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Challenge to “deport first, appeal later” process rejected


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The Upper Tribunal has rejected a challenge to the Article 8 compliance of the “deport first, appeal later” system despite previously having ordered the Home Office to bring the claimant back to the UK to ensure he had an effective appeal. The case is R (Watson) (s. 94B process; s. 25 powers) v Secretary of State for the Home Department [2022] UKUT 156 (IAC).

Brought back to contest deportation appeal

Mr Watson’s case has a long procedural history. The Home Office began deportation proceedings in 2014 after he was convicted for drug offences. Officials used the power under section 94B of the Nationality, Immigration and Asylum Act 2002 to deport him to Jamaica before he could appeal. With the help of a pro bono organisation, he filed an appeal against the deportation decision about a month after it had been carried out, in October 2016.

Following the Supreme Court decision in Kiarie and Byndloss [2017] UKSC 42, Mr Watson argued that it would not be possible for him to have a fair hearing from Jamaica. Despite major problems at a case management hearing and concerns raised by his solicitor, the First-tier Tribunal determined that it could deal with his appeal fairly.

The applicant sought judicial review of that decision and the Home Office decision to maintain the section 94B certificate. But in R (Watson) v Secretary of State for the Home Department and First-tier Tribunal (Extant appeal: s94B challenge: forum) [2018] UKUT 165 (IAC), the Upper Tribunal held that the appropriate route of challenge to the fairness of an out-of-country appeal would be an appeal against the First-tier Tribunal’s decision to that effect, rather than a judicial review.

Deciding that appeal, the Upper Tribunal concluded that Mr Watson’s appeal against deportation could not be effective from abroad. It directed that the Home Office bring him back from Jamaica. Mr Watson duly returned, but ultimately lost his deportation appeal.

Throughout these appeal proceedings, this judicial review claim was stayed and several attempts to lift the stay were rebuffed. Once the stay was lifted, Mr Watson sought to challenge what had happened to him, arguing that his premature removal to Jamaica had resulted in “colossal” interference with his rights under Article 8 of the European Convention on Human Rights.

No human rights issue with pre-appeal removal

The Upper Tribunal concluded that the outcome of Mr Watson’s deportation appeal meant that he was bound to lose his human rights argument. President Lane wrote:

44. It is, in my view, highly significant that Parliament has decided, in the immigration context, to create an appellate regime by reference to whether the hypothetical removal of an individual would be contrary to section 6 of the 1998 Act. That appellate regime has produced the undisturbed judicial decision that the applicant’s deportation would not be in breach of section 6. In the present context, this constitutes a finding by the Upper Tribunal that, at the date it took its decision, the applicant’s deportation would not involve a substantive breach of Article 8 of the ECHR.

45. The process which led to that conclusion is, as I have found, one which has not been shown to have been in breach of Article 8, in its procedural form. Accordingly, where the issue has always been whether the applicant could be deported compatibly with Article 8, a lawful process, involving effective access to the tribunal, has resulted in the decision that Article 8 would not be violated.

46. Seen in this light, there cannot be any legitimate scope for the applicant to contend that, at some point in the process, he and/or his family has suffered a substantive breach of Article 8 rights.

On the face of it, it’s difficult to understand how there can be no violation of Article 8 where the Upper Tribunal itself determined that it was necessary for someone to be returned to the UK to conduct his appeal. Mr Watson missed the birth of one of his children because the section 94B certificate was in place.

Separately, the Upper Tribunal confirmed that it has the power in a statutory appeal to direct that the Secretary of State returns someone to the UK to ensure that the appeal is effective. This contrasts with the powers available to the First-tier Tribunal, which is unable to make such a direction. The lower tribunal instead has to make a finding that the appeal cannot be effective, on the understanding that the Secretary of State will then use her best endeavours to return the person to the UK.

The official headnote

(1) In determining whether, in the case of a person removed from the United Kingdom pursuant to a certificate under section 94B of the Nationality, Immigration and Asylum Act 2002, there has been a breach of Article 8 ECHR in its procedural or substantive form, the actions of the Secretary of State do not necessarily fall to be examined in isolation from the position of the United Kingdom’s judicial organs. It will therefore be of particular relevance whether the person concerned has, at all material times, had access to a court or tribunal that was able to ensure compliance with Article 8.

(2) In the course of an appeal under section 12 of the Tribunals, Courts and Enforcement Act 2007, where the appellant is outside the United Kingdom following removal pursuant to a section 94B certificate, section 25 of the 2007 Act empowers the Upper Tribunal to require the Secretary of State to return the appellant to the United Kingdom.


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Alex Schymyck

Alex is a barrister at Garden Court Chambers