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Tribunal sets out current approach to assessing whether out-of-country appeal is adequate


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AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC). Not much to say on this one as the headnote is self explanatory:

(1) In the light of Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42, the First-tier Tribunal should adopt a step-by-step approach, in order to determine whether an appeal certified under section 94B of the Nationality, Immigration and Asylum Act 2002 can be determined without the appellant being physically present in the United Kingdom.

(2) The First-tier Tribunal should address the following questions:

1. Has the appellant’s removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers?

2. If not, is the appellant’s absence from the United Kingdom likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?

3. If not, is it necessary to hear live evidence from the appellant?

4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?

(3) The First-tier Tribunal should not lightly come to the conclusion that none of the issues covered by the first and second questions prevents the fair hearing of the appeal.

(4) Even if the first and second questions are answered in the negative, the need for live evidence from the appellant is likely to be present. A possible exception might be where the respondent’s case is that, even taking a foreign offender appellant’s case at its highest, as regards family relationships, remorse and risk of re-offending, the public interest is still such as to make deportation a proportionate interference with the Article 8 rights of all concerned.

(5) If the First-tier Tribunal concludes that the appeal cannot be lawfully determined unless the appellant is physically present in the United Kingdom, it should give a direction to that effect and adjourn the proceedings.

Basically, it cannot be assumed that a challenge to an out-of-country section 94B certificate will succeed. The appellant (or his representatives) will need to show why an out-of-country appeal is not an adequate remedy in the particular appeal.

On the facts of this case, the Upper Tribunal held that the First-tier had materially erred in law in dismissing the appeal without hearing oral evidence from the appellant, who had already been removed. The matter was to be remitted for a further hearing in the First-tier. If an adequate video link could not be arranged, the First-tier was urged to consider directing the attendance of the appellant, in line with paragraph 65 of Kiarie and Byndloss.

Given that paragraph 65 of Kiairie and Byndloss is replete with scepticism that such a direction would be lawful or practical, it is not clear that this is a terribly helpful suggestion.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.