What Might Be In The Government’s Plan To Tackle Abusive Legal Claims By Activist Lawyers?

The Home Office is on the verge of releasing its plan to reform asylum rules to deter vexatious legal claims by activist lawyers and those with no right to be in the UK who are attempting to stave off their removal.

The public has learned about these plans in nuggets released to the press in the months since Autumn 2020.

The government’s rhetoric has been particularly focused at taking action to ensure that more planned removals of foreign criminals from UK soil are successful despite the avalanche of actions taken by legal representatives to try and obstruct such returns.

Only this week, a top civil servant at the Home Office told MPs: “We [will] continue to secure the removal of those who are here unlawfully, many of whom present [a] risk to the public…”

In October 2020 the Home Secretary promised: “We will stop the abuse of the broken system… we will stop those who come here illegally making endless legal claims to remain… we will expedite the removal of those who have no claim for protection” (see report).

A Telegraph report stated in December that murderers and rapists may be prevented from claiming asylum and Ms Patel also indicated that asylum will be “streamlined” to prevent people making multiple claims that can be lodged and heard hours or even minutes before their removal. 

The exploitation of the judicial review route is also often the cause of perniciously-obstructed removals. An appeal court provoked fury in Government last year by blocking the deportation of 25 foreign-born convicted criminals to Jamaica after their lawyers sought a judicial review. Accordingly, Downing Street signalled last year that it wanted to limit its scope.

This week Robert Buckland, the justice secretary, announced proposals to stop the automatic referral of judicial review cases to senior judges. It comes after an official review found that only 0.2 per cent of 5,500 judicial review cases since 2012 were successful, with the majority being immigration and asylum cases. It is not immediately clear what impact this move would have however.

New figures released from the Home Office this week also show that about a quarter of FNOs in detention take advantage of the eight legal avenues that are open to those in detention, and that this can lead to them being released.

  • 335 claimed asylum in 2019
  • 115 made further submissions
  • 536 appealed,
  • 397 started Judicial Review proceedings
  • 182 who claimed modern slavery etc
  • 565 were subject to a medical-legal report
  • 219 physically disrupted their return (acknowledged not to be a ‘legal’ avenue)
  • The vast majority of these various claims were denied. Despite this it appears the claims are often being used as a means of delay and obstruction, and often succeeding in doing so.

Too often planned return flights are cancelled due to late legal challenges, including spurious claims by those who are simply seeking to delay or obstruct their removal. Previously this was linked to EU rules such as the cumbersome Dublin Convention. According to Article 29(1) there is a 6-month time limit for return of individuals under the “take back” procedure.

For example, a Home Office flight bound for Spain carrying 23 illegal entrants was abandoned on 26 August 2020 due to last minute legal challenges which led to removal being rescheduled. This can effectively result in the timing out of a return.

Yet returns may also be obstructed by human rights claims including under the European Convention on Human Rights (ECHR), e.g. Article 3 and Article 8. Some people claim that traffickers will threaten or harm them if they go back to France / Germany and some say camp or accommodation facilities in Greece or Spain are not up to standard. However, ECHR provisions have too often been the subject of abusive claims, including by those who pose a risk to the public.

However, a Home Office minister was also reported as saying last month that there may be a crackdown on asylum claimants who exploit Article 3 of the European Convention on Human Rights to avoid being deported to “safe” countries like Greece by claiming they face “inhuman and degrading” treatment.

If so this would be welcome as the ECHR was not meant to be used by those who may pose a risk to the UK public who are trying to stop their removal to safe countries.

17th March 2021 - Asylum, Current Affairs, Legal Matters, Migration Trends, Policy

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