Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement Contents

6Removals and notice periods

Removals

161.Removing individuals who have no legal right to remain in the UK is a necessary element of effective immigration enforcement. The power to remove a person who requires leave to enter or remain in the UK, but does not have it, is contained in section 10 of the Immigration and Asylum Act 1999. This power extends to the removal of those who have been refused leave, including asylum seekers whose applications for refugee status or humanitarian protection have been rejected and individuals, including refugees, whose leave to enter or remain, including indefinite leave to remain, has been revoked.158

162.Removal comes at the end of the immigration process.159 Initial immigration decisions can take a long time to process, particularly in asylum cases.160 Any appeal that follows can take many more months or even years. This means that individuals and families facing removal may have spent a considerable period in the UK and formed social and community connections. Even for those who have no basis to stay in the UK, a sudden removal can be a distressing and traumatic experience.

163.Individuals may receive notification that they are liable to removal at the same time that they are first informed that their immigration claim or appeal has been unsuccessful. The constitutional right of access to justice, guaranteed by the common law, demands that anyone who is about to be removed is given an opportunity to take legal advice and to challenge the removal decision if that is appropriate.161 In this regard, it is important to recall that Home Office decision-making is far from faultless. For example, over the past 5 years the average success rate for asylum appeals is over 40%.162 Failing to give an individual an effective opportunity to challenge an immigration decision may well result in the wrong decision being made. The ramifications of an incorrect decision are most severe when the individual’s claim for the right to remain in the UK is based on refugee status or a risk of a serious human rights breach if they are returned, such as a violation of Article 2 (the right to life) or Article 3 (the prohibition on torture or inhuman or degrading treatment) ECHR. In these circumstances, the same rights of access to justice provided by the common law are also guaranteed under Article 13 ECHR (the right to an effective remedy).163

Current policy

164.In recognition of the need to ensure access to justice, individuals who are about to be removed under section 10 of the 1999 Act are given some notice of that removal. There is no statutory requirement, but Home Office guidance provides for minimum notice periods. This guidance has been amended on a number of occasions, notably including as a result of legal challenges arguing that it provided inadequate notice, inconsistent with the right of access to justice.164 The current policy provides:165

a)In “normal enforcement cases” the person being removed must be given at least 72hrs before the removal. That 72hrs must contain at least 2 working days, and the final day before the removal must be a working day (unless there have been 3 working days’ notice already).

b)In cases where the person being removed has no in-country right of appeal against the rejection of their immigration claim, they must be given an opportunity to access the courts before their departure is enforced and thus a minimum of 5 working days’ notice–in recognition of the fact that this is likely to be their first opportunity for legal redress.166

c)Where a removal cannot take place, it may not be necessary to provide notice of removal again as long as the deferred removal takes place within 10 days.

165.The policy also provides for notification in respect of ‘removal windows’.167 This is a process by which a person is given notice of a 3 month period, or ‘window’, within which they can be removed, but not notice of when precisely within that period the removal will take place. While the latest version of the policy includes a section on ‘removal windows’ it also states that their use is currently suspended.168 This follows legal challenges which argued that the use of removal windows resulted in decisions that were vital to an immigration or asylum claim, and could result in removal, being made during the window when no further notice was of removal would be given. The Court of Appeal concluded in the case of FB (Afghanistan) that the policy “incorporated an unacceptable risk of interference with the right of access to court by exposing a category of irregular migrants, including those who have claims on article 2 and/or article 3 human rights and protection grounds, to the risk of removal without any proper opportunity to challenge a relevant decision in a court or tribunal.”169

Clause 45 of the Bill

166.It is against this backdrop that Clause 45 of the Bill proposes giving the requirement to provide notice before removal a statutory footing. Clause 45 provides that removal under section 10 of the Immigration and Asylum Act 1999 is only permitted in accordance with section 10A to 10E.

167.The proposed new sections 10A to 10E of the 1999 Act would affect a number of changes to the current approach. They would require notification both of (a) the intention to remove and (b) the details of departure, including the date and time. Sections 10A to 10E do not, therefore, allow for notification of a ‘removal window’. The Bill would end the use of the process that was criticised in FB (Afghanistan), which is to be welcomed.

