In the judicial review case of Ayache, R (on the application of) v SSHD (paragraph 353 and s94B relationship) [2017] UKUT 122 (IAC) the Upper Tribunal considers the lawfulness of a decision to certify a human rights claim under s.94B Nationality, Immigration and Asylum Act 2002. For those not already aware, s.94B gives effect to the government’s “Deport First, Appeal Later” policy, which was upheld as lawful by the Court of Appeal in Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020. The test case was, however, subject to an onward to appeal which was heard by the Supreme Court last month. Judgment is awaited.

Brief Facts

The Applicant in the case, Mr Ayache, is a national of Sierra Leone who arrived in the UK in 1995 at the age of 13. He was granted Indefinite Leave to Remain in 1996. Shortly thereafter, Mr. Ayache began a criminal career, obtaining a string of convictions, including a 5 year stretch for armed robbery.

Mr. Ayache had at some stage entered into a relationship with a Ms. Digpal, with whom he had a daughter. Whether this relationship with Ms. Digpal, or his relationship with their daughter, were subsisting at the time of the Home Office decision under challenge was a matter of dispute between the parties.

The Secretary of State served Mr. Ayache with a decision to deport in February 2015. He made representations in response, relying on his family life with Ms. Digpal and their daughter, and Article 8 ECHR. This claim was certified under s.94B, meaning that a right of appeal against it could only be exercised from outside of the UK (after removal had taken place). It was against this decision that proceedings were issued in late 2015, and permission granted to pursue Judicial Review in May the following year.

Judicial Review

The case has been reported as one which provides guidance on the relationship between s.94B and paragraph 353 of the Immigration Rules (which provides for the making of fresh claims). However, the defining issue in this case was whether or not post-decision evidence could be considered in the judicial review proceedings.

The fact that information and documents provided by the Applicant about his circumstances were submitted after the date of the Home Office decision led the judge to suggest that the appropriate course of action, rather than continuing to challenge the decision by way of Judicial Review, was to have made a fresh claim.

While the Applicant’s legal team suggested that this would not have enabled him to challenge the certification procedure (but only the substantive decision, which they were not seeking to do), UTJ Coker disabused them of this notion, as set out in the headnote

Although paragraph 353 does not refer in terms to certification, a decision certified pursuant to s 94b is plainly a decision on a “human rights claim” albeit a claim regarding temporary removal as opposed to removal for a more lengthy period if a statutory appeal is unsuccessful.  In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim

It therefore follows that, where a fresh claim is made under paragraph 353 of the Immigration Rules and is certified by the Secretary of State under s.94B, any decision to certify (as well as the underlying substantive claim) will be amenable to judicial review. UTJ Coker concluded that this would have been the appropriate legal route to take, given the ‘extensive evidence’ that was provided after the decision.

94B certification considered anyway

In any event, the tribunal saw fit to consider the challenge to the s.94B certification. Unable to adduce his post-decision evidence, the court proceeded on the following basis, and one totally at odds with the factual matrix advanced by the Applicant:

The applicant is not married to Ms Digpal and they were not cohabiting prior to his imprisonment. He does not have a genuine and subsisting relationship with Ms Digpal although contact has been maintained.

The applicant’s daughter was cared for by her mother, Ms Digpal, during his imprisonment and continues to be cared for by her. The applicant’s absence will result in some negative emotional impact upon his daughter.

There was no evidence that the applicant’s deportation would result in him losing all contact with his daughter.

The applicant does not have any contact with his son or his son’s mother.

This appears to have been a slightly harsh view of events, given that Collins J [6] originally granted permission on the following basis:

The relationship with Ms Digpal seems to exist and there was material which even at the time of the decision supported it.  But, as the rights of the child are at issue, it is appropriate to consider the present situation.

What happened to the material which prompted Collins J to grant permission in those terms is not made clear in the decision. UTJ Coker goes on to consider whether the s.94B certificate was validly made, setting out at [24] the position as confirmed by the Court of Appeal in Kiarie and Byndloss:

The respondent is required to specifically address whether the conditions set out in s94B are met namely, would the applicant’s removal pending the outcome of an appeal result in a breach of s6 Human Rights Act 1998 and give consideration to whether there are compelling reasons to exercise discretion. Those reasons include (but not exclusively) that the applicant would not be at real risk of serious irreversible harm if removed from or required to leave the UK.

As found in Kiarie and Byndloss, even if the Secretary of State had not undertaken an assessment of the proportionality of temporary removal (as was found to be the case here [31]), if, upon proper consideration of the applicant’s circumstances and application of the correct test there would have been no difference in outcome, then the certification will be upheld. Despite the judge finding that ‘on the face of it the making of the s94B certificate was legally flawed’, as a result of the factual findings made (excluding any post-decision evidence which may have raised doubts about their reliability), this was the eventual outcome.