The judgment in OO (Nigeria), R (on the application of) v Secretary of State for the Home Department [2017] EWCA Civ 338 is one of a series of cases challenging the lawfulness of the certification regime under s.94B Nationality Immigration Asylum Act 2002 (as amended). The issue has been considered several times on Free Movement, and judgment is still awaited on the lead test case of Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020, heard by the Supreme Court in March.

This case is notable for its treatment of family life issues in respect of a (potentially) temporary absence from the United Kingdom whilst an appeal is ongoing, and a reminder that specific evidence documenting the best interests of any children involved in a deportation case will be crucially important.

Outline Facts

In 2013, the claimant in this case was sentenced to 2½ years for acquiring criminal property. A Nigerian national, he had been in the UK since 2001, with Indefinite Leave to Remain since 2004. He has a wife, also a Nigerian national, with whom he has a son, aged approximately 11 at the time of the most recent hearing. Other than some traffic-related offences, the claimant had no other previous convictions.

The Secretary of State made a decision to deport the claimant on 4 December 2014. Shortly thereafter she decided to certify the case under the s.94B ‘deport first, appeal later’ provisions, such that any appeal brought by the claimant could only be lodged and pursued once he was out of the country.

The claimant challenged this decision, making an application to the Upper Tribunal to pursue judicial review of the certification decision. The grounds advanced by the claimant mainly concerned the welfare of his son during the time his appeal was proceeding, a period of unknown and unknowable length.

This was rejected on the papers, and then on renewal, by UTJ Kebede, who also refused permission to appeal to the Court of Appeal on 17 June 2015. That application was renewed and stayed behind Kiarie and Byndloss, which was then pending in the same court. After judgment was handed down in that case, permission was granted.

Legal issues

Lead judgment was given by Sir Timothy Lloyd, who identified the following legal issues arising in the case [34]:

i) The weight to be given to the public interest in cases of interim removal pending appeal;

ii) The proper assessment of the best interests of children who would be affected by a decision under section 94B;

iii) The significance, if any, of the fact that removal of OO under section 94B will result in his losing his indefinite leave to remain (ILR) whereas if he were able to pursue his deportation appeal in-country, and succeeded on that appeal, he would again be entitled to ILR;

iv) Having regard to all relevant matters, whether to remove OO on an interim basis pending appeal would be a disproportionate interference with his and his family’s rights under article 8.

In respect of the first issue, counsel for the claimant argued that the public interest in ensuring an appellant was not temporarily present during the course of the appeal was less than in their permanent exclusion following deportation proceedings. This argument was roundly rejected by the court, which found that [37]:

the public interest served by section 94B is essentially the same as that underlying the provisions about deportation generally, namely that foreign criminals should in principle be removed from the United Kingdom as soon and as efficiently and effectively as they can be. That applies even though it may later turn out that the appeal succeeds so that the person in question has to be allowed back.

Similarly short shrift was given to an interesting and important argument at (iii), not raised in Kiarie and Byndloss, that the claimant would lose his Indefinite Leave to Remain status if he left the country during the course of his appeal regardless of the eventual outcome. In a rather unmusical turn of phrase, the court accepted that the claimant would be ‘in a less good position after a successful out-of-country appeal’, but did not consider that this was relevant to consideration of the lawfulness of the certification decision [45]:

OO would be able to return to the United Kingdom after a successful out-of-country appeal and he would then be able to resume his family life with [his wife and child]

The court accepted in respect of (ii) that the best interests of the child remained a primary consideration, even in cases of potentially temporary ‘94B’ removal [38], although rejected the notion that the Secretary of State was under any positive duty to make enquiries as to the best interests of any affected children in a given case.

Old School Proportionality Exercise

The court referred to paragraph 44 of Kiarie and Byndloss to divine the correct approach in a challenge to 94B certification. Although it was not couched in the ‘elaborate legislative context’ of a deportation appeal where the public interest was strictly defined and could be outweighed only in very specific circumstances, the public interest in 94B temporary removal still carried ‘substantial weight’ [35].

As far as the Secretary of State is concerned, for this public interest to be outweighed, ‘specific adverse consequence[s] from the temporary removal’ must eventuate. Submissions were made that this might include where child care proceedings were ongoing, for example, of where the child had ‘significant learning difficulties or severe autism such that even temporary separation from the claimant would cause significant developmental harm’ [53].

In reaching its decision the court’s starting point, refreshingly, was that it was in the child’s best interests that the claimant remain in the UK for the period of the appeal [58]. This finding was prompted by two key pieces of evidence: a letter from school regarding the dramatic impact on the son that the father’s separation had had during the period of incarceration; and an independent social worker’s report (a rare thing in this post-legal aid world), bearing witness to the strong familial attachment between them, and the child’s high levels of anxiety and distress whilst his dad was away.

The court was also persuaded by evidence heard in respect of the conviction itself: a pre-sentence report had recommended a suspended sentence rather than incarceration; there was evidence of duress from others in the commission of the offence; and there had been no evidence of any reoffending. A number of other factors were listed in mitigation [60].

For these reasons, the (substantial) public interest in 94B removal was outweighed. The case is a reminder of the need in all appeals involving children to adduce specific evidence showing how they will be affected by the decision in question. In 94B challenges, the closer the evidence can be tied to why interim removal (rather than deportation in general) would not be in a child’s best interests, the more effective it will be.

The solicitors were Kesar & Co with Counsel briefed all being from Garden Court Chambers: Sonali Naik, Bijan Hoshi and Shu Shin Luh.