Overview of Removal Challenges
A proposed removal from the UK may sometimes be challenged where there is a legal basis preventing or questioning removal.
The appropriate challenge depends on the person’s immigration history, the decision already made, any available appeal rights and the evidence supporting the case.
A removal challenge should be dealt with urgently where removal directions have been issued because the available time to take action may be limited.
When Can Removal Be Challenged?
There is no single procedure for challenging every removal decision.
The appropriate route may involve an immigration appeal, a human rights claim, further submissions, an administrative process or judicial review.
For example, an individual may have a right of appeal against an immigration decision where the relevant statutory conditions are met. The First-tier Tribunal deals with eligible immigration and asylum appeals.
In other cases, there may be no right of appeal and another legal route must be considered.
New Evidence and Further Submissions
New evidence can sometimes affect whether removal should proceed.
Where an individual has previously made an asylum or protection claim and has exhausted their appeal rights, further submissions may be appropriate if genuinely new material is available.
The Home Office applies specific rules when deciding whether further submissions amount to a fresh claim. The evidence must be assessed in the context of the previous claim and relevant legal requirements.
A further submission does not automatically prevent removal. The procedural position should therefore be reviewed carefully before relying on it as the basis for delaying removal.
Human Rights Challenges
Human rights may provide another basis for challenging removal.
Depending on the circumstances, an individual may rely on family life, private life or protection against serious human rights violations.
Family circumstances can be particularly important where the person has a partner or children in the UK. Evidence should explain the nature of the relationship and the practical consequences of removal rather than simply stating that family members live in the UK.
Private life can also be relevant where a person has established significant ties to the UK.
Judicial Review
Judicial review can be relevant where the issue concerns the lawfulness of a Home Office decision or process.
It is not a general appeal simply because the individual believes the Home Office reached the wrong conclusion.
Possible issues may include legal errors, failure to follow a required procedure, failure to take relevant matters into account or other forms of unlawful decision-making.
Judicial review is concerned with whether a decision has been made lawfully, rather than simply whether the decision was correct. Where a person believes that a Home Office decision is unlawful, judicial review may be appropriate. Where the issue is that the decision was wrong and a right of appeal exists, an immigration appeal may be the appropriate route.
Removal and Urgent Action
Removal challenges can become particularly urgent where the Home Office has issued removal directions.
Current Home Office guidance contains specific procedures dealing with removal notices, notice periods, detention, bail and judicial review.
A person should not assume that making an application or contacting the Home Office will automatically stop removal.
The legal effect of the particular application or challenge needs to be established.
Evidence for a Removal Challenge
The evidence required will depend on the legal basis of the challenge.
This can include:
- Home Office decision letters;
- immigration history;
- previous applications and appeals;
- new evidence;
- family and relationship evidence;
- evidence concerning children;
- medical evidence where relevant;
- evidence supporting protection claims;
- evidence concerning private life in the UK; and
- documents relating to removal directions.
A complete chronology can also be important where a case has a long immigration history.
Removal and Immigration Detention
Some individuals facing removal are detained.
Where this occurs, the removal challenge may need to be considered alongside an immigration bail application or a challenge to continued detention.
The Home Office’s current detention guidance states that detention for removal requires a realistic prospect of removal within a reasonable period and that the authorities must act with reasonable diligence and expedition.
This means that detention and removal should not necessarily be treated as separate issues.
Our Removal Challenge Advice
We can review the proposed removal, identify the decision being challenged and consider whether an appeal, human rights claim, further submissions, judicial review or another legal route may be available.
Where urgent action is required, we can advise on the available steps and the evidence needed to support the case.