Landmark Case on Home Office Policy on Remove First and Appeal Later

21st June 2017 by

R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent) R (on the application of Byndloss) (Appellant) v Secretary of State for the Home Department (Respondent) [2017] UKSC 42

 On appeal from [2015] EWCA Civ 1020

JUSTICES: Lady Hale (Deputy President), Lord Wilson, Lord Carnwath, Lord Hodge, Lord Toulson.

BACKGROUND TO THE APPEAL

Mr Kiarie has Kenyan nationality. He came to the UK in 1997 with his family at the age of three. Mr Byndloss has Jamaican nationality. He has lived in the UK since the age of 21 and has a wife and children living in the UK. Following their separate convictions for serious drug related offences, in October 2014 the respondent made orders for their deportation to Kenya and Jamaica respectively and rejected the appellants’ claims that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights (“ECHR”).

When making the deportation orders, the Home Secretary issued certificates under section 94B of the Nationality, Immigration and Asylum Act 2002. In certifying the appellants’ claims under section 94B, the respondent chose not to instead certify their human rights claims as “clearly unfounded” under section 94, indicating that their appeals were arguable. The effect of section 94B certification is that the appellants can bring their appeals against the respondent’s immigration decisions only after they have returned to Kenya and Jamaica. Until 30 November 2016, section 94B provided that where a human rights claim had been made by a person liable to deportation, the Secretary of State may certify the claim if she considers that the removal of the person pending the outcome of their appeal would not be unlawful under section 6 of the Human Rights Act 1998 and that the person would not face a real risk of serious irreversible harm if removed to that country

Ivon Sampson, Head of Immigration at Healys comments:

The Government’s system under s.94B of certifying human rights claims so that Appellants can only appeal from abroad has been held by the Supreme Court to be unlawful. The Home Office policy of “Remove first and appeal later” will hopefully now be withdrawn in light of this judgement

The Supreme Court states

“An effective appeal requires that the appellants are afforded the opportunity to give live evidence [76]. While the giving of evidence on screen is not optimum, it might be enough to render the appeal effective for the purposes of article 8, provided that the opportunity to give evidence in that way is realistically available to them [67]. However, the financial and logistical barriers to their giving evidence on screen from abroad are almost insurmountable”

The Court decided that when a person’s appeal is certified and they are forced to appeal from abroad, this would prevent them preparing the evidence necessary to ensure a fair appeal hearing, this was held to be unlawful. The Court also held that a proper assessment of an appellant’s evidence can only be done in person by a judge who is able to assess the credibility of the Appellant by his demeanour. The court said this was not possible when evidence is given by video. The court also noted that the technology for video conferencing was unreliable. All of these factors would prejudice the Appellant’s case.

The bottom line is that the Court decided that it was simply “NOT FAIR”.

This also raises the questions of what happens to those Appellant’s who have already been removed under the 94B certification regime. Will they be permitted to return to the UK if they wish to pursue their appeals in light of this judgement.

I am super pleased by the Supreme Court’s decision, however, the foundations of it are based on the ECHR, Art 8 and 6. There are no guarantees that we will still be in the ECHR post Brexit and there is the possibility that it may be replaced by something else which brings back the “remove first and appeal later” policy. There is hope however, as the recent result of the general election has weakened the hand of Theresa May, who as Prime Minister and previously as Home Secretary been hell bent on the UK withdrawing from the ECHR.

If you require any information on this topic, please contact Ivon Sampson on 020 7822 4000 or email ivon.sampson@healys.com.