In R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 the Supreme Court has struck down “deport first, appeal later” certificates for two foreign criminals. The Home Office had made use of new rules in the Immigration Act 2014 which force some appellants to leave the UK before their appeal takes place, meaning that they are not present to give evidence.

Of 1,175 cases in which these powers have so far been used, only 72 individuals attempted to pursue an appeal from abroad. None succeeded.

The “deport first, appeal later” rules were originally applied only to foreign criminals facing deportation. However, the Immigration Act 2016 expanded Home Office powers and any appellant can now be forced to leave the UK prior to their appeal taking place, other than in asylum cases. This includes EU nationals facing deportation.

The Supreme Court judgment therefore has very wide implications. It blows a hole in a flagship Home Office policy much championed by Theresa May when she was Home Secretary and since expanded to almost all appeals.

The facts

Mr Kiarie is aged 23 and has lived in the UK since he was three. He is of Kenyan nationality and has possessed settled status since 2004. He has been convicted of serious drugs offences and in 2014 the Home Office decided to deport him and also used what was then a new power conferred by the Immigration Act 2014 to force him to leave the UK before he lodged and pursued an appeal. Mr Kiarie challenged the decision that he should be deported first before his appeal and lost his case at the High Court and the Court of Appeal.

Mr Byndloss is aged 36 and has lived in the UK since the age of 21, since 2006 with settled status. He is of Jamaican nationality. He has a wife and four children in the UK and several other children. He was convicted of a serious drugs offence and in 2014 the Home Office decided to deport him and, again, used the new “deport first, appeal later” power to force him to leave the UK before pursuing any appeal.

The law

Giving the leading judgment, Lord Wilson rehearses not just the legal but also the political background to the “deport first, appeal later” regime, starting with a quote from then Home Secretary Theresa May to the Conservative Party Conference in 2013.

The “deport first, appeal later” regime is a discretionary one: it only operates when the Home Office decides that it should. Where the Home Office decides that the regime should apply to a particular person’s appeal, a “certificate” is issued under section 94B of the Nationality, Immigration and Asylum Act 2002, which was inserted into that Act by the Immigration Act 2014.

Section 94B includes a test for the Home Office to consider before such a certificate is imposed, which is set out in subsections (2) and (3):

94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a person (‘P’) who is liable to deportation under –

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) …

…

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.

In an earlier judgment, the Court of Appeal ruled that the correct test is really that set out at subsection (2), whether the decision would breach a person’s human rights. We wrote up that decision at the time here: Court of Appeal gives judgment on the “deport first, appeal later” regime.

As well as the statute itself, guidance is also published by the Home Office on how to apply these provisions in different circumstances.

It can be seen that section 94B originally applied only to appellants facing deportation. The power was amended by the Immigration Act 2016 to remove the references to deportation, meaning that it can be applied to any human rights appeal at all, which is now basically all non-asylum immigration appeals.

As Lord Wilson says, giving the leading judgment:

The extended power does not fall to be considered in these appeals but our decision today will surely impact on the extent of its lawful exercise. [9]

Indeed. Not mentioned by Lord Wilson is the fact that similar provisions were introduced for EU deportation cases as well, and this judgment will surely have an impact on those cases as well.

The judgment

What public interest?

In the Court of Appeal Richards LJ gave considerable emphasis to the public interest in the early deportation of foreign criminals. Refreshingly, Lord Wilson points out that this is not the only public interest in play:

But in my view that public interest may be outweighed by a wider public interest which runs the other way. I refer to the public interest that, when we are afforded a right of appeal, our appeal should be effective. [35]

If an appeal from abroad will not be effective, the public interest in removal would be outweighed, he goes on. This is important, because Lord Wilson returns later to whether out of country appeals can be effective at present given current arrangements in the tribunal for video link evidence.

Lord Wilson also observes that where an appeal is “clearly unfounded” there is a separate power under section 94 to certify such a case and force the appeal to occur from abroad. Where a clearly unfounded section 94 certificate can be justified, Home Office officials are instructed to pursue that route. It follows that appeals certified under section 94B are not considered to be clearly unfounded and therefore may well have some substance to them, which is likely to be relevant to the public interest in effective appeals.

What facts?

At paragraph 47 Lord Wilson finds that where a challenge is brought to a section 94B certificate, the court does not have to accept the facts as found by the Home Office and that a full merits review of those facts is permissible. Evidence, including oral evidence, can be received by the court if necessary.

This is very important in some challenges to section 94B certificates because Home Office policy is not to apply a certificate where there is a family life with a British citizen spouse or child. This is a question of fact. In the Byndloss case the Home Office found there was no genuine relationship between Mr Byndloss and his family but Mr Byndloss claimed otherwise and had what sounds like rather good evidence to back him up. The Court of Appeal had decided not to admit this evidence and fixed Mr Byndloss with the findings made by the Home Office; the Supreme Court suggests that is the wrong approach.

