In the recent case R (FB and NR) v Secretary of State for the Home Department  UKUT 428 (IAC), applicants challenge the legality of the Home Office removal policy in deportation orders.
Until now, in deportation orders the Home Office have been able to deport people from the UK through a “removal window”. This window had the duration of 3-months and they were not required to inform the person of the exact time and date the removal would occur. Upon occasion, this period could be extended.
The applicants argued firstly that the notice of the removal must be given in accordance with case law Anufrijeva  UKHL 36 and Medical Justice ( EWHC 1925 (Admin) /  EWCA Civ 269);
REGINA V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE ANUFRIJEVA: HL 26 JUN 2003: The House of Lords held that there must be a notice of decision before it can have legal effect, as the individual must have the opportunity to challenge the decision.
Medical Justice, R (on the application of) v Secretary of State for the Home Department  EWHC 1925 (Admin) (26 July 2010): The High Court has ruled that failure to provide a notice of decision, or providing an uncomprehensive notice of decision in the case of fast-track scheme for the removal of failed asylum seekers does not provide sufficient access to justice and therefore is unlawful.
The applicants secondly found the policy to deny the access to justice by making the access to legal representation difficult in failing to comply with the Unison  UKSC 51 decision; therefore making it ultra vires.
R (UNISON) v Lord Chancellor  UKSC 51:
The legal fees were found to be unlawful as they must be set at an amount that can be accessed by everyone. In the case that they are, they may still be unlawful if it is rendered useless or irrational to bring a claim.
The applicants thirdly found that the policy was not flexible enough to be tailored to individual cases.
This led to the Secretary of state revising the policy and publishing Version 15 on the 21st of May 2018.
This new version with the title “Consideration of deferral of removal” introduced a more adaptable model.
It provided more flexibility for Individuals and Legal Representatives. They are able to access legal advice and access the courts during the notice of liability to removal period within a certain time-frame. In addition, legal representatives had to be provided with all relevant documents upon request. Finally, it allowed for the removal would to be able to be deferred firstly in the cases of a change in legal representation; and secondly in the cases where the person subject to remove had not had access to legal advice during the notice of liability to removal period.
Although this version introduced a further degree of flexibility, it was further challenged.
The Upper Tribunal did not declare versions 14 and 15 to be ultra vires, however they did provide the following declarations on version 15.
They found it to be unlawful that the notice of the removal window did not specify the length of the window, the route of deportation and the place of deportation. This would lead to misunderstandings and the person in question being at risk of being removed to an area that is unsafe for them. Overall this would counter-act the Home Office’s duty of care owed to these individuals.
Consequently, this led to a further version 16 being introduced in October 2018, and a version 17 being introduced on the 5th of November 2018.
Version 17 introduced two new removal notices:
In cases where the person originally subject to removal will be removed, RED.006 will apply. This will allow for the individual to extend both the notice period and the removal window so that they have the opportunity to access legal advice.
In the cases where the person originally subject to removal is no longer able to be removed in the 3-month window, RED.005 applies. This is often in cases where the individual is categorised as an ‘adult at risk’. This will provide individuals and their legal representatives with clarity as to whether the removal window is still applicable or has been withdrawn.
Overall, the new removal policy states that the removal will be deferred if the individual has not received reasonable access to legal advice and recourse to the courts. Moreover, Legal representatives have more opportunity to request deferrals and the disclosure of client information and documentation.
In conclusion, although the effectiveness of these changes will depend on the application by the Home Office in practice, it will offer a degree of certainty to both individuals and their legal representatives.