrison QC of Garden Court Chambers and Shu Shin Luh of Doughty Street Chambers.

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In a unanimous decision, handed down today, the Court of Appeal held in R (FB (Afghanistan) and Medical Justice) –v- The Secretary of State for the Home Department [2002] EWCA Civ 1338 that the Home Secretary’s removals policy is unlawful.

The policy gave many individuals (often detained) a 72-hour notice period to apply for leave to remain in the UK before a 3-month removal window opened during which they could be removed any time without further notice. Our client was subject to this policy when detained under immigration powers. He was at risk of removal until this Judicial Review claim was brought. Luckily, he secured an injunction preventing his removal, and now has refugee status.

FB and Medical Justice made supporting and complimentary submissions on appeal. Both successfully argued the policy interfered with the constitutional right of access to justice. The Court held the policy created an ‘unacceptable risk of interference with the right of access to court’ leading to a ‘risk of removal without any proper opportunity to challenge a relevant decision in a court or tribunal’ (para 147 of the judgment). 

FB is now considering an appeal to the UK Supreme Court on an additional ground which the court dismissed, namely whether the Home Office is required to give notice of the actual date and time of proposed removal.

Philip Armitage, Solicitor for FB, commented on the judgment:

‘This important decision from the Court of Appeal emphasises that everyone is entitled to the absolute right of access justice. Our client faced arbitrary removal, for weeks, to Afghanistan where his life is at risk.  Although he is now a refugee, things could have been very different. Upholding the ‘rule of law’ by ensuring access to justice is not an abstract concept or something to be taken lightly. For individuals like our client it is the difference between protection in the UK and persecutory treatment in their home countries.’

FB (Afghanistan) was represented by Toufique Hossain, Raja Uruthiravinayagan and Philip Armitage of Duncan Lewis Solicitors, instructing Sonali Naik QC and Ali Bandegani of Garden Court Chambers and Alex Goodman of Landmark Chambers.

Medical Justice were represented by Rakesh Singh at Public Law Project instructing Charlotte Kilroy QC, Alison Pickup, Anthony Vaughan.

The interveners were represented by the EHRC instructing Stephanie Harrison QC, of Garden Court Chambers and Shu Shin Lu of Doughty Street Chambers.

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