What considerations?

Lord Wilson notes that the deportation of the two appellants would have a profound effect on them and on their families. He comments that the task facing any person against whom deportation action is pursued is a “formidable” one and that such a person must “be in a position to assemble and present powerful evidence.” Interestingly and importantly, he then sets out at paragraph 55 a list of factors that will need to be considered in an appeal against deportation, something we have not seen before from the Supreme Court:

(a) the depth of the appellant’s integration in UK society in terms of family, employment and otherwise;

(b) the quality of his relationship with any child, partner or other family member in the UK;

(c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise;

(d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the UK;

(e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case,

(f) any significant risk of his re-offending in the UK, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.

In effect, this incorporates the core of Strasbourg jurisprudence on deportation into UK law. Notably, these are not factors that are wholly incorporated into the statutory deportation provisions at section 117C of the Nationality, Immigration and Asylum Act 2002 as amended. Given that these statutory considerations have not previously been considered by the Supreme Court but clearly will be at some point and they were not addressed in the previous case on deportation, Heshim Ali, this seems to be the laying of groundwork for a future judgment.

In short, these factors have to be considered in all cases, including in cases where the statutory considerations apply.

What, fairness?

At paragraph 56 Lord Wilson considers the point that the Home Office is both a party to the appeal and controls whether the other party to that appeal can attend the appeal. This is potentially unfair. If the rules are fair, he finds, then there is no problem. But there is a but:

But the role of the respondent to the proposed appeals in seeking to achieve the removal of the appellants in advance of their determination, taken in conjunction with the first three of the background features set out above, requires this court to survey punctiliously, and above all realistically, whether, if brought from abroad, their appeals would remain effective. For that is what their human rights require. [56]

Lord Wilson also considers the point that removal pending an appeal disrupts the status quo, which is that the appellant can continue with the private and family life he or she asserts she has in the UK. The Home Office advanced two arguments:

1. Any disruption would be short if the appeal were ultimately to succeed because appeals were being determined within five months of filing the appeal notice, which sounds utterly incredible based on the current tribunal statistics; and

2. Those facing deportation would have been in prison or immigration detention prior to removal in any event, so will already have suffered a loosening of their ties to the UK.

These arguments are not accepted:

It is one thing further to weaken an appeal which can already be seen to be clearly unfounded. It is quite another significantly to weaken an arguable appeal: such is a step which calls for considerable justification. [58]

Lord Wilson then moves onto the critical question: the effect of a certificate under section 94B in obstructing an appellant’s ability to present his appeal.

What impact on presentation of an appeal?

The issue of whether an appellant who has been removed from the UK might be represented at the hearing is considered at paragraph 60 but the Supreme Court decides that this is not the central question. Representation might or might not be available; what matters is whether, irrespective of whether a lawyer is available, human rights require that the appellant is not removed in advance of the appeal.

Next up is the issue of oral evidence. Here the Supreme Court attaches much significance to the value of oral evidence, particularly on the issue of risk of reoffending:

In a witness statement he may or may not be able to express to best advantage his resolution to forsake his criminal past. In any event, however, I cannot imagine that, on its own, the statement will generally cut much ice with the tribunal … the tribunal will want to hear how he explains himself orally and, in particular, will want to assess whether he can survive cross-examination in relation to it. [61]

My own experience is that in deportation cases the appellant rarely improves on his or her witness statement, but that is clearly a relevant consideration for the tribunal in itself.

Similarly, oral evidence about family relationships will need to be heard from the appellant himself as well as from the family members left behind in the UK.

In passing, the Supreme Court notes that similar powers have been applied to EU deportation cases and endorses the comments of Blake J in Gheorghiu [2016] UKUT 24 (IAC). However, in EU law cases, unlike in section 94B cases, there is provision for an appellant to apply for an interim order to suspend removal and another provision to enable an appellant to re-enter the UK to attend the hearing.

The Home Office submission was that oral evidence was not generally needed for an effective appeal. Lord Wilson concludes:

I am, however, driven to conclude that the submission is unsound and that the suggested unlikelihood runs in the opposite direction, namely that in many cases an arguable appeal against deportation is unlikely to be effective unless there is a facility for the appellant to give live evidence to the tribunal.

Next the judgment turns to whether there was an adequate alternative to oral evidence. Two possibilities were considered:

1. Use of a summons or direction by the tribunal to encourage the Secretary of State to readmit an appellant to attend a hearing. This is rejected as impractical. A summons is not enforceable abroad and a direction would also be unenforceable.