168.The current 72 hour notice period would be extended so that a minimum five working day notice period would apply in all cases. This would increase the likelihood of persons being able to obtain legal advice and challenge the removal decision, in accordance with the right to access justice. However, the individual claimant will still need to identify and instruct a qualified immigration lawyer and it is likely that they will not be able to pay a lawyer without legal aid. In the 2017–2019 Parliament, the Joint Committee on Human Rights expressed its concerns about the impact of legal aid reform on the availability of legal aid lawyers generally, and in particular in relation to ‘legal aid deserts’ in certain areas—a concern which applies equally to asylum lawyers.170

169.The proposed new section 10B of the 1999 Act provides for situations where no further notice is needed when removal has been frustrated. It clarifies the existing policy by limiting the failed removals that would not require additional notice when rearranged to those caused by “matters reasonably beyond the control of the Secretary of State”, such as “adverse weather conditions”, “technical faults” or “disruption by the person to be removed or others”. The proposed new section 10B would, however, also extend the period following a failed removal during which a person can be removed without an additional notice period. From the current period of 10 days it would be extended to 21 days.

170.Like the existing policy, the new section 10B protects against unnecessary additional delays and against persons liable to removal being able to exploit the requirement for notice to unreasonably delay immigration enforcement action. The changes are relatively consistent with the existing policy, although the current policy does not allow no further notice to be given “where there has been a significant change in circumstances.” This includes where “further submissions (involving issues of substance which had not been previously raised and considered) have been received and refused since the earlier removal direction failed.” This exclusion does not appear in the Bill. Furthermore, on an ordinary reading of “matters reasonably beyond the control of the Secretary of State”, which would justify taking removal action without further notification, it could include a legitimate legal claim or tribunal decision. It is hard to envisage a justified legal action that was resolved within 21 days of a failed removal. Nevertheless, it remains important to ensure that in such a case the individual’s right to access justice is protected; that they would have an opportunity to consider their legal options again after a decision on their action has been provided.

171.The proposed new section 10D of the 1999 Act would alter the notice requirements where an individual has received a ‘priority removal notice’ (PRN). PRNs are introduced in clause 19 of Part 2 of the Bill, which does not fall within the scope of this Report. In summary, however, a PRN can be served on anyone liable to removal. When a PRN is served on a claimant it imposes a duty to provide, within a specific time frame, an exhaustive statement of all the grounds on which they claim to be entitled to enter or remain in the UK (including any information relating to being a victim of trafficking or slavery) and evidence in support of those grounds. Under the proposed new section 10D, a person who has failed to provide this information within the deadline imposed by the PRN can be removed without notice for a period of 21 days following the deadline’s expiry.171 The only requirement is that they are given notice of their departure details before they are removed.172

172.A failure to meet a PRN deadline may have other detrimental impacts on an asylum seeker’s claim, most notably by impacting on the assessment of its credibility and on the weight to be given to supportive evidence.173 There will be no detriment to credibility or the weight given to evidence, however, if the asylum seeker can show that there were “good reasons” for failing to meet the deadline. By contrast, the liability to removal without notice under the new section 10D in clause 40 applies regardless of whether there are “good reasons” for the delay. The changes imposed by the new section 10D could therefore result in an individual being removed without additional notice just because a procedural deadline has been missed for good reason. This puts the right of access to justice at risk.

Other ramifications

173.Under paragraph 3(4) of Schedule 10 to the Immigration Act 2016, a person in immigration detention who is subject to removal directions cannot be granted immigration bail during the 14 days before the date of removal, without the consent of the Secretary of State. Clause 45(8) of the Bill would extend this period to 21 days. This would mean a significantly increased chance that anyone served with removal directions whilst in detention will be required to spend an additional week detained. Whilst the First-tier Tribunal granting immigration bail shortly before removal is not usual, it is not impossible. This change in the law will result in some individuals spending time in immigration detention when they would otherwise be released on bail.

174.As discussed further below, immigration detention represents an interference with the right to liberty guaranteed by the common law and by Article 5 ECHR. Any increase in detention that is not reasonably justified risks incompatibility with Article 5.

175.Overall, the Committee welcomes clause 45 as it provides a statutory guarantee of at least 5 working days’ notice before a person is removed, an increase on the 72hrs currently guaranteed in policy guidance and does not permit the use of ‘removal windows’. These changes provide greater protection for the right of access to justice and against unjustified removals to face human rights abuses taking place without legal challenge. It is important to recognise, however, that the Bill provides for a minimum period of notice, and that if more notice is required to ensure the recipient’s right to access justice is respected then more must be provided.

