We have recently commented on this government’s recent attacks on lawyers and its apparent disregard for the rule of law. The Court of Appeal has now ruled that the Home Offices “removal window” policy is unlawful, following a successful judicial review application brought by Public Law Project, acting for Migrant Justice. Its decision in R (FB (Afghanistan)) v The Secretary of State for the Home Department [2020] is a timely reminder of the importance of access to justice, the role of the law in holding the executive to account and safeguarding the rule of law.

The policy was introduced in 2015, creating a system under which individuals liable to removal were served with notices notifying them that they would be removed from the UK at any time during a timeframe that would last up to three months. Those out of detention were given at least 7 days’ notice of the window’s commencement and detained individuals were given a minimum of 72 hours’ notice. It has been reported that more than 40,000 people were removed under the policy until its suspension in March 2019, when Medical Justice’s application for interim relief was granted.

Prior to its suspension, we encountered serious flaws with its operation, including decision-makers setting removal windows for individuals recognised as ‘adults at risk’ in detention; vulnerable people who are ineligible from removal under a removal window.

The Court of Appeal held that the policy is unlawful because it operated in such a way that individuals could be prevented from being able to challenge removal decisions in court, due to the extremely limited timeframes involved. Recognising the potential barriers to accessing justice that the policy created, the Lord Chief Justice, Lord Burnett of Maldon observed:

“There is no escaping the conclusion that the Policy puts irregular migrants at risk of removal immediately following an adverse decision made, or notified, during the removal window which thus deprives that group of a proper opportunity to challenge the decision before removal.”

This is a welcome victory for migrants’ rights and the rule of law at a time when both have been overtly under threat by the Secretary of State.

The full decision can be found here.