Written by Emma Ginn
Update on Medical Justice Judicial Review
A High Court judge ordered the UKBA to stop removing foreign nationals from the UK with little or no warning after individuals were denied access to justice in the process.
Immigration officers have descended on vulnerable people late at night and transported them under guard to early morning flights a few hours later. Medical Justice, a charity that provides independent medical advice to immigration detainees, claims that some people were not able to contact a legal representative and challenge their removal. Mr Nyam, a seriously ill man, was arrested last month for removal to Cameroon in a manner that a judge described as “completely unconscionable” (see case-study below).
Represented by the Public Law Project, Medical Justice is challenging the UK Border Agency’s policy that allows the standard 72 hours notice of removal directions to be reduced to little or no notice for certain categories of cases, including where there is medical documentation indicating that prior notice will create a risk of suicide or self harm and where standard notification is “not in the best interests” of an unaccompanied child due to an abscond risk.
At a preliminary oral hearing on Friday 21st May 2010 in the High Court, Mr Justice Cranston ordered the UKBA to suspend its use of the policy.
The UKBA claim that their policy has safeguards built in that ensure the removee has access to justice. Medical Justice cited a number of cases where the safeguards were inadequate or simply denied to the removee. It was also noted that an Equality Impact Assessment of the policy had candidly acknowledged that the possibility of a removee lodging a judicial review in time was not available.
T, an unaccompanied minor, had been forced to earn a living by prostitution in Italy and had been raped there and in Libya. She came from Italy to the UK when she was 15 years old. She was removed back to Italy in order that, under the Dublin Regulations, her asylum claim be considered there. She was given no notice of the removal. According to Mr Justice Collins, “she was descended upon by a posse of enforcement officers at 4 o clock in the morning, no doubt aroused from sleep; was bundled out and taken straight to the airport, and was given no opportunity whatever of contacting anyone.”
One Medical Justice client was removed with no notice and the UKBA was not even applying the policy. The man’s barrister, Jan Doerfel, secured a High Court order to have the man brought back to the UK.
Reported by the Guardian : “The policy has attracted controversy before. In September 2008, a Ugandan man who claimed asylum because he said his homosexuality jeopardised his safety in his home country was deported without notice, a decision a high court judge later described as “completely wrong headed”. The man won the right to return and was subsequently given asylum.”
“It’s difficult to avoid the conclusion that behind the policy is the desire to prevent people having access to their lawyer before they are removed.” (as reported by the Guardian)
Steve Symonds – Immigration Law Practitioners’ Association
“The policy of providing zero notice by UKBA in the issuing of removal directions is clearly in opposition to the principles governing natural justice. In such matters the UKBA policy has been to justify such action on the basis that it is in the medical best interest of the person being removed. It appears, that under pressure of targets set UKBA are abusing the system in the aim of increasing removals by simply acting in a fashion where legal representation is often impracticable and impossible to obtain.”
Hani Zubeidi, Fadiga & Co Solicitors – Mr Nyam’s legal representative
“The taking of people from their beds in the middle of the night for removal is something one would associate with totalitarian regimes, not with a country which prides itself on its legal institutions. It is exactly the rule of law which the Secretary of State for the Home Department sought to exclude by removing people in the middle of the night so that they cannot reach their lawyers and cannot contact the courts. It is particularly shameful that this policy was being applied to particularly vulnerable groups such as those at risk of suicide and self-harm, and unaccompanied children – i.e. persons in need of special care and attention – not less.”
Jan Doerfel – barrister acting in Mr Nyam’s case
“Quite apart from the affront to justice, the cost in human misery is a source of shame. Though the ones who pay the highest price are those subjected to this unimaginably cruel procedure, it does not go unnoticed that the seeming belligerence of the Home Office must have cost the public purse significantly ; abandoning removal attempts, bring deportees back to the UK, and the legal fees of avoidable legal proceedings to name but a few. It looks like the UKBA is somewhat out of control and does not feel the need to be accountable. It feels like they chance their arm and see what they can get away with, in the knowledge that many vulnerable victims’ voices will not be heard in the middle of the night. UKBA paints the picture that all subjected to this policy are “appeal rights exhausted” and any last-minute appeals are simply vexatious, yet any number of our clients have been granted status after having made last-minute appeals for perfectly valid reasons, such as changed circumstances including health condition, situation in their country or origin, or availability of new evidence.”
Emma Ginn, Co-ordinator, Medical Justice
About Medical Justice
Medical Justice is a small charity with 3 staff and acts as a network of volunteer medics, solicitors, barristers, ex-detainees, and detainee visitors who arrange for independent doctors to visit men, women, children and torture victims, in 11 immigration removal centres around the UK. In response to medical abuse we have exposed, and with evidence from our case-work, we seek policy changes to secure lasting improvements for immigration detainees.
Case-study : Mr Nyam
Mr Nyam (photo left) suffers from a severe form of sickle cell disease, leading to vaso-occlusive crises which require hospitalisation. Frequent crises can starve joints and vital organs of their blood supply, leaving permanent and irreversible damage. The more frequent the crises, the higher the risk of such an outcome. He already has severe damage to both shoulders.
Mr Nyam is currently being treated with Hydroxyurea, a powerful drug which can reduce the severity of sickle cell disease but has serious side effects, he therefore needs frequent tests at a haematology clinic.