176.It is also important that the power to remove a person who has been issued a priority removal notice without providing a notice period is not used in cases where the right to access justice requires notice to be given. The power of the Secretary of State to remove a person without further notice being given where a removal has previously failed must not be used in cases where a removal has failed for legitimate reasons or where the claimant’s right to access justice requires him or her to have additional notice. This power must not be relied upon to detain individuals on immigration grounds when detention is not necessary. The Bill should be amended to make plain that the right to access justice must be respected in any decision on providing notice to an individual liable to removal. It should also be emphasised in the policy guidance that accompanies the power to detain that detention should not be maintained for 21 days in advance of a removal date where that detention is not necessary and proportionate in the individual case.

158 See section 76 of the Nationality, Immigration and Asylum Act 2002. Under section 76(2), a person’s indefinite leave can be revoked if they obtained it through deception. Under section 76(3), a person’s indefinite leave to remain can be revoked if he “ceases to be a refugee as a result of (a) voluntarily availing himself of the protection of his country of nationality, (b) voluntarily re-acquiring a lost nationality, (c) acquiring the nationality of a country other than the United Kingdom and availing himself of its protection, or (d) voluntarily establishing himself in a country in respect of which he was a refugee.” These conditions mirror those contained in Article 1(C) of the Refugee Convention 1951.

159 Currently, under section 77 of the Nationality, Immigration and Asylum Act 2002 no person can be removed from the UK whilst they have an asylum claim pending. It should be noted that clause 28 in Part II of the Bill proposes amending the law to allow for the removal of individuals while asylum claims are still pending, but this falls outside the ambit of this report.

160 The Government’s website states that an asylum application “will usually be decided within 6 months” but “[i]t may take longer if it’s complicated…”. According to Home Office statistics, however, the number of asylum seekers waiting more than 6 months for an initial decision has risen from 3,626 in December 2015 to 42,206 in June 2021 (despite the total number of asylum applications remaining relatively stable over this period). A detailed recent report by the Refugee Council, based on Freedom of Information requests to the Home Office, found that in December 2020 there were more than 33,000 asylum applicants who had been waiting more than a year for an initial decision (see Refugee Council, Living in Limbo: a decade of delays in the UK asylum system, July 2021).

161 See Lord Steyn in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, at [26]: “Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule, it is simply an application of the right of access to justice….”. It is also consistent with the requirements of Article 13 of the ICCPR, which states that any alien must “be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”

162 Home Office, Home Office Immigration Statistics, year ending June 2021, accessed 18 November 2021

163 De Souza Ribeiro v France (Application no 22689/07)

164 R (on the application of Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 1710 and R (on the application of FB (Afghanistan)) v Secretary of State for the Home Department [2020] EWCA Civ 1338

165 Home Office, Immigration returns, enforcement and detention General Instructions; Judicial reviews and injunctions, 22 April 2021

166 This includes cases certified under section 94, section 94B or section 96 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), as well as cases in which an asylum claim has been declared inadmissible on the basis of a connection to a safe third country. None of these cases attract a statutory in-country right of appeal.

167 The policy provides that the person being removed must be notified at least 7 days before the removal window begins if not detained, or otherwise at least 72hrs before or 5 working days if they have no in-country appeal.

168 Home Office, Judicial reviews chapter 60 (publishing.service.gov.uk) Immigration returns, enforcement and detention General Instructions; Judicial reviews and injunctions, 22 April 2021, page 5: “With immediate effect and until further notice, the use of removal windows as set out in this instruction is suspended.”

169 R (on the application of FB (Afghanistan)) v Secretary of State for the Home Department [2020] EWCA Civ 1338

170 Joint Committee on Human Rights, Tenth Report of Session 2017–19, Enforcing Human Rights, HC669/HL Paper 171, para 83

171 Proposed new section 10D(2) of the Immigration and Asylum Act 1999

172 Proposed new section 10D(2) of the Immigration and Asylum Act 1999

173 See clause 21 and clause 25 respectively




Published: 1 December 2021 Site information    Accessibility statement