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Irreversible harm


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From 28 July 2014, the commencement of provisions of the Immigration Act 2014 gives the Secretary of State new powers of certification that will oust “in-country” rights of appeal for foreign criminals. She may do so in any case where she thinks removal would be consistent with the Human Rights Act 1998 and in particular where there is no real risk of serious irreversible harm faced by the deportee (section 94B of the amended Nationality Immigration and Asylum Act 2002).

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Immigration lawyers have grown accustomed to the present system of statutory provisions governing the forum of appeals and the powers under which some kinds of case may be certified upon refusal so as to prevent an appeal to the Tribunal. Section 92 has always controlled the location of the appeal, giving vital protection to the migrant appellant for whom expulsion may threaten the very rights that the appeal aims to protect, operating so as to confer “in-country” appeal rights automatically on some kinds of immigration decision (eg appeals against refusal to vary leave and to make deportation decisions) and with respect to some kinds of grounds of appeal (those raising asylum or human rights claims or EEA rights). Section 94 has long housed the certification powers, including those that permit a decision maker to certify a human rights case as “clearly unfounded”, dooming the migrant in question to an “out-of-country” appeal, subject to challenge by way of judicial review.

Both provisions now receive very significant alteration in the deportation context under the Immigration Act 2014. In future, where the migrant has been sentenced to imprisonment for more than a year or is otherwise a persistent offender or considered to pose a threat of serious harm, they may face a new kind of certificate under section 94B that means their appeal rights can only be exercised from abroad, the protections against “in-country” expulsion within section 92 being accordingly modified.

These issues have been discussed in a recent blog post by Colin. Perhaps the only ECtHR case where a Rule 39 has been granted in a family life case is Nunez v Norway (Application no. 55597/09; 28 June 2011) where the Court stated that children should not always suffer the negative consequences of fraudulent conduct of a mother and that the authorities should always examine the effects an expulsion has on the possibilities of children to enjoy private and/or family life as protected by Article 8 ECHR. The Court considered that ‘exceptional circumstances’ may make it necessary to accord primacy to the interests of dependent children – even if that would imply that a parent must be allowed residence as well (and the mother had a very poor immigration history having been convicted of serious offences of dishonesty regarding her past obtaining of visas).

Practitioners will wish to ensure that they fully investigate the full web of related Article 8 rights that may surround a deportee, given that the focus of enquiry under section 94B(3) is whether the person liable to deportation “would not … face a real risk of serious irreversible harm” if removed: the existence of third party rights may well suggest a case is unsuitable for certification, given their relevance to enquiries under the Human Rights Act 1998, see Beoku-Betts [2008] UKHL 39.

There are rather complicated transitional provisions. Colin has discussed these here. It might help just to go through their introduction once again. The new certification regime will enter force in two stages.

(a)           Firstly, from 28 July 2014, article 4 of Commencement Order No 1 removes the suspensive appeal protection within section 92: henceforth, in deportation cases, section 92 is to be read as if there was no reference therein to the making of a deportation order or to the making of a human rights claim, with the consequence that the traditional barriers to removal pre-appeal are lifted for deportees;

(b)           Secondly, from the (as yet unspecified) time that section 17(2) of the 2014 Act comes into force, there will be a wholly new section 92 introduced, placing section 94B amongst the existing certification powers relating to “clearly unfounded” claims already available to the Home Office.

It is not presently possible to make a certificate (under section 94B or otherwise) that would stifle a pending appeal (such a practice is, outside of this specific context, precluded by the decision in AM Somalia) in a case where the appeal is already afoot as of 28 July 2014: because the appeal has arisen with the enjoyment of the full protection conferred by section 94 as in force before the possibility of “reading out” its “in-country” protections arose.

I discuss these issues and other aspects of the new certification regime in the linked podcast, taken from a recent seminar here at Garden Court Chambers.

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Mark Symes

Mark is a barrister at Garden Court Chambers with twenty years of casework experience, he is co-author of the "encyclopaedic... pre-eminent" Asylum Law and Practice and is enthusiastic about all areas of all immigration law, from human rights to commercial cases. Mark is rated as a "real expert" and as "dynamic and brilliant" by Chambers UK 2014.


13 Responses

  1. Loads of EU people call from Morton Hall IRC. They all want justice: “please win my case” they say. All of them have really atrocious records. Some of them have murdered people in their home state and have committed ugly crimes in the UK. They complain that the Home Office has used their overseas convictions against them in their deportation appeals. Burglary and robbery are minor things to these men. One of them beat his British wife so badly that she lost her right eye and hid from his drunken attacks in the airing cabinet all night. But she forgave him so he won in FTT. The Home Office won in UT. His solicitors abandoned him and are trying to get him to pay more money. All these EU national criminals of Morton Hall IRC say that they won’t be deported if they claim mental illness. They say that life in Morton Hall IRC is better than it is in Vilnius. They “hate” the UK and think that the British are stupid idiots and they hugely support Vladimir Putin. Should these EU nationals be allowed to stay?

    1. That depends whether or not they meet the criteria for deporting an EU national…is my answer as a lawyer. I wouldn’t take their cases, but that is a luxury I have due to the access criteria applied by my employer. Depending on your situation, you may be obliged to give them legal advice.

