The Court of Appeal has this week handed down judgment in the expedited and linked appeals of Kiarie and Byndloss [2015] EWCA Civ 1020, concerning the correct interpretation of the new ‘deport first, appeal later’ rules under section 94B of the Nationality, Immigration and Asylum Act 2002.

Section 94B gives the Secretary of State the power to certify the human rights claim of a person liable to deportation where she considers that to do so would not be unlawful under section 6 of the Human Rights Act 1998 (public body not to act contrary to the European Convention on Human Rights). The effect of such a certification is that any appeal must be brought from outside the United Kingdom.

Section 94B affects persons whose deportation is said by the Secretary of State to be conducive to the public good. It is part of the overall drive to move appeal rights out of country; an approach expanded in the Immigration Bill, which had its second reading this week, to other human rights appeals.

The Home Secretary, during the second reading of the Bill on Tuesday, said ‘The 2014 Act shows that “deport first, appeal later” works when foreign criminals make human rights claims. Our manifesto committed us to extending that to all human rights claims. The Bill will now deliver on that commitment, allowing us to remove people with no right to be in the UK before they can appeal, provided that does not breach their human rights or cause serious irreversible harm.’

The Court of Appeal’s decision this week made clear some of the limits on the government’s plans.

Both appellants were liable to deportation, having been sentenced to periods of imprisonment of two and three years, respectively. Both had indefinite leave to remain in the UK at the time of their sentences. Mr Byndloss has eight children in the UK. The Secretary of State certified both appellants’ human rights claims, focusing initially only on the question of whether removal pending an appeal would cause ‘serious and irreversible harm’.

Those who have been dealing with such cases since section 94B came into force will be familiar with the ‘serious and irreversible test’. Home Office caseworkers have routinely been interpreting the legislation and guidance to remove would-be appellants where it was considered that removal would not breach article 3 ECHR, whilst effectively ignoring article 8 ECHR.

At the Court of Appeal, the Secretary of State conceded that that interpretation of the legislation is wrong. The Court confirmed that ‘Even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification.  She cannot certify in any case unless she considers…that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act.’ 

This is markedly different to the approach taken in the Secretary of State’s guidance to caseworkers to date. The Court of Appeal declared that the guidance on section 94B is ‘inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm’ and it will now have to be rewritten.

Despite this important ruling on the guidance, the appellants’ challenges to the decisions based on arguments as to procedural protections and the best interests of children were either rejected on the facts or not confronted by the court, leading the judicial review claims to fail. Permission to appeal to the Supreme Court will now be sought from the Supreme Court so that those arguments can be properly assessed. In the meantime, a stay on deportation has been granted.

Mr Byndloss was represented by Manjit Singh Gill QCRamby de Mello, Tony Muman and Jessica Smeaton.

Click here to view the judgement on Baili.