The “family returns process” applies to all families with a dependent child or children (aged under 18) when the family is liable to be removed from the UK if they are categorised by the Home Office as one of the following:
- an illegal entrant
- someone who requires leave to enter or remain in the UK but does not have it
- someone facing deportation from the UK (usually following the serving of a criminal sentence)
- a person refused leave to enter or leave to remain
- a person who has been refused asylum and has asked for assistance in leaving the UK
You can read the Home Office guidance on the process here.
When do families enter this process?
Diagram showing the legal process post-refusal for asylum and human rights applicants. People applying for other types of immigration status may also enter the family returns process.
Families enter the family returns process if all in-country appeal rights have been exhausted and the family has no legal right to remain in the UK, and “any outstanding documentation or other barriers can be resolved in parallel with the returns process” OR
if a family has indicated that they wish to leave the UK voluntarily (under the assisted voluntary return for families and children scheme; or without assistance).
Once cases have been accepted into the process, they may be put on hold if the family no longer meets the criteria above , or if other barriers arise making the case unsuitable for continuing in the process.
The stages of the process
From this point, the Family Returns Process is divided into 3 stages:
1) Assisted return
This is the stage in which the family is invited to a family conference.
The Home Office have to give one week’s notice of the date of the family conference. At the conference, the “family engagement manager” from the Home Office is meant to discuss with the family what steps the family are making to depart the UK; and the options and support available for the family. This includes the “departure options” for the family, and the re-entry bans that apply to these options.
At the same time as serving the family with the invite to the family conference, the Home Office should serve them with a “notification of intention letter”. This letter informs the family that if they intend to apply for a judicial review to challenge their removal, they must do so within five days of receiving the notification of intention letter. If the letter is given to the family in person, the date of receipt is counted as being that day. If the letter is posted to the family, the date of receipt is counted as two working days after the date of the letter. The guidance makes clear that applying for a judicial review will not in itself be a barrier to removal.
After the family conference (allowing time for the family to “consider their options”), the family must attend a “family departures meeting”. At the departures meeting, the family engagement manager ascertains whether the family wants to depart voluntarily or not. If the family wants to voluntarily return, the Home Office either assists in arranged “assisted voluntarily return”, or if this is not an option for the family, the family engagement manager is supposed to discuss the family’s own arrangements and check that they have valid travel tickets etc.
If the family has said they do not want to return voluntarily, the Home Office inform the family that removal directions will be set. The family should be given seven days notice of the removal directions.
The family are then considered to be in the required return stage.
2) Required return
This is the stage at which the family is offered to take “self check-in removal directions”.
If these removal directions have already been booked at the time of the family departures meeting (see above), the family engagement manager “serves” the removal directions on the family during the meeting and should explain the process. If the removal directions are not served during the meeting, they are usually sent to the family within the next few days.
The removal directions must also be sent to the family’s lawyer, and social services (if they are involved with the family) at least one week before the scheduled removal.
3) Ensured return
If the self check-in removal does not take place, the family are then considered to be in the ensured return phase.
This might be because one or all of the family members does not turn up for the scheduled removal; or if the family had pursued further legal options in their case. For example, if after serving the self check-in removal directions, the family make an application for an “out-of-time appeal” (applying for an appeal beyond the 14 day deadline for submitting it – see more here) and therefore don’t comply with the removal directions, but then the tribunal refuse to extend the appeal deadline, the family are considered to be in the ensured return phase. Similarly, if the family don’t comply with the removal because they made further submissions or applied for permission for a judicial review, the Home Office might take the view that the submissions or grounds given had been, or could have been, raised earlier. In this situation, they will usually consider the family to be in the ensured return phase and only in exceptional circumstances would they issue a new set of self check-in removal directions (giving 72 hours notice).
It is at this point that the family are most at risk of being detained.
There are five ensured return ‘options’:
- escorted check in- without further notice
- escorted check in- with further full notice
- escorted check in- with limited notice
- return through open accommodation
- return through pre-departure accommodation [detention]
You can read more about all of these in the Home Office guidance document here.
The Home Office family engagement manager decides which of these five options is ‘suitable’ for the family and presents that as a return plan to the Independent Family Returns Panel (IFRP).
The Home Office should not take any action to remove the family until they have received advice from the panel.
Know your rights
- 28 day window. The Home Office must not make any attempt to remove (or require to leave) a family in the Family Returns Process for a period of 28 calendar days, starting from when any in-country appeal rights are exhausted.
- Victims of torture. Family members receiving ongoing regular treatment as a victim of torture may request delayed departure. The Home Office require a signed letter from the family member’s clinician to confirm the ongoing treatment, and will verify the situation through the person’s legal representative (or with the treatment centre directly if there is no legal representative). The Home Office may insist that the letter comes from a clinician at a specific torture treatment centre and/or the clinician demonstrate they have been trained in the Istanbul Protocol.
- Medical consent – each family member must be asked to sign the medical consent form (in the case of child members of the family, an adult member signs on their behalf). This form is then used to request information from medical practitioners to assess if there are any barriers to removal. The form is often given to people prior to the family conference or departure meeting stage, for example when they go for one of their regular reporting/signing events at the Home Office. The family may find that the GP, for example, is contacted by the Home Office even when the family’s legal case is ongoing (perhaps through a judicial review). The family have the right to refuse to sign the medical consent form.
- The best interests of any children in the family must have been considered. Read more here. Children will either be removed as a dependant of an adult family member, or if they “may be reasonably expected to accompany them”. In families where the parents are separated, there may be rights to consider around a child leaving the country without parental permission. This may be especially the case in families with a British national parent.
- If social services have been involved with the family, the Home Office must make contact with children’s or adult social services to identify any specific welfare needs within the family; discuss concerns, and “ensure removal remains appropriate”. As with medical practitioners, the family may find that the Home Office have contacted social services about removal/return even while they have an application, appeal or other legal process ongoing.
- There may be other barriers to removal. Read more here.
Check that the Home Office is following the procedure set out in their guidance (which you can read here).
Supporting a family in this process
There are lots of ways to support a family in the Family Returns Process.
- You may be able to provide legal support by giving legal information about the process (not advice about their specific case), explaining technical language, or recognising documents issued by the Home Office. Read more here.
- Help explain the legal process that may be available to the family, such as an out-of-time appeal, judicial reviews or further submissions (remember – you cannot advise a family to take one of these options, but you can explain what these phrases mean and what they entail). See the Right to Remain Toolkit for more information on these legal processes.
- Help communicate with the family’s legal representative if the family are finding it difficult (or help them seek a lawyer if they are not currently represented).
- If a family would like to attend any meetings with the Home Office without their children, you might be able to assist with child care.
- Be present at home visits if the family would like you to be there.
- Help people make photocopies of necessary documents.
Thank you to Edie Shillue for assisting with this post.