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Fast track deportation without access to legal counsel is illegal

BMJ 2010; 341 doi: https://doi.org/10.1136/bmj.c4072 (Published 27 July 2010) Cite this as: BMJ 2010;341:c4072
  1. Clare Dyer
  1. 1BMJ

    The UK government’s policy of fast track removal of some failed asylum seekers, including unaccompanied children, is illegal because it denies them access to justice, the High Court has ruled.

    The ruling is a victory for Medical Justice, a charity that provides independent medical and legal advice to detainees in immigration centres, which sought judicial review of the policy.

    Medical Justice claimed that the UK Border Agency was increasingly making use of the policy it introduced in March 2007 and extended in January this year. The general policy is to give 72 hours’ notice of removal, but the “exceptions” policy allowed the agency to deport some failed applicants with little or no notice, including unaccompanied children who might abscond because they cannot be detained, and people at risk of suicide.

    The agency said it was using the exceptions policy rarely and that its use was highly monitored, but it emerged during the hearing that monitoring reports were no longer being produced. One agency representative said in his witness statement, “I can only assume that responsibility for producing the [monitoring] reports was overlooked following this latest restructuring.”

    Mr Justice Silber quashed the policy on the grounds that it contained no safeguards to ensure that those subjected to it were able to access legal counsel. It was likely to be impossible for those removed at short notice to contact a lawyer and organise a court application to challenge their removal, he noted.

    “The stark fact is that there is no provision which states that removal will be deferred where a person subject to the 2010 exceptions could not conceivably have been able to obtain legal advice—or even where that person has made all reasonable efforts to obtain legal advice and access to the courts but nevertheless has been unable to do so in the very limited time available,” the judge said.

    Emma Ginn, coordinator for Medical Justice, said, “We are delighted with the decision. It felt like the policy was designed to remove vulnerable people from the country in a way that denied them any real chance to speak to a lawyer. Quite apart from the affront to justice, the cost in human misery was a source of shame. It feels like the UK Border Agency chanced their arm to see what they could get away with, in the knowledge that many vulnerable victims’ voices would not be heard in the middle of the night.”

    A Home Office spokesman said, “We are disappointed with the court’s judgment, and we will be appealing. The policy of making limited exceptions to 72 hour notification of immigration removal has been an important element of our management of removals. The government remains committed to removing individuals with no right to be in the UK as quickly as possible.”

    Notes

    Cite this as: BMJ 2010;341:c4072

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