UK Court of Appeal Rules Home Department’s Deportation Policy of Immigrants Unlawful

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Moshiuzzaman
Moshiuzzaman holds a 2:1 LL.B degree from BPP University (UK). He is currently pursuing the CFA chartership and working as an independent legal researcher at the American Society of International Law (ASIL)

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Britain’s Court of Appeal quashed the Home Department’s deportation policy, declaring it unlawful; criticizing it for being too stringent on immigrants to comply with.

Background

The case in question concerned a public interest claim brought forward by Medical Justice, a charity that facilitates the provisions of advice to those detained in immigration removal centres. The Conservative government, since being elected in 2019 had promised to bring change in the United Kingdom’s immigration policy. Priti Patel, Secretary of State for the Home Department, a hardline Conservative had renewed the UK’s immigration policy in late July 2020, under which the Home Department could serve an immigrant or asylum seeker between 72 hours and 7 days’ notice to be removed from the UK at any time without any further warning following three months. This policy bore a quick, unfair, and unjust “removal notice window” to immigrants or asylum seeks, who are often sick or unable to participate in formal litigation due to financial constraints.

The new policy, therefore, brought a great disadvantage in seeking appeal or revision of the due process. Moreover, once an immigrant or asylum seeker was deported, there was no point in having their application reviewed or the legal merits of their case revised as they would not be allowed back entry. Consequently, Medical Justice brought legal proceedings against the Secretary of State for the Home Department. 

The Court of Appeal

Before appearing before the Court of Appeal, the High Court had ruled in favour of the Secretary of State in this matter last year. However, the Court of Appeal did not agree with the justification provided in the High Court. Lord Justice Hickinbottom, began by stating that a state had the right to control those who wish to enter or remain in its territory, and consequently to set criteria for entitlement to enter or remain and for the removal of those within its borders who have no right to be there. His Lordship continued and provided that where the individual “dispute[s]” an executive order, that bears entitlement and/or removal, as part of their right to access to justice, they generally have the right to apply to a court or tribunal to challenge that decision. It is here, where the new policy implemented by the Secretary of State troubles immigrants or asylum seekers. 

His Lordship noted that the Secretary of State for the Home Department’s new policy is unlawful as it abrogates the right to access to justice in respect of decisions which bear upon their removal. Put simply, the new period is too short for those affected to instruct lawyers to make representations to be considered by the Secretary of State, and then for an application to be made to a court or tribunal to challenge any negative decision; and so it is inevitable that many negative decisions affecting their rights to remain and their removal are made after the notice period has ended, so that they become at risk of immediate removal without an adequate opportunity to challenge the material decision or decisions before a court or tribunal. 

Click here to view the original judgement


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