From today the Secretary of State has the power to certify deportation appeals so as to permit them only to be brought from abroad. The power is introduced by section 17 of the Immigration Act 2014, amending into the Nationality, Immigration and Asylum Act 2002 a new section 94B.

The Home Office has issued new guidance on both non EEA and EEA deportation cases. As expected, the Home Office intends to certify in cases where there is no “real risk of serious irreversible harm.” I will return to the guidance in a separate post on the subject [here].

Existing appeals can be certified under section 94B. The effect is extremely limited on existing appeals, though: there seems to be no effect at all, in fact.

In the full scheme of the Immigration Act 2014, this new form of certification under section 94B NIAA 2002 has an impact on a newly amended section 92 NIAA 2002 with the effect that

the appeal must be brought from outside the United Kingdom

See for example new section 92(2), to be introduced by section 17(2) of the Immigration Act 2014. Previously, deportation cases carried an automatic in country right of appeal but from today they do not.

If the appeal has already been brought, though, it must surely continue in its current form. There is case law to this effect on the previous certification regime: R (on the application of AM (Somalia)) v Secretary of State for the Home Department [2009] EWCA Civ 114.

The commencement of the new regime is exceedingly complex and it transpires that the critical section 17(2) of the Immigration Act 2014 has not in fact commenced yet. The Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820) brings into effect only sections 17(1) and 17(3) of the Immigration Act 2014. It then provides:

Until section 17(2) of the Act comes into force for all purposes, section 92 of the Nationality, Immigration and Asylum Act 2002 (appeal from within the United Kingdom: general) has effect in any case in which a foreign criminal as defined in section 117D(2) of that Act (as inserted by section 19 of the Act) has made a human rights claim which the Secretary of State has certified under section 94B of that Act (as inserted by section 17(3) of the Act) as if—

(a) the reference in subsection (2) to an immigration decision of a kind specified in section 82(2)(j) of that Act were omitted;

(b) the reference in subsection (4)(a) to a human rights claim were omitted; and

(c) subsection (4)(b) were omitted.

This is not easy to unpick, to put it mildly. The current section 92 remains in force except that:

1. a decision to make a deportation order no longer carries an in country right of appeal (this is the reference to s.82(2)(j)
2. making a human rights claim also no longer confers an in country right of appeal (reference to 92(4)(a))
3. asserting EU treaty rights also no longer confers an in country right of appeal (reference to 92(4)(b))

None of this seems to have the effect of depriving a person with a current appeal of right to continue pursuing their appeal from within the UK or in any way terminating the existing appeal. Even if section 17(2) of the Immigration Act 2014 and therefore the new version of section 92 NIAA 2002 had been brought into force it still does not seem to have any real impact on existing appeals. So, while the Secretary of State may indeed certify existing appeals to her heart’s content (assuming for metaphorical deployment purposes that she has one) it seems that such certificates have no effect.

Interestingly, the Home Office guidance merely observes that certification is possible during the appeal process, but does not address what might happen where a certificate is issued in such circumstances.

Health warning: this is based on an initial reading of the provisions and although we hosted a meeting last week at Garden Court with a few solicitors to discuss this and this was the consensus view, we might be wrong. Suggestions or alternative views very welcome in comments.