UK Court of Appeal finds deportation policy unlawful due to real risk of preventing access to justice
The Court of Appeal in England has ruled that the rules relating to deportation contained in the Home Office’s Judicial Review and Injunctions Policy were unlawful insofar as they gave rise to a real risk of preventing access to justice.
The appellants, represented by Public Law Project, in FB (Afghanistan) and Medical Justice v The Secretary State for the Home Department [2020] EWCA Civ 1338, argued that the window of time between the date an individual receives warning of deportation and the date that they will be deported from the country is too short to allow the individual to seek legal advice.
The warning of deportation states that an individual will be deported at any time over the next three months on as little as 72 hours' notice. It was the appellants’ submission that this was not enough time for the individual to locate an immigration lawyer, obtain their services, and fight for a right to remain. Moreover, if the individual appeals the deportation themselves and are refused, they have very little time to get a lawyer to help them further.
Lord Justice Coulson in the Court of Appeal recognised that the “right to access to justice is an inevitable consequence of the rule of law: as such, it is a fundamental principle in any democratic society”, and relied on R (Unison) v Lord Chancellor to confirm that the access must be effective and realistic. The Court agreed with the appellants outlining that the policy did not allow sufficient opportunity for the individual to challenge the deportation notice in court or tribunal and thus created an obstacle for the individual to access justice.
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