The new case of R (QR (Pakistan)) v Secretary of State for the Home Department [2018] EWCA Civ 1413 is yet another example of fallout from last year’s Supreme Court judgment in Kiarie and Byndloss, relating to the infamous “deport first, appeal later” policy. The QR judgment itself doesn’t give much more guidance than we already had, but it is a good opportunity to take stock of where we are at with out-of-country appeals.

Background: QR and out-of-country appeals

QR is a Pakistani citizen, married to a British woman. He was served with a notice of a decision to deport him, which he challenged on Article 8 grounds on two occasions. His Article 8 claims were refused and certified under section 94B of the Nationality, Immigration and Asylum Act 2002. This section gives the Secretary of State power to “certify” a human rights claim if he considers that removing a person from the UK before they have had a chance to appeal would not breach their rights under the European Convention on Human Rights. A person whose application is certified will need to pursue their appeal from outside the UK.

Although the appeal against the human right claim needs to be pursued out-of-country, it is possible to challenge the certification itself, in-country, by way of judicial review.

QR appealed against the refusal of his Article 8 claim. He also commenced judicial review proceedings against the certification, and issued an application for an order restraining removal. The challenges to his removal were unsuccessful and QR was removed to Pakistan in February 2017. His Article 8 appeal is yet to be heard by the First-tier Tribunal.

On 14 June 2017, the Supreme Court handed down its judgments in R (Kiarie and Byndloss) v SSHD [2017] UKSC 42, giving some hope to QR that he might be able to return to the UK to pursue his Article 8 claim. He began fresh judicial review proceedings claiming that the certifications had been unlawful and sought his immediate return to the UK.

The High Court refused the judicial review application on the grounds that QR was out of time, and that there was no basis to extend time following Kiarie and Byndloss.

And so we arrive at the Court of Appeal. In this judgment, it looked at whether, in light of Kiaire and Byndloss, the certification of QR’s Article 8 claim was, in fact, arguably unlawful. It also considered whether QR should be allowed to return to the UK to pursue the appeal against the refusal of his Article 8 claim at the First-tier Tribunal.

Are out-of-country appeals lawful?

In Kiarie and Byndloss, the Supreme Court famously held that out-of-country appeals may be unlawful when appellants could not effectively appeal against the decision from outside the UK, including because of difficulties in securing legal representation and giving evidence. If an appeal from abroad will not be effective, then the public interest in removal would be outweighed and an application should not be certified.

Out-of-country appeals are not, therefore, inherently unlawful. The Upper Tribunal gave guidance in the case of AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC) on how to determine when an out-of-country appeal would be adequate (see brief discussion of that case here).

As it is possible for an out-of-country appeal to be unlawful, the Court of Appeal agreed with QR that he should be allowed to proceed with a judicial review looking at the lawfulness of the certification in his case. It remitted the decision to the Administrative Court.

What if I was removed before Kiarie and Byndloss was handed down?

The second matter the Court of Appeal had to consider was QR’s application to immediately return to the UK. Lord Justice Hickinbottom had decided much the same issue in R (Nixon & Anor) v SSHD [2018] EWCA Civ 3. In that case, he found that there is no presumption in favour of return even where the certification was unlawful. Bilaal on this blog described that position as “extremely disappointing and unsatisfactory“, but not surprisingly Hickinbottom LJ preferred his own analysis and found that he did not need to order QR’s return to the UK.

One of the reasons given (there were many, going on for almost three pages at paragraph 53 of the determination!) was that the First-tier Tribunal would be able to determine whether return was necessary during the case management conference relating to QR’s article 8 appeal. This, incidentally, was to take place the day of the Court of Appeal’s decision.

The decision to remit this matter to the First-tier Tribunal is in line with the case of R (Watson) v Secretary of State for the Home Department & Anor (Extant appeal: s94B challenge: forum) [2018] UKUT 165 (IAC) (discussed here), where the Upper Tribunal held that:

Where an appellant’s appeal has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 and the appellant has been removed from the United Kingdom pursuant to that certificate, the First-tier Tribunal is the forum for determining whether, in all the circumstances, the appeal can lawfully be decided, without the appellant being physically present in the United Kingdom.

What does this all mean?

• Out-of-country appeals are not necessarily unlawful (Kiarie and Byndloss)
• To determine whether they would be unlawful, one needs to look at the factors listed in the case of AJ, including the possibility of giving evidence, the effectiveness of securing legal representation and receiving advice from legal representatives, the possibility of producing an expert or other professional evidence, and the importance of hearing live evidence from the appellant (AJ)
• Even if it is found that a certification was unlawful, the appellant will not necessarily be allowed to return to the UK after the facts (Nixon & Anor)
• The First-tier Tribunal is best placed to decide if an individual’s appeal should be heard in the UK, and it should do so by following the AJ guidance (Watson).

So even if the Administrative Court finds that the certification was unlawful, QR might not be allowed to return to the UK to pursue his appeal. The First-tier Tribunal will need to decide whether or not his appeal can be adequately decided while QR remains outside of the UK.