Who are these litigious migrants?
David Cameron has announced plans to clamp down on “completely pointless” judicial reviews. The court system apparently allows “hopeless cases” to clog up the court system. The “smart people in Whitehall”, he believes, should be allowed to get on with governing without such interference from the courts.
More surprising than the government’s hostility to judicial oversight is Cameron’s coyness in presenting the changes as a business-friendly assault on planning red-tape, when the reality is that over two thirds of judicial reviews are in immigration and asylum cases. Refused migrants – who could be a better principal target for changes that will reduce everyone’s protection from bad government decision-making?
A clue to this presentational enigma lies in a report published just three days later by John Vine, the Chief Inspector of Borders and Immigration. Vine’s scathing description of the UK Border Agency’s chaotic handling of the backlog of “legacy” asylum cases led even a Home Office spokesperson to describe the UKBA, unsupportively, as “a troubled organisation with a poor record of delivery.” In this context, Cameron’s assumptions of good decision-making throughout government look rather shakier.
Who are these litigious migrants, causing such a strain to the justice system? One of them is Jay. I first spoke to him by telephone last year, when he was on the steps of a chartered aircraft that was being loaded up with Tamil asylum seekers for removal to Sri Lanka. Jay sounded shaken. We had both seen the well-documented reports of imprisonment and torture of Tamils forcibly returned to Sri Lanka.
But he had another reason for shock at his situation. As he told me, in an East London accent, he has not been to Sri Lanka since he was five years old, 27 years ago. Primary school, secondary school, and his whole adult life were spent in London. His whole family have British passports. Jay developed a drug habit, however, and committed a series of non-violent petty offences to feed his addiction. After he finished his last sentence, he suddenly discovered that he was not British after all.
He felt that “the government is trying to rip me away from my home and my family. My whole family were crying when they came to visit me on the night before I was supposed to leave. And I was so worried that my Gran would pass away and I wouldn’t be able to see her again. It was like a kidnap.”
The attempt to deport Jay was unlawful. He had made a fresh claim and was still waiting for a response at the time that he was detained, so could not legally be deported. His fresh claim had not been registered on the Home Office’s system – John Vine discovered 14,800 unopened recorded delivery letters during his inspection.
Jay was taken off the flight because his solicitor made a last minute judicial review and obtained an injunction preventing his deportation. “It was all very dramatic, as I was being frog-marched up the stairs to the airplane a guy came running up waving a piece of paper.”
The stakes were even higher for another beneficiary of the judicial review system, “BA”. He was detained last year for deportation, despite having developed a serious mental health condition while serving a prison sentence for a non-violent first offence. The judgment of the High Court describes how “a cacophony of professional voices expressed the view… that he was unfit to be detained.” BA’s mental health led him to stop taking fluids, and he came so close to death that the healthcare manager in the detention centre warned UKBA that an end of life care plan was being opened.
Nevertheless, the UKBA continued to maintain his detention. Once again, it was a judicial review that secured his release after nine months in detention, and saved his life. The High Court described “a deplorable failure, from the outset, by those responsible for BA’s detention to recognise the nature and extent of BA’s illness.” The Court found BA’s detention to be not merely unlawful, but inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.
These stories are not exceptional. My organisation, Detention Action, works every day with people whose liberty, whose hopes of avoiding deportation to potential torture, hang on the outcomes of judicial reviews. Emergency judicial reviews, and the work of immigration lawyers in general, are easy to malign. If we had a fair, impartial and transparent immigration system, they might not be so vital, and certainly would not be so well-used. Yet they must remain an essential safeguard. Migrants facing detention and removal are more directly exposed to the vagaries of government decision-making than anyone else. They are unpopular, and the temptation will always exist to reduce their access to justice. Yet the consequences for them of the government getting it wrong are catastrophic.
Today Jay is back at home with his family. His fresh claim was successful in the courts, and his leave to remain in the UK has been restored. But he is still upset at the emotional rollercoaster that he and his family went through. “My dad had to scrape together £4,000 that they didn’t have to prove something that the Home Office already knew. It was only because of judicial reviews in the fairest courts in the land that the flight was stopped. If it wasn’t for a judicial review, I would be in Sri Lanka now.”
This article first appeared on The Justice Gap