Robert Kellar appeared before the Court of Appeal in a challenge to orders by 3 High Court Judges requiring the Home Office to stay removal and return an asylum seeker from Afghanistan. The Court gave guidance regarding the proper approach to last-minute representations made on behalf of asylum seekers just before their removal.

The Court observed that the making of last minute representations to the Secretary of State and applications for urgent interim relief to prevent the removal can be highly disruptive of attempts to remove individuals who in truth have no right to be here. Where a removal which is in progress is stopped at the last moment, there may be a significant delay before new arrangements for removal can be made. Also, it is likely that the substantial cost of the aborted removal will be wasted.

Accordingly, the courts had emphasised that (a) steps to challenge removal should be taken as early as possible, and promptly after receipt of notice of a removal window; and (b) applications to the court for interim relief should be made with as much notice to the secretary of state as was practicably feasible.

The Court also emphasised the importance of the duty of candour in making such applications: “…there is a strong imperative for those instructed late in the day to make no representations or factual assertions which do not have a proper foundation in the materials available to them. Gaps in knowledge should not be filled by wishful thinking.

Robert Kellar was instructed by the Government Legal Department, read more about the case here.