Migrants are denied the right of access to the court if they are given under 72 hours’ notice of their removal from the UK, the Court of Appeal ruled yesterday. The judgment frustrates the UK Border Agency’s aim to win permission for zero-notice removals.

In an ex tempore judgment read by Lord Justice Sullivan, sitting with the Master of the Rolls and Lord Justice Maurice Kay, the Court of Appeal dismissed UKBA’s appeal against the decision of the High Court to allow a claim for judicial review by the charity, Medical Justice.

The case bought by Medical Justice challenged the lawfulness of exceptions to UKBA’s general policy that requires at least 72 hours’ notice to be given to immigrants of their removal.

The policy, which came into effect in January 2010, allowed certain individuals who had made unsuccessful claims to enter or remain in the UK, to be issued removal directions with little or no notice of their removal.

In the High Court in July 2010, Mr Justice Silber quashed the exceptions to the policy. He agreed with Medical Justice that the policy fails to ensure that the person subject to removal will have access to justice, because they would have no realistic chance of asking the court to intervene to stop the removal where it was unlawful.

Silber said: ‘The effect of the 2010 exceptions is that in removal, it is frequently almost impossible that somebody served with removal directions will be able to find a lawyer who would be ready, willing and able to provide legal advice within the time available prior to their removal.

‘There is a very high risk, if not an inevitability, that the right of access to justice is and will be infringed,’ he said.

The judge took account of the witness statement from the Law Society’s director of legal policy Mark Stobbs, submitted in support of Medical Justice.

Stobbs highlighted the impact of changes to the legal aid system, which have resulted in a significant decline in the number of lawyers available to give immigration and asylum advice - adding to the difficulty of obtaining legal advice if the 2010 exceptions were applied.

He also noted the demise of Refugee Migrant Justice and the Immigration Advisory Service, which were two of the biggest advice providers.

Following the High Court’s ruling, the home secretary, on behalf of UKBA, appealed in relation to the ‘consent’ exception, arguing that migrants who consented to removal from the UK had in effect waived their right to legal advice and did not require 72 hours’ notice.

In a second statement submitted on behalf of the Society, Stobbs told the appeal court that consent has to be real and therefore properly informed by legal advice, particularly when it means that the individual is withdrawing outstanding court challenges.

He said it is unsafe for UKBA to rely upon that consent unless it is properly informed, and that it is in its own interest to ensure that consent is properly given and recorded.

The Court of Appeal ruled that migrants have the common law right to access the court to challenge the legality of their removal, and that less than 72 hours’ notice was insufficient to enable them to access legal advice and make that right effective.

The consequence of the judgment is that, save in relation to port cases, at least 72 hours’ notice of removal must be given.

Commenting, Law Society chief executive Desmond Hudson said the Court of Appeal stood above the criticisms made by politicians and elements of the media about the courts’ intervention in immigration cases.

He said: ‘This case shows the need for the courts to protect the rights of the individual, whether an immigrant or anyone else, to have access to legal advice.

‘UKBA’s failure to observe its own procedural safeguards, to take steps to ensure that consent was informed, and to keep proper records undermined its position, leading not only to today’s challenge but in some cases to migrants having been removed then being returned to this country at the taxpayer’s expense,’ he said.

A Home Office spokesman said the department is considering the decision. The written judgment of the Court of Appeal is not expected for several weeks.

Justin Leslie, a barrister leading the judicial review working group at Medical Justice, said: 'The Court of Appeal's judgment strongly reaffirms the necessity of having the opportunity to access effective legal advice. Lord Justice Sullivan was clear about the proven risk of injustice in the Home Office's policy of providing no notice before removing someone from the UK.

'This case was about the application of a basic constitutional principle - giving everyone, especially the most vulnerable, a realistic opportunity to challenge the legality of decisions made in often desperate circumstances. The Court of Appeal's decision will help many people, such as those detainees suffering from medical conditions exacerbated by the immigration detention system.

'We are delighted that the decision will benefit this group of people which Medical Justice exists to help.'

Read the High Court’s earlier ruling.