Access to justice is a fundamental right in the common law and an essential part of the rule of law. In R v Lord Chancellor Ex Parte Witham, Laws J stated that the common law affords special weight to the right of access to the courts as a constitutional right. Such a constitutional right derives chiefly from two sources, the common law per se and Article 6 of the European Convention on Human Rights (ECHR). One of the major issues, however, for asylum seekers is the fact that the guarantees afforded under Article 6 ECHR, do not apply to asylum decisions. Its wider protection is constrained to the determination of ‘civil rights and obligations’ and the right to asylum is not considered a ‘civil right’ within the context of Article 6 (1) ECHR. Therefore, asylum seekers whose applications for refugee status or humanitarian protection have been unsuccessful, including refugees whose leave to enter or remain has been revoked, are subject to removal under section 10 of the Immigration and Asylum Act 1999. 

In recognition of the fundamental right of access to justice, individuals liable to removal under section 10 of the 1999 Act, may receive a ‘removal notice’ so as to be afforded the opportunity to challenge the decision in the courts. In 2007, the Secretary of State for the Home Department (SSHD) introduced a policy specifying that a minimum of 72 hours (including at least 2 working days) had to be allowed between a notification of removal direction to the person being removed and the actual removal. Provisions in the policy which reduced the ad hoc notice of removal period to less than 72 hours were overruled (R (Medical Justice) v SSHD) on the grounds that ‘this would make it impossible to lodge a judicial review application in time’. Against this backdrop, clause 45 of the Nationality and Borders Bill (NBB) has a two-pronged purpose; first, to give a ‘statutory footing’ to the five days’ notice time frame to enable individuals to access justice prior to removal and second, by legislating for a minimum period, to ‘standardise the time to access legal advice’ (Explanatory notes paras 493 and 497). The question raised in this regard is twofold; whether the clause serves its purpose considering the number of exceptions to the right to notice and if the access to justice window substantially guarantees an opportunity to lodge a judicial review application given that this frequently critically depends on the availability of legal aid provision. 

The Effectiveness of Clause 45 and its Endogenous Blind Spots

The ‘Judicial Reviews and Injunctions’ (JRI) policy gives guidance on notice periods, removal windows and the judicial review process in enforcement cases. The current JRI policy confirms that the notice period is set to 72 hours, including at least two working days, but five days in third country cases and non-suspensive appeals (NSA) cases. Clause 45 provides a statutory guarantee of 5 days’ minimum notice period in all cases and does not permit the use of ‘removal windows’–which are already suspended in the 2021 JRI policy until further notice and heavily criticised in the R(FB(Afghanistan) & Anor) v SSHD.Nonetheless, section 10B of the clause regarding ‘failed removals’ provides for an exception to the 5 days’ notice period requirement. Where there are matters reasonably beyond the Secretary of State’s control, such as ‘adverse weather conditions’, ‘technical faults’ or ‘disruption by the person to be removed or others’, the period following a failed removal is extended from the current 10 days removal timeframe to 21 days with no additional notice period. Although, understandably, this avoids complicating operational processes and procedures of the removal process and unreasonably delay immigration enforcement action, at the same time, matters beyond the Secretary of State’s control and in particular, the absence of clarification of what constitutes a ‘disruption’ has raised concerns in a way that the notion per se may receive different interpretations. In R(AT, FF,BT) v SSHD, claimant AT, a Gambian national, was taken to the relevant immigration centre and was informed he would be removed to Gambia, as his asylum claim was refused. AT was protesting of not being able to return to Gambia due to his wife’s pregnancy and expectancy to deliver soon. Removal was cancelled on the grounds that AT had been disruptive. In light of section 10B of the clause 45, the Home Office would have proceeded with the removal within the 21 days’ timeframe, without the need for a notice to be re-issued.

Notwithstanding, no express provision in the Bill or under the removals clause ensures access to legal aid advice for those liable for removal. This poses serious limitations not only for those in detention but also for failed asylum seekers, including refugees whose leave to enter or remain has been revoked and who are in immediate need of legal intervention. AT’s removal on less than 24hrs was held to be unlawful due to the flawed decision and procedural unfairness. The lack of legal representation to issue a judicial review resulted in an inability to timely prevent his removal. In addition, the fact that the Home Office was under no obligation to issue further notice following the previous cancelled removal notice along with the difficulties in obtaining proper access to justice and the difficulty in accessing legal advice while in detention, resulted in AT being separated from his family and thus, violating his Article 8 ECHR rights.

Regarding judicial review, section 10E of the clause raises as well a number of issues. This section applies where, pending judicial review proceedings, a planned removal cannot be actioned, which seems in effect that there is no time limit. If proceedings conclude for a removal to be actioned, the Secretary of State does not have to give a notice if the individual is removed before the end of the period of 21 days from the court’s decision (section 10E §2(b)). Yet, a decision may take a substantial time to be issued while in the meantime ‘significant change in circumstances’ may occur since the first notice and thus, prevent it (R (Karas) v SSHD). Nevertheless, as per the section’s current articulation, following judicial review proceedings decision, a removal can be enforced without further notice or granting opportunity to make further representations that amount to a ‘fresh claim’ under paragraph 353 of the Immigration Rules. Considering the importance of ensuring that the individual’s right to access justice is protected, clause 45 does not seem to effectively reflect that or adequately address cases where an individual is entitled to seek proper legal advice and wishes to appeal the court’s decision.

Effective Access to Justice and the Legal Aid Deserts Phenomenon

Clause 45’s intent is to enable individuals to access justice prior to removal via the increase of the notice period. No reference, however, is made to how access to legal advice can be ensured or anticipated considering the extant impediments, namely, the fact that there is a restricted notice period time frame and access to legal aid depends on availability. Clause 24 of the Bill in this respect provides for up to 7 hours of civil legal services to those who have received a Priority Removal Notice (PRN) but those who do not fall under the PRN category, effective access to justice is not guaranteed merely by legislating for a statutory minimum period.

The 2021 Legal Aid Agency Directory of Providers and the Office of National Statistics data demonstrate that 63% of the population across England and Wales do not have access to an immigration and asylum legal aid provider. The data further suggests that on account of the Home Office’s dispersal policy, a mismatch between supply and demand is often observed with those in need of support housed in areas without legal aid provision. These are most likely the ramifications from 2010 when the Government reduced the legal aid budget to discourage cases from coming to court. To these ends, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made significant changes to civil legal aid which led to the phenomenon of so-called ‘legal aid deserts’. In the same context, Amnesty International UK concluded in its 2016 ‘Cuts that Hurt’ report, that access to justice has been significantly damaged. Cuts to legal aid continue to have ramifications based on the recent investigation by the Parliamentary and Health Service Ombudsman where three vulnerable people living in the UK were barred from accessing the justice system to challenge deportation orders because of conflicting government procedures and lengthy delays. 

By way of conclusion, the provisions of clause 45 allow for a greater window of access to justice where unjustified removals may be challenged and human rights abuses without legal challenge may be prevented. Nonetheless, both sections 10B and 10E obstruct the effectiveness of the clause. Overall, the Bill should be amended in a way that ensures the right to access justice is protected and guaranteed, removing ambiguous parts which make available a merely quasi-open and uncertain window to justice.

Vicky Kapogianni is a Lecturer at the Newcastle Law School.

(Suggested citation: V. Kapogianni, ‘Clause 45 of the Nationality and Borders Bill: A Quasi-Open Window of Access to Justice’, U.K. Const. L. Blog (24th February 2022) (available at https://ukconstitutionallaw.org/))