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Yet more unlawfulness

Yet more unlawfulness

The Government’s disregard for the rule of law grows more and more alarming. I confine myself on this blog to immigration and asylum law, perhaps the most blatant area of disregard for the rule of law, but other examples abound in the news at the moment.

The latest example in our little world is DSO 07/2008. This is a Detention Services Order. As with many DSOs, it is unpublished (other than in the latest ILPA mailing). It provides for an exception to the normal 72 hours notice of removal rule. Its existence emerged during an unreported case earlier this month, X v SSHD, heard by Mr Justice Newman. Link to judgment to follow when available.

rmj_logoNotice of removal is needed because of the right to legal advice and access to the courts. It is particularly important where a detainee is running a fresh claim for asylum, as he or she still has an outstanding legal case. Thus is was with X, who was given no notice of removal at all, when taken from his room was told it was for the purpose of interview, had his phone taken away from him and was promptly bundled onto a plane. His lawyers (then RLC, now RMJ: see previous post on this transmogrification) found out the next day, after his arrival in his home country. Treasury Solicitors conceded that the removal was unlawful (tragic in itself that it is such a blatant case) but resisted an order to bring X back to the UK. They lost, and the order was made. I’ve no idea whether this happened or not, as apparently he was detained and mistreated on arrival in his home country.

Mr Justice Newman found apparently found that that the reliance on an unpublished policy was unlawful, the policy obviously did not apply to X anyway, there had been a deliberate attempt to mislead X and his lawyers and X did have a claim that was worth pursuing. That is a pretty comprehensive and damning series of findings.

The key part of DSO7/2008 is as follows:

“11. An exception to the minimum 72 hour notification period (3 working days int he case of TCU and NSA cases) may be made in the following circumstances:

(a) The detainee (or a member of his/her family who is also detained) is subject to an open Assessment, Care in Detention and Teamwork (ACDT) procedure and is considered to be at risk of either potential suicide or other self harm;

(b) The detainee (or a member of his/her family who is also detained) has a history of non-compliance either with the operator and/or the UK Border Agency and there is strong evidence to suggest that an attempt to remove him/her with advance notification poses a risk to good order and discipline of the Centre which cannot be managed effectively in another way. In such circumstances, the detainee should normally be removed from association 24-48 hours in advance of removal. Removal Directions should then be served by a member of the UK Border Agency team in the Immigration Removal Centre as soon as possible. Only in very disruptive cases or where it is not possible to remove the individual from association (e.g. a family where there are no suitable rooms available) should removal directions be withheld completely.”

I’d heard of exception (a) before, which although logically and medically dubious is already reflected in published policies. Exception (b) is definitely new.

Do the Home Office care that they break the law so grossly and so often? It seems not, as there is certainly no effective internal action to stop such things from happening. The pathetic emails between civil servants recorded in the Abdi and Others judgment (“maybe this is unlawful?” “my bad! so it is” “shall we tell the minister?” “I think not”) suggest a culture of acceptance that the Home Office acts unlawfully.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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