At the week I was, as often is the case as a direct access immigration barrister, called upon to make a telephone injunction in order to prevent someone being removed from the United Kingdom. This case, like the last one, was successful, however the removal directions were cancelled with some four hours to go before the flight was scheduled to leave.
The case was unusual, but not unique, in that that the Applicant in this case had an outstanding appeal. The background is as follows. The Applicant had come into the United Kingdom lawfully as a student and met and was due to marry an EU national. At their wedding the HO arrested both of them. If this was not shocking enough, given that this is plainly a genuine relationship, the Secretary of State compounded the illegality by detaining both parties and setting removal directions for the non EU national as well as serving enforcement papers on the EU national.
The Applicant lodged an appeal. The appeal carried with it by virtue of, inter alia, Regulations 26 of the Immigration (EEA) Regulations 2006, Sections 82, 84, 92 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), an in country right of appeal. Section 78 of the 2002 Act makes it illegal for the Secretary of State to remove someone while they have an appeal outstanding.
Notwithstanding that the appeal had been lodged and several letters sent threatening judicial proceedings the Secretary of State not only set removal directions but sought to enforce them on Saturday evening.
As a result of the Secretary of State’s actions judicial review proceedings were lodged on Thursday. This should have had the effect of cancelling the removal directions as per the Secretary of State’s own guidance (Section 6 of Chapter 60 of the Enforcement Instruction Guidance).
The Secretary of State however refused to cancel the removal directions and stated that the case would only be reviewed at 1600 which was 2 hours prior to the departure time.
This was plainly not sufficient time to properly obtain an injunction by telephone and was liable to lead to a complaint should the Judge consider that the application had been left too late.
I proceeded to draft submissions to support the telephone injunction and called the out of hours number. The clerk to the Judge was very helpful and at around 1400 the Secretary of State finally accepted that the removal could not lawfully proceed and cancelled the removal directions.
It seems clear to me given the current hardened position adopted by the Secretary of State that it was highly likely that had not the judicial review claim been lodged and had not the telephone injunction been commenced that the client would have been removed.
A further consequence it seems to me is that the client was arguably unlawfully detained prior to effect his removal. The law is quite clear in this regard, detention is only lawful in circumstances where it is for a proper purpose. In this case he was being detained to enforce his removal in circumstances where he could not be lawfully removed. I have noticed a pattern in this regard and will post further on this issue, unlawful detention, in the next few days.
I would urge anyone who is facing removal in this sort of case or indeed any sort of case or the family member of anyone to obtain prompt and proper legal advice. I am available at all times to deal with this sort of crisis and am always happy to help if I can.
Paul Turner is a highly regarded direct access immigration barrister practising from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.