The growing number of persons on the receiving end of the government’s “deport now, appeal later” scheme may face some difficult choices. A person whose claim has been “certified” under the power in section 94B of the Nationality Immigration and Asylum Act 2002 cannot bring an appeal against a decision to deport or remove them so long as they remain in the UK.

The right of appeal can only be exercised from abroad (hence the phrase, “deport now, appeal later”).

Claimants whose claims have been certified under s. 94B will often require urgent advice on whether they should:

  1. bring a judicial review claim arguing that the Home Office certification was unlawful;
  2. lodge an appeal in the forlorn hope that the Tribunal accepts it as valid; or
  3. make a ‘fresh claim’ based on new evidence or information that was not provided to the Home Office when the certificate was issued.

The Upper Tribunal has recently given its views on this common trilemma in the case of R (on the application of Ayache) v The Secretary of State for the Home Department (paragraph 353 and s94B relationship) [2017] UKUT 00122 (IAC). Although the issues had been resolved by consent, the dispute caught the Tribunal’s interest and it made a determination anyway having called for submissions on various legal points.

The upshot is that where a claimant seeks to rely on fresh information that was not before the decision maker at the time of the s. 94B certification decision, they should make a fresh claim (option 3 above).

It is inappropriate to use judicial reviews to challenge a decision on the basis of post-decision evidence. That’s despite the fact that the Home Office is routinely allowed to withdraw and re-make decisions and thereby shift the goal-posts during the life of any given judicial review claim – a practice that has been criticised but is so far regarded as fair play.

In the words of UT Judge Coker (at §§ 18 to 20):

18. Although paragraph 353 does not refer in terms to certification, a s94B certificate is plainly a decision on a human rights claim albeit a claim regarding temporary removal as oppose to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim.

19. The duty imposed upon the Tribunal by s6 HRA is not infringed by it not reviewing post decision evidence which is said to do what the pre-decision evidence failed to achieve, namely establishing that removal would bring about an impermissible infringement of rights protected by Article 8. That is because the nature of the task being performed by the Tribunal is the exercise of a supervisory jurisdiction in respect of an historic decision. If there is more to be said by an applicant, then the machinery of paragraph 353 provides for it to be considered by the respondent. If the applicant is correct that the post decision evidence demonstrates that temporary removal would infringe protected Article 8 rights, that infringement does not flow from the decision of the Tribunal that the decision under challenge in the proceedings before it was, at the time it was taken, a lawful one.

20. It therefore follows that paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the respondent, rather than such material being considered in judicial review proceedings.

Pausing there, if a “deport now, appeal later” certificate  is a refusal of human rights claim (as the Upper Tribunal says at § 18 above), does it then give rise to freestanding in-country right of appeal?

I don’t know the answer, but I think that in light of recent case law (particularly the decision of Vice President Ockleton of the UT in Sheidu (Further submissions; appealable decision) [2016] UKUT 000412 (IAC), this is a valid question.

*Picture if you will a cycle of appeals (against “deport now, appeal later” decisions) and certifications (against those very appeals) extending into hall of mirrors style perpetuity…*

If that’s an absurd result, it’s one which has been arguably encoded into sections 82 and 92 of the 2002 Act as amended by Parliamentary draftfolk.

It may be said that this interpretation would undermine the whole purpose of the changes introduced by the appeal provisions in the Immigration Act 2014.

But it wouldn’t be the first time that the piecemeal and chaotic changes to the UK’s immigration law resulted in bizarre or unintended consequences.

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Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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