Being ‘liable to removal’ or ‘liable to deportation’ and Notices
Up until 2019, the Home Office operated a policy whereby someone who has been told they are “liable to removal” (and who has not successfully appealed this decision), could be removed within a three month “removal window”. During this removal window, the Home Office could remove the person with just 72 hours notice if they were in detention and 7 days notice if they were not detained.
This policy was successfully challenged by Medical Justice [1] and by an individual claimant, FB [2] and found to be unlawful because it led to an unacceptable risk of preventing access to justice and access to the courts to challenge relevant decisions. The three month removal window has since been suspended.
It is now a legal requirement that someone has a minimum of five days’ notice between being given notice of removal and the removal date.
The updated Enforced Removals guidance [3] sets out the three step removal decision process. This is that someone should receive a Notice of a liability to remove (NOL); Notice of intent to remove (NIR) and Notice of departure details (NDD). The NOL tells the person that they are liable to be removed and the reason why they do not have permission to stay in the UK (sample wording for the reason is included in the guidance). The NIR is the point at which the 5 day minimum period is in place and tells the person that the SSHD intends to remove them, the destination and their notice period to seek legal advice prior to removal. This will usually be served with the NDD which includes the date of removal, route and destination.
For people who the Home Office wants to deport from the UK, the ‘Deportation Decision Letter’ starts the notice period for removal, during which they may not be removed. The decision letter should inform the person that they can appeal the decision and the period in which to do this.
What circumstances mean that a person should not be removed from the UK?
There are certain circumstances under which the Home Office should not remove a person, including but not limited to the following:
Anyone with a pending asylum claim, other than third country cases.
Anyone who has submitted a fresh claim, but where a decision has not yet been taken about whether it will be considered as a fresh claim.
People who are waiting for certain types of immigration appeal to be heard.
People who are waiting for other types of legal appeals to be heard, such as cases before the family court.
What can be done to stop removal?
An appeal can be made after receiving a Notice of Liability to remove. Someone cannot be removed after receiving Notice of Liability to remove and before receiving Notice of Intent to Remove.
Where judicial review proceedings are brought this may suspend removal.
Anyone with an injunction preventing their removal from the UK. An injunction is an order issued by a court requiring a party to i) do something or ii) not to do something. An injunction will not be granted simply to keep someone from being removed, but to keep them from being removed in order that a representation or an application can be examined by a court.
The removal of an individual from the UK can be stopped even in the final moments of the process, so long as the aircraft is still on the ground with the doors open. In a small number of cases where a court has determined that the Home Office removed someone unlawfully, that person must be brought back to the UK.
As a visitor, and without all the facts in the case, it can be difficult to know what a person’s circumstances are. Those who are given a notice of liability to removal should be encouraged to immediately seek immigration legal advice, or contact their solicitor or OISC Level 3 advisor without delay. Visitors should not be tempted to advise someone facing removal, beyond helping them to find an immigration legal advisor as a matter of urgency (see Legal Advice and Representation). Incorrect or incomplete advice in relation to removal may have permanent and life-changing consequences.
Resource tip Right To Remain have some clear and detailed information on Judicial Reviews and injunctions, among other things, in their online Toolkit. This material provides helpful background reading for visitors. Pages can be printed off to give to someone in detention. The Toolkit can be accessed here: https://righttoremain.org.uk/toolkit/ |
https://www.duncanlewis.co.uk/Reported_Case/Court_of_Appeal_declares_the_Secretary_of_State_for_the_Home_Department%E2%80%99s_removal_policy_is_unlawful_%E2%80%93_breaches_the_constitutional_right_of_access_to_justice__(21_October_2020).html
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