At the end of May, the Home Office issued an amended version of their Enforcement Guidance and Instructions.
A new section was added to Chapter 60, “Judicial Review and injunctions” in response to a legal challenge by Duncan Lewis Solicitors which argues (the case is still ongoing and the amendments made reflect concessions made by the Home Office in April) that the removals policy is “ultra vires, unless it contains sufficient flexibility to cater for individual cases as well as guaranteeing the right of access to legal representation and the courts to challenge removal.” Ultra vires means going beyond the scope of its powers.
What is a removal notice period?
You are at risk of removal if you do not have any leave to remain in the UK and haven’t applied for any; if your asylum or immigration application is refused; or the leave you had has expired.
The Home Office must give you notice that you are liable to removal, and cannot lawfully remove you during this notice period.
The general notice period is seven calendar days if you are not detained, or just 72 hours if you are detained. The 72 hours must include at least two working days.
In cases where a removal window is being used, once the notice period is over the three month removal window begins and you can be removed, without notice, at any point during it.
What does the amended guidance say?
The amended guidance has a new section (pages 14-16) called: “Consideration of deferral of notice period”. It gives guidance on when staff should consider deferring the removal window – i.e. allowing more time to access lawyers or the courts before the period starts when you can be removed without notice.
The section says:
“Whether or not they are detained, individuals must be allowed a reasonable opportunity to access legal advice and have recourse to the courts. The purpose of the notice period is to enable individuals to seek legal advice. If, during the notice period, an unrepresented person is yet to instruct a legal representative you must always consider deferring the removal window for an additional period …
Each case for deferral must be considered on its individual merits. The key consideration is whether the person has had a reasonable opportunity to access legal advice and recourse to the courts.”
A change in legal representatives may be reason to consider a deferral of a removal window, if someone has “unavoidably” lost contact with previous representatives.
On people in detention:
“Generally speaking, if an unrepresented person (in detention) wishes to obtain legal advice and cannot be given an appointment at an LAA advice surgery within the initial 72-hours notice period, the removal window should normally be deferred to enable an appointment to be arranged.”
Access to relevant documentation is also a factor listed for consideration. The guidance suggests this could particularly be considered in cases when there has been a change of legal representative and when the person does not have ready access to their documents, “because they have been detained at a reporting event or they have been outside the UK for a significant period”.
It’s useful to be aware of this document in case you wish to argue for deferral of a removal window and you don’t think the Home Office has been following it’s own guidance.