Wed, 14 Jun 2017
The Supreme Court has allowed appeals in R (Kiarie) and R (Byndloss) v Secretary of State for the Home Department  UKSC 42 by persons whom the Home Secretary wished to deport even before they had had a chance to appeal to a tribunal on human rights grounds against the deportation decision. It has concluded that the very system of appealing from abroad in such cases simply does not provide an effective right of appeal.
Manjit S. Gill QC of No5 Barristers’ Chambers and leading counsel for Mr Byndloss, said:
‘The Supreme Court’s judgment will very heavily limit, if not entirely curtail, the Home Secretary’s use of the controversial ‘deport first, appeal later’ power for ‘foreign criminals’ who wish to challenge deportation decisions on the basis that deportation will infringe the right to family or private life. The Court has made clear its disapproval of the routine use of such a power’.
The ‘deport first, appeal later’ regime was introduced in July 2014 when section 94B was added into the Nationality, Immigration and Asylum Act 2002. Section 94B confers a power on the Home Secretary to certify the human rights claims of individuals liable to deportation, where she is satisfied that deportation pending the outcome of an appeal would not breach human rights. The effect of such a certification is that the individual may appeal against his deportation only after removal from the UK.
Between 28 July 2014 and 31 December 2016 1,175 certificates had been issued pursuant to section 94B. By 31 December 2016, only 72 of those individuals had filed a notice of appeal with the tribunal from abroad. As the Supreme Court noted this is probably due to the practical, financial and logistical difficulties involved. As of 13 February 2017, not one of the 72 appeals had succeeded. This too reflects the difficulties in appealing successfully from abroad.
In October 2015 the Court of Appeal heard judicial review claims by Mr Kiarie and by Mr Byndloss, who had each committed crimes in the UK but who wished to appeal against deportation on grounds that it would interfere unjustifiably with their private and family lives. The Court of Appeal dismissed the claims, whilst holding the Home Secretary’s Guidance to staff to be unlawful in certain respects. It surprisingly suggested that it would be rare for section 94B certificates to be challenged successfully in the absence of a real risk of serious irreversible harm.
In the time that it has taken for the case to reach the Supreme Court, the certification power has been extended by the Immigration Act 1916 to any human rights claim, irrespective of whether the individual is liable to deportation. The Supreme Court however has specifically ruled that its judgment on section 94B will also impact on the exercise of the extended power.
In firmly overturning the Court of Appeal’s decision and its reasoning, the Supreme Court held that the key question is: would the appellants’ appeals be effective if brought from abroad? Its answer is a resounding ‘No’.
The Court concluded that the practice of the Home Secretary to routinely exercise her power under section 94B has been carried on:
‘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.’
The Supreme Court considered the significant and extensive evidence which had been produced by the appellants’ legal teams and by the Home Secretary (who had even gone to the constitutionally impermissible extent of asking judges for their views) and the helpful further evidence provided by Bail for Immigration Detainees through its intervention in the Supreme Court. In particular, the Court noted that:
(a) An appellant appealing from abroad would be likely to have difficulties in obtaining legal representation;
(b) even if they could obtain legal representation, an appellant and his lawyer would face formidable difficulties in giