- BY CJ McKinney
First-tier Tribunal the place to decide whether out-of-country appeal lawful
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Just one new reported decision of the Upper Tribunal this month. It involves a Jamaican national deported in September 2016 who, rather poignantly, “has never physically seen” his son, born in the UK later that year. The case is R (Watson) v Secretary of State for the Home Department & Anor (Extant appeal: s94B challenge: forum) [2018] UKUT 165 (IAC).
The legal issues are mostly procedural and so I leave them to the official headnote:
(1) 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. The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).
(2) If the First-tier Tribunal stays the appeal proceedings because it concludes that they cannot progress save in a manner which breaches the procedural rights safeguarded by Article 8, then it is anticipated the Secretary of State will promptly take the necessary action to rectify this position. If this does not happen, then an application for judicial review can be made to the Upper Tribunal to challenge the Secretary of State’s decision and compel him to facilitate the appellant’s return.
(3) If the First-tier Tribunal decides that the appeal process is Article 8 compliant, the Tribunal’s substantive decision will be susceptible to challenge, on appeal to the Upper Tribunal, on the ground that the Tribunal was wrong so to conclude.
The fallout from Kiarie and Byndloss continues, then. For brief discussion of the AJ case mentioned in the headnote, see Tribunal sets out current approach to assessing whether out-of-country appeal is adequate. Colin’s original post on the Supreme Court decision that set all this in motion is here.
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