This blog post looks at the landmark UK Supreme Court decision in R (on the application of Kiarie and Byndloss) v Secretary of State for the Home Department  UKSC 42 on out-of-country rights of appeal.
The case is widely seen as a body blow to the UK government’s “deport now, appeal later” policy. But it also contains an important point of practice relating to judicial review claims where a persons human rights are engaged. Towards the end I consider the practicalities for persons who have been affected by the policy.
The “deport now, appeal later” policy was introduced by the Coalition government in 2013 with the stated aim of clamping down on “foreign criminals” who try to entrench their family life in the UK by dragging out the appeal process.
(Aside: I’m not aware of any evidence that has been presented to substantiate whether this was actually a problem that needed solving).
From 28 July 2014, the Immigration Act 2014 introduced a new section 94B to the Nationality Immigration and Asylum Act 2002 (‘NIAA 2002’). This provision gave the Secretary of State the power to certify a human rights claim made by a person subject to deportation where she considered that removal of that person prior to the completion of the appeal process would not breach their human rights.
In other words, the effect of a section 94B certificate was that the Secretary of State could remove you from the UK even if you had not had the opportunity to appeal against a deportation decision (hence the phrase “deport now, appeal later”). Any appeal would have to be brought from outside the UK.
Policy guidance instructed caseworkers to consider whether interim removal would result in “serious irreversible harm” and gave highly restrictive examples of what circumstances satisfied this demanding test (such as children with terminal illness who could only be cared for by the deportee).
From the outset there were concerns about the Tribunal’s ability to fairly conduct ‘out-of-country’ appeals given the lack of sophisticated technology and the difficulty of establishing reliable video-link connections across the globe. There were also concerns about the inappropriate use of the certification power leading to inevitable judicial review challenges.
My concern has always been about the ability of the Tribunal to provide a fair and accessible hearing. Although the right to a fair trial does not strictly apply to the Tribunal (for reasons I won’t go into in this post), the rules of natural justice require that claimants have a right of access to the Tribunal.
These concerns have a longer vintage.
In R. v Secretary of State for the Home Department Ex p. Asifa Saleem  1 W.L.R. 443, Lady Justice Hale, (as she then was), commented on the relationship between Article 6 of the Convention and the related common law right. At pages 457 to 458 she stated:
In this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts…. There is an analogy here with the principles established under article 6 of the European Convention on Human Rights. Immigration and asylum cases have not been held by the European Court of Human Rights to be “the determination of his civil rights and obligations” for the purpose of article 6. Furthermore, article 6 does not guarantee a right of appeal. But if the state establishes such a right it must ensure that people within its jurisdiction enjoy the fundamental guarantees in article 6. It is for national authorities to regulate the procedures governing the exercise of such rights, but these requirements must not be such that “the very essence of the right is impaired”. They must pursue a legitimate aim and the means employed must be proportionate to that aim.
The penultimate sentence quotes from the European Court of Human Rights case of Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442. There, the ECtHR held that the right of access to the court is relevant to Article 6 of the Convention. Citing Fayed v United Kingdom 1994) 18 E.H.R.R. 393, at paragraphs 71 and 72, the Court in Miloslavsky stated:
In general in considering limitations on access to court, the Commission must examine whether the limitation on access impaired the essence of that right, pursued a legitimate aim and bore a reasonable relationship of proportionality to that aim in the circumstances.
Technology has advanced since then, but as anyone who uses video link services knows, they can be poor quality and cannot always be relied on to ensure a fair and effective hearing.
Nobody at the Home Office or the Tribunal seemed too worried about the fact that an out-of-country right of appeal in deportation cases wasn’t really much of an appeal right at all.
On 1 December 2016 the section was amended to apply to all persons who have made human rights claims. This dramatically expanded the range and number of persons affected by the policy.