      Wearing my political hat, since I believe in freedom of movement for everyone, not to mention freedom of expression and freedom of opinion, yes, they should be allowed to stay. They have already been punished for any offences they may have committed, and the criminal justice system does not currently include relocation as a sentence, which would anyway only be a just sentence if it could be carried out regardless of nationality.

  2. I don’t know. It seems like a terrible system. That’s what I’m on. Beyond providing comfort on the telephone and listening to these EU nationals who are in need of representation, I can’t really help any of these people. All they have is 20 dishonesty offences and other violent crimes on their records. They say that big immigration law firms advise them that if they claim asylum then they can be represented on public funds but otherwise not. A lot of these guys are also saying that they did not understand what happened in their criminal trials because of their poor understanding of the English language. They say their solicitors betrayed them too. Sounds like loads of chaos all around. I think that they should stay on in IRC and fight it out. I’m sure living in jail/IRC for a long time makes one mentally ill anyway so their claims probably have merit.

    1. Maybe I’m missing something, but in what way would mental illness help their case? Is there something horrifically wrong with the Lithuanian mental health system?

  3. It’s really interesting to read their papers. A lot of them have won in FTT without representation (like the chap who attacked his British wife: she totally forgives him, she’s gotten over losing her right eye and they want to raise their two kids in the UK). More than just the mental health system is horrifically wrong in Lithuania. Rat ridden black hole prisons etc. Former employers want to take these EU nationals back for work. There are literally dozens of guys out there: their offences are totally crazy. They know a lot about ECHR and EU law: “We are not stupid” they say. If anyone wants to “help” them (which I seriously doubt) I can give their details. They would be delighted to hear from anyone really!

  4. Well, if there is a genuine asylum/Article 3 claim to be made, let them make it and the big immigration firms can sort it out.

  5. Hi Philip, I’d like to say something nice about the big immigration firms but can’t really bring myself to do it. I suppose they have a thousand cases a month to take care of and can’t spend too much time on each one individually (that’s no excuse though). The thing is that these EU criminals can go elsewhere in the EU and do it all again! So what if they live here? I guess if they go through the criminal justice system here again, it will be very expensive for the UK – this is the main concern of the Home Office. Just to answer Colin’s question (What kind of question is that for a lawyer rather than a politician?): can the question not be asked as a member of society?

    1. I have already answered that question, as a member of society. Anyway, if Lithuanian prison conditions breach Article 3, then that is a proper subject for a claim, which can be legally aided- by anyone with a legal aid contract, but the big immigration firms would seem suitable given the numerous number of claimants.

      It is always a problem with deportation that it merely moves the offenders to another location where they can reoffend. In this case, the location happens to be the rest of the EU, but I don’t see this raises a greater moral dilemma than if the location were, say, Nigeria. Besides, they could go elsewhere in the EU and reoffend even if we don’t deport them!

  6. In reality a lot of people on deportation orders return back in breach. So tell me, if a Lithuanian was convicted of armed robbery, false imprisonment, blackmail and possessing ammunition without a valid certificate and sentenced to 9 years’ imprisonment in Old Bailey and took the ERS to Lithuania and did not appeal the deportation order (made on national legislation in 7.04, about the same time the A8 entered the EU) and the said person has returned to the UK in breach of the DO and has a new family here and he has been removed five times but on the last occasion (in 5.12) was given TA and an in-country right of appeal under the regs and the decision letter of 12.12 was withdrawn by SSHD in 1.13 and no fresh decision has been made and it is now > 10 years since the DO was made (and the HO has also never responded to an application made in 6.12 to revoke the DO), in your wide ranging experience as someone handling such matters routinely, would you say that the HO will allow this Lithuanian national to stay in the UK without a further appeal?

    1. The HO would eventually make a negative decision, sure, so they won’t “allow them to stay” in the legal sense. But will they actually physically remove them any time soon? No. So they would be “allowing them to stay” in the physical, actual, sense!

  7. In the last question, I am no longer referring to “them”: rather to “him” [a Lithuanian convicted of armed robbery, false imprisonment, blackmail and possessing ammunition without a valid certificate and sentenced to 9 years’ imprisonment in Old Bailey … or “VS (Lithuania)”]. And I have asked the above question of a lot of people including QCs and leading juniors (cleverly they “want to see all the papers”, ha). No one has given a “real” answer. I doesn’t really matter as I guess I’ll know if the HO ever does anything about it. I agree though that the decision is likely to negative. But since his release/TA on the papers in 5.12, VS (Lithuania) has not been able to work and has to sign weekly and has to stay in the UK and can’t do any free movement. As his EU partner works, he is the primary carer of his son NS (5 years). It is shocking how the HO can just withdraw decisions in/before hearings. VS (Lithuania) has nice evidence in his bundle and many family members too. He would have walked all over the HO before an IJ. The decision was so poorly made: on rules not regs, and the author was unaware that in order to exercise his in-country right of appeal under regs VS (Lithuania) was given TA on representations – i.e. without a bail hearing. Anyway, you have a nice day. In relation to “them” (the murderers/wifebeaters who called the other day from IRC) I agree that the HO would be “allowing them to stay” in the physical, actual, sense! They just refuse to go …