Mr Nyam has been detained several times with a view to removal from the UK. 10 removal attempts have been abandoned, mostly because Mr Nyam ended up being hospitalised. During one period of detention he was hospitaised six times before he was eventually released. He was hospitalised three times during a subsequent period of detention, which had continued even when no removal directions were in place.
Mr Nyam’s solicitors sent the UKBA a report by Mr Nyam’s consultant haematologist which noted that he was not fit to fly, and was not receiving care in detention that met established clinical standards. One medical report made it clear that Mr Nyam had suffered far more frequent and severe vaso-occlusive crises when detained than he did when he was not detained. The report also documented that it is recognised that psychological stress can trigger these crises, and that Mr Nyam’s restricted access to appropriate analgesia in detention may prevent the successful management of a minor crisis, resulting in it progressing to a major crisis necessitating hospital admission.
Given the well-known potential effects of such crises (destruction of joints, damage to lungs and heart, and brain damage) it is plain that Mr Nyam’s health is likely to be injuriously affected by continued detention. Despite having a legal case pending regarding unlawful detention, the UKBA attempted to Mr Nyam most recently on 27th Aril 2010.
Snatched in the middle of the night – deliberate attempt to deny Mr Nyam access to justice ?
Mr Nyam has been subjected to the no notice removal policy a number of times, most recently on the 27th April 2010 ; he was arrested at 10.30pm with a view to his removal at 6.30 a.m. on the following morning. During his arrest/detention and during his subsequent transfer from Leeds to Heathrow airport, Mr Nyam had expressly asked to speak to his solicitor but this was denied. His mobile phone was taken away.
Luckily a friend of Mr Nyam’s who was with him at the time managed to text his solicitor whose mobile phone, luckily, happened to be switched on and the solicitor was, also luckily, available. By luck, he in turn managed to instruct Counsel and an injunction was granted at 1.30 a.m. on 28th April 2010 by Openshaw J who called the manner of the deportation “completely unconscionable”.
Mr Nyam’s solicitor – Hani Zubeidi of Fadiga & Co – said ; “It was pure chance that I was up late working on another case and received the call. Otherwise I’d have got to the office the next day to find my client had already left the UK without me knowing about it.”
Mr Doerfel argues that the policy was implemented despite Mr Nyam not falling into one of the applicable categories, that the so-called safeguards ensuring access to justice were not applied, and that the prevention of malaria prophylaxis provision could have constituted a risk to life had the removal gone ahead as the UKBA had planned.
Mr Nyam’s lawyers argue that the policy was falsely applied
Mr Nyam’s lawyers argue that his medical condition is not covered by any of categories in the policy. Regarding Mr Nyam, the UKBA mentioned the “medically documented” category of deportees for whom service of removal directions will create a risk of suicide or self harm. Yet there is no risk of suicide or self-harm which has been medically documented in Mr Nyam’s case. In fact, it is the UKBA’s case that Mr Nyam has himself not evidenced that he is suffering from any psychiatric disorder or provided a report about his mental health.
The Home Office failed to effect safeguards they claim ensure access to justice
According to the policy, immigration officials must let the legal representatives know by fax as soon as the removee is told and where possible bring the matter to the attention of the legal representatives. However, Mr Nyam was told that he would be removed around 11.25 pm, yet the removal directions were faxed to his solicitor’s (empty) offices at 00:37 am and the removal was not brought to the solicitor’s attention.
The policy states that the immigration officer must allow the individual to speak to their legal representative and that may involve providing the removee with a mobile telephone. Yet Mr Nyam was not allowed to speak to his legal representative.
According to the policy, where possiblem the removal must be scheduled for a working day, during office hours. This was not the case for Mr Nyam’s latest removal attempt and there is no rational reason why this was not possible.
Mr Nyam’s lawyers argue that clearly, a deliberate decision was made to try and remove him outside office hours to hinder access to his legal representative and the courts, thereby denying him access to justice. It was only by luck that Mr Nyam was able to contact his solicitor.
No malaria prophylaxis provision could have constituted a risk to life
Mr Nyam’s lawyers argue that his removal was also unlawful as it was in breach of an undertaking by the Home Office to allow Mr Nyam to take malaria prophylaxis, as well as being in breach of their own policy regarding the provision of malaria prophylaxis. In Mr Nyam’s case, effective malaria prophylaxis would need be taken at least 48 hours in advance of arrival in Cameroon.
Mr Nyam’s consultant haematologist had set out to the Home Office the particular and grave risk to Mr Nyam’s health if he were to be removed without relevant malaria prophylaxis ; “Sickle cell disease and malaria are conditions that can cause intra-vascular haemolysis (red cell breakdown within the circulation) and there is the potential for a life threatening event should he contract malaria”.
Mr Nyam had malaria prophylaxis in his home but not having had any previous notice of removal, he was not, however, in a position to start taking the tablets. Neither was he provided with specialist advice as someone with medical conditions as required by Home Office policy.
The Home Office attempted to remove Mr Nyam to Cameroon despite being fully aware that the policy was under challenge within the High Court.
Contact – Emma Ginn on firstname.lastname@example.org 07904 778365
Guardian : “Judge orders Home Office to stop deportations without warning” – 25/05/10
“Policy of denying people access to justice before they are removed challenged by campaign group. A high court judge has ordered the Home Office to halt the deportation of foreign nationals with almost no warning after a legal challenge argued the process denies people access to justice before they are removed.”
26 July 2010