When the Supreme Court delivered judgment in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, immigration practitioners across the UK took an audible sigh of relief. In that case, the Supreme Court held that the “deport first, appeal later” regime which operated under section 94B of the Nationality, Immigration and Asylum Act 2002 had the potential to be procedurally unfair and therefore, unlawful.

Colin’s blog post at the time of the decision posed several questions, including the situation of people already removed under the regime before it was declared potentially unlawful.

That question has now been considered head on by the Court of Appeal in R (Nixon & Anor) v Secretary of State for the Home Department [2018] EWCA Civ 3. Its conclusions can only be described as extremely disappointing and unsatisfactory. In particular, it found that there is no absolute right to return to the UK for an in-country appeal even if unlawfully kicked out under “deport first, appeal later”.

Background: Kiarie and Byndloss

As a reminder, under section 94B, the Secretary of State had the power to “certify” a human rights claim if she considered that, despite the appeals process not having begun or having been exhausted, removing a person from the UK would not be in breach of the European Convention on Human Rights. Section 94B(3) stated that the grounds on which the Secretary of State may certify a claim include that a person would not face a real risk of serious irreversible harm if removed. I have previously addressed the difficulty of interpreting what “serious, irreversible harm” means.

The Supreme Court held that whether an out-of-country appeal would be procedurally adequate was a question to be addressed by reference to the facts and circumstances of every case.

Lord Wilson advanced several reasons why removal at that early stage may be a disproportionate interference with an appellant’s Article 6 and Article 8 rights. Chief amongst the reasons were:

1. The obvious difficulty with obtaining, instructing and taking advice from one’s legal representatives;
2. Early deportation would itself weaken a person’s Article 8 claim;
3. “Insurmountable difficulties” in obtaining supporting professional evidence e.g. an independent social work report; and
4. The difficulties prevalent with a tribunal hearing evidence by video-link.

Contrary to popular belief, the Supreme Court did not outlaw the deport first, appeal later regime altogether.

Children do not get a separate human rights appeal

In both of the cases before the Court of Appeal, the appellants were Jamaican nationals who had been deported following a substantial period of residence in the UK. In each case it was argued that their removal would be in breach of Article 8. Each case was certified under s94B. The applicants challenged the lawfulness of the certificates by judicial review. Permission was refused. This case formed the appeal against that refusal.

Wading through the immigration history of the first applicant, Paul Nixon, it seems that when removal directions were set, he and his British son J-Kwon both applied for judicial review. The son’s claim was partly based on the notion that the certification would “prevent him from adequately preparing his Article 8 case by removing his principal witness (his father) from the jurisdiction”.

In relation to J-Kwon’s claim, the court properly rejected the idea that a family member can utilise a right of appeal which was not granted to them. The court considered that only the person whose human rights claim had been refused had the ability to appeal and therefore J-Kwon had no remedy in respect of the alleged breach of his father’s human rights, citing Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39. The section 55 duty to safeguard and promote the welfare and best interests of children required that the Secretary of State also take into account the Article 8 rights of all relevant family members, including children, in the one claim rather than separately.

Deported because of an unlawful certificate? Tough

At paragraph 75, the court laid down several propositions, taking into account the authorities on the adequacy and procedural fairness of out-of-country appeals. The stand-out ones were:

1. An out-of-country appeal will not always be procedurally unfair or ineffective. The question is one which hinges on the facts and circumstances of the particular case;
2. The burden of proof in showing that an out-of-country appeal is procedurally adequate lies with the Secretary of State;
3. There is no presumption of favour of return even where certification is unlawful.
4. There is a public interest in deporting foreign criminals and in not returning those who have been deported using public money.

The most problematic idea is at paragraph 122 which says:

… where an individual is deported on the basis of an unlawful certificate, he does not have a right to return to conduct the in-country appeal to which statute entitled him. The court has a discretion as to whether to make a mandatory order against the Secretary of State to take steps to return him to the UK so that he can (amongst other things) conduct his appeal in-country. If the court does not order his return (e.g. because it considers that an out-of-country appeal will effectively protect his article 8 rights), then that individual, despite being deprived of the right to an in-country appeal by virtue of an unlawful certification by the Secretary of State, is left to pursue any appeal out-of-country that he wishes to pursue. Of course, where such an appeal is adequate and effective to protect his human rights, he may suffer inconvenience, but suffers no injustice.

Lord Justice Hickinbottom seems to miss the point entirely. Had the certificate been quashed (or indeed, never issued), the person would never have been deported and thus would have been entitled to an in-country right of appeal all along. There is no logical reason why, if a deprivation of an in-country right of appeal is unlawful, that it should not be conclusive of the question as to whether a person should be returned.

Why should someone have to deal with the inadequacy of an out-of-country when he would (and should) have properly been entitled to an in-country right of appeal but for the unlawful certification of the refusal? That is the real issue.

More to come on out-of-country appeals

Despite some questionable conclusions, the Court of Appeal does at least refer to seven out-of-country deportation appeals listed for hearing in the First-tier Tribunal where video link will be provided free of charge. This will not only allow evidence to be heard but also allow appellants to instruct their representatives.

The court says that “it is hoped that these will test the effectiveness of appeals conducted from abroad, and heard in those circumstances”. If it is the case that such appeals are dealt with adequately, this may in turn address some of the serious concerns raised by Lord Wilson in respect of procedural fairness.

Until that time, this judgment is only likely to see more caseworkers certifying claims under section 94B using a tick box exercise for applicants to be deported unfairly, and judges then deciding that whilst the certificate was unlawful, there is no real remedy available. Basically, it’s “tough luck” for applicants yet again.