The Court of Appeal’s decision
The first major legal challenge to a certification decision under section 94B NIAA 2002 was R (Kiarie) and Another v Secretary of State for the Home Department  EWCA Civ 1020.
The Court of Appeal found that the Secretary of State’s guidance was misleading (as it suggested that the statute required claimants to prove that removal prior to the hearing of an appeal against a deportation order would result in “serious irreversible harm”, not just that it would result in a breach of human rights).
The correct approach was set out at §§ 33 to 35, namely that Claimants must show that interim removal would result in a breach of human rights. On a judicial review challenge against a section 94B certificate, the Court to make its own assessment of proportionality. However, Lord Justice Richards of the Court of Appeal was satisfied that the Immigration Tribunals were sufficiently flexible to make out-of-country appeals in deportation cases a fair and adequate procedure. They were specialist Tribunals who could be trusted to do justice to an appellant, even if that meant putting in place sophisticated video-conferencing technology.
The appellants appealed to the UK Supreme Court arguing that the procedural requirements of Article 8 had been breached.
The Supreme Court’s decision
Lord Wilson gave the leading judgment and agreed with the appellants’ main argument.
A central theme that runs through of the judgment of Lord Wilson is whether or not an out-of-country right of appeal gave the claimants a fair opportunity to present their case. Credit is due to the Claimants, Bail for Immigration Detainees (‘BID’ who intervened in the case) and their legal advisers, who provided strong evidence of the real difficulties of appealing deportation decisions from abroad.
A number of factors suggested that the existing facilities in the Tribunal and practicalities of Article 8 appeals meant that there was no effective right of appeal:
- As of 31 December 2016, some 1,175 certificates were issued under section 94B. The vast majority were thought to have been deported. Of the 72 out-of-country appeals that had been heard to date, none were successful;
- Deportation appeals require appellants to “assemble and present powerful evidence” on a range of matters. That task was likely to be more difficult from abroad;
- The practical effect of the section 94B certificate was to weaken appeals. This was arguably unfair given that the Secretary of State was both the maker of the certificate and the party opposing the appeal (§§ 57 and 58). Certification actually obstructs the presentation of an appeal;
- Legal aid is generally unavailable for persons appealing against deportation (as it is for those appealing against immigration decisions);
- Oral evidence in person is normally required in deportation cases in order to allow the Tribunal to properly assess a person’s character (and in particular the extent to which the deportee has mended their ways) (§ 61). [Note that Lord Carnwath in his short judgment expressed some doubt that such appeals would turn on subjective issues like this (§ 100)].
All this led the Court to conclude that live evidence is required for there to be an effective appeal against deportation in most cases (§ 63).
Concerns had already been raised about the facilities available for the Tribunal to hear appeals by video link (see the Upper Tribunal’s comments in R (Mohibullah) v Secretary of State for the Home Department  UKUT 561 (IAC) at § 90 in the context of appeals against refusals based on allegations of deception in English language tests – another category of case that has been afflicted by out-of-country appeals).
While it was possible for video link to provide an effective appeal there were many practical hurdles to be cleared, including:
- Poor connectivity and problems with the ‘bridging’ service between the distant end and the Tribunal;
- The need to obtain consent of a foreign state for evidence to be given within its jurisdiction can result in a “slow and tortuous process” (§ 73);
- Video link inevitably reduces the quality of the evidence available (§ 69) because of difficulties navigating the paperwork, cross-examination, and the giving and taking of instructions during the appeal hearing;
- The potentially high cost of renting video-conferencing facilities in the distant country and paying for the facilities used in the Tribunal. Differences in time-zone can also increase the cost and practical difficulties of participation in lengthy hearings (§ 73).
The Ministry of Justice and the Secretary of State have not put in place any facilities to enable appellants in these cases to give live evidence. For these reasons, the certificates in this case were a disproportionate breach of the procedural safeguards in Article 8(2) of the Convention.
What are the implications for those affected?
