By Frances Webber
UK Border Agency (UKBA) proposals to remove more people from the country without giving them a realistic chance to challenge their removal are causing anger and concern.
Being forcibly removed from the country is a distressing and frightening experience. From 11 January 2010, it will be even more distressing and frightening for those people who will no longer have a chance of contacting their lawyer to challenge the removal.
The UKBA has announced that from that date it is to extend the 'exceptional' cases where the minimum 72 hours' notice usually given of a forced removal is reduced or withheld. The current exceptions to the 72-hour notice rule are certain children and certain people who UKBA has been told are at risk of committing suicide. These exceptions have already given rise to serious concern; the Immigration Law Practitioners' Association (ILPA) points out that the fact that someone is a child does not justify disregard of fairness.
ILPA's members have experience of cases where immigration judges found that the Home Office had made no real effort before removing children to ascertain that the country they intended to remove them to was safe. As for those at risk of suicide, common sense would suggest that the risk of suicide would be even greater for someone whose worst nightmare is realised while they can do nothing to stop it.
The current 72-hour notice rule was imposed following strong condemnation by judges of the Home Office resorting to trickery and devious tactics in order to deprive people of the opportunity to challenge their removal - including inviting people to 'interviews' where they are detained, and swooping on homes after working hours to detain families for removal early the following morning. The new categories of people who will not be given notice that they are about to be removed include those deemed to pose a credible risk of harm to other detainees if notified; those who have consented in writing to removal; 'exceptional cases where it is necessary to maintain the order and discipline of the Immigration Removal Centre'; those whose removal has been rescheduled following disruption or logistical difficulties; and those whose cases were stayed to await the result of a test case.
The proposals are likely to mark a return to the 'bad old days' - some of the reasons for giving no notice, particularly those referring to order and discipline, are highly subjective and clearly open to abuse by UKBA and removal centre staff. In addition, the proposal to remove with no notice those whose cases were stayed for the results of test cases is fraught with potential injustice.
Often, individuals waiting for a test case have other reasons for challenging the decision to remove, which are not submitted in advance to save lawyers' time and costs, because if the test case wins, deployment of these other reasons is unnecessary. The proposals will deprive these individuals of the possibility of putting forward these reasons, or force the lawyers to make lengthy and potentially unnecessary submissions on individual circumstances in advance, on a 'just in case' basis. Who will pay for the extra time needed for this?
Once removal has taken place, it is extremely difficult to bring people back, even if, exceptionally, a judge is prepared to order a return to the UK. Some of those who have been returned following unlawful removal, or who have been granted a last-minute reprieve by the High Court, have subsequently been recognised as refugees or as having strong human rights claims to stay in the UK. In such a situation, it is not far-fetched to compare removal to capital punishment. That is why, practitioners urge, UKBA impatience with what it perceives as delaying tactics must be weighed against the irrevocable nature and potentially disastrous consequences of removal.