2. Use of video link evidence. This is also rejected as impractical. The Supreme Court considers comments by Mr Justice McCloskey in R (Mohibullah) v Secretary of State for the Home Department [2016] UKUT 561 (IAC) to the effect that video link evidence is “quite unsatisfactory”, evidence that 98% of tribunal judges considered tribunal IT equipment to be of poor standard, comments of Mr Ockelton in the case of Nare [2011] UKUT 443 (IAC) to the effect that oral evidence should be the norm in the tribunal and evidence from BID as to their appalling experience of attempting to actually use video link evidence in the tribunal.

BID applied for permission to call video link evidence in a case. Astonishingly, they were directed by the tribunal to provide their own projection equipment, audio equipment and a wifi link at the distant end but also at the hearing centre itself, all at the expense of the appellant with no assistance from the Home Office or the tribunal itself. Acting pro bono, BID purchased the necessary equipment for use in the UK, costing £525.97.

Mr Kiarie’s lawyers estimated the cost of video link facilities in Nairobi would be around £1,680.

Even if these financial issues could be overcome, there were still serious practical problems including

(a) it can be a slow and tortuous process to obtain the consent of the foreign state for evidence to be given from within its jurisdiction;

(b) it can be difficult to achieve compatibility between the system adopted at the distant end and the system installed at the hearing centre, with the result that a bridging service sometimes needs to be engaged and funded;

(c) it can be difficult to alight upon a time for the link to begin and end which is both acceptable to the tribunal and practicable at the distant end in the light of the time difference; and

(d) if, as is not uncommon, the link fails during the hearing and cannot then and there be restored, the tribunal can prove reluctant to grant an adjournment to another date.

Further, it will usually be impossible after deportation to get a probation officer to write a report, it will be impossible to commission a UK-based psychiatrist to assess a deported appellant purely by video link given the importance of non verbal communication and nuance and it will be impossible to commission a useful report from an Independent Social Worker where he or she cannot observe the appellant with his or her family.

For these reasons, Lord Wilson concludes that for the appeals to be effective, the appellants need to be afforded the oppportunity of giving live evidence. They will not be able to do so in person and the financial and logistical barriers to giving evidence on screen “are almost insurmountable.”

He ends with strong criticism of the conduct of the Home Office and the court below:

In this case the Court of Appeal has indorsed a practice in which, so it seems, the Home Secretary has, not always but routinely, exercised her power under section 94B to certify claims of foreign criminals under article 8. But she has done so in the absence of a Convention-compliant system for the conduct of an appeal from abroad and, in particular, in the absence of any provision by the Ministry of Justice of such facilities at the hearing centre, and of some means by which an appellant could have access to such facilities abroad, as would together enable him to give live evidence to the tribunal and otherwise to participate in the hearing. [76]

Lord Carnwath gives a concurring judgment but with rather different reasons.

What happens now?

The Supreme Court judgment in Kiarie and Byndloss surely brings to at least a temporary end the certification of immigration appeals requiring them to be brought from abroad. As things currently stand, with no proper provision of video link facilities for appeal hearings and no facility for an appellant to return from abroad to give evidence, the objections of the Supreme Court to the fairness and effectiveness of out of country appeals cannot be met and therefore no out of country appeal could be fairly determined.

However, it is conceivable that practical arrangements could be put in place in future to enable live evidence to be given, either through a scheme permitting return of an appellant from abroad or through provision of good quality and reliable video link evidence.

Problems would still exist with calling evidence from abroad, but it may prove to be feasible if there is the will to achieve it. After all, the immigration tribunal is the test bed for online courts and research is already being conducted by the Ministry of Justice on how to conduct online hearings in the immigration jurisdiction.

How about appellants who have already been removed? Some will have attempted to challenge their removal but unsuccessfully. If they are still in touch with their lawyers and their appeals have not been determined, they could consider applying for an injunction requiring their return to the UK to attend their hearing. Such an application would have to be made in an application for judicial review; the First-tier Tribunal lacks the power to make such an injunction.

For those who have not attempted to challenge removal, there may still be a case for their being returned to the UK if they can organise a lawyer to bring a challenge on their behalf. This will perhaps be more likely to succeed where there is an outstanding appeal. The practicalities (how will they find a lawyer, how will they fund the case?) remain challenging.

Those who were removed and who in effect abandoned their appeal, perhaps because they did not see the point because the chances of success seemed so limited in the circumstances, might possibly be able to seek return in order to lodge and pursue an appeal, but their situation seems more tenuous given that an appeal was not pursued at all. They are unlikely even to find out about the judgment confirming the unfairness of their earlier treatment, sadly.

And I would have thought we can now expect the Home Office to settle any outstanding judicial reviews of section 94B certificates and to pay the costs of the claimant.

Well done to the legal teams behind this case. It is a considerable and important success, it reaffirms the importance of the rule of law and it safeguards the right to an effective challenge to decisions of the executive.