Clients whose human rights claims against deportation have been certified under section 94B may now bring (or continue to pursue) judicial review challenges on the basis that according to the principles in Kiarie, the certificates are disproportionate and should be withdrawn. In most cases, such challenges should succeed.
Some people may have already been removed or departed voluntarily and had their appeals. They may need specific advice on what remedies may be open to them, such as applications for compensation under the Home Office’s internal scheme, applications for leave to enter based on exceptional circumstances as well as applications to set aside any Tribunal determinations in which they were unsuccessful (although it looks as if only 72 appeals had been brought).
Practical difficulties of acting those instructions from a distance are significant. There is a real concern that there may have been injustices that are impossible to monitor or remedy (such as interim removals and refused appeals that are non-compliant with the 1950 Convention).
The future of out of country appeals is doubtful, unless and until adequate and affordable facilities are made available. That is likely to take some time, if it is ever achievable in an era of public sector austerity and hostile immigration policies.
A wider point of practice on judicial reviews
Where a certificate under section 94B is challenged in a judicial review, the Supreme Court agreed with the Court of Appeal’s approach, namely, that the question of whether interim removal is proportionate is a matter for the Court to decide (§§ 43 and 47).
But the Lord Wilson’s comments went much further (at § 47):
…even in the course of a judicial review, the residual power of the court to determine facts, and to that end to receive evidence including oral evidence, needs to be recognised.
In my view, this brief passage marks turning point in judicial review practice and procedure.
It suggests that the reviewing Court may need to conduct fact-finding and hear evidence in order to assess proportionality. By analogy, it also suggests that Courts and Tribunals hearing judicial reviews that concern Convention rights ought to be open to receiving evidence on the issue of proportionality (in the same manner as they would for statutory appeals).
In the short-term, Kiairie upsets the Upper Tribunal’s recent decision in R (on the application of Ayache) v The Secretary of State for the Home Department (paragraph 353 and s94B relationship)  UKUT 00122 (IAC) (see previous blog post here) which suggests that post-decision evidence cannot he considered in judicial reviews of section 94B certificates and must be submitted as part of an entirely new claim. The Supreme Court has confirmed that the Tribunal may be invited to hear evidence on a judicial review in appropriate cases.
More widely, a much more flexible approach to judicial review is being advocated by Lord Wilson in order to enable relevant evidence to be heard. This is fundamental shift in approach and contrasts with a long line of lower case law that suggests that the standard of review is that of whether or not a decision by a public body is reasonable, lawful and fair based on the evidence before the decision maker.
What does the case mean for other certification powers?
The Court considered that the Secretary of State has an alternative power under section 94(1) NIAA 2002 to certify claims that are “clearly unfounded”.
By contrast, section 94B applies to human rights claims that cannot be described as “clearly unfounded”. They are claims with merit and therefore require an effective appeal procedure.
Some practitioners have speculated that the decision in Kiarie and Blyndloss could lead to a rise in the use of the Secretary of State’s alternative power to certify claims human rights claims as “clearly unfounded” under section 94(1), since arguably, those claims have less entitlement to the procedural safeguards as claims that have merit.
Time will tell. However, a key difference between these alternative powers is that sections 94 requires a much higher threshold before it can be lawfully made.
Claims that are certified under section 94(1) NIAA 2002 must be “clearly unfounded” and “bound to fail”.
The Court of Appeal has recently given updated guidance in R (FR (Albania) and KL (Albania)) v Secretary of State for the Home Department  EWCA Civ 605 requiring such decisions to be adequately reasoned by reference to the statutory test. Given the high threshold contained in section 94, the power is likely to be relevant in a minority of cases that are “bound to fail”.
As such, section 94 is not a convenient substitute for section 94B. Many, if not all of the difficulties associated with out-of-country appeals against deportation decisions will also apply to out-of-country appeals under section 94, making such certificates arguably more vulnerable to legal challenge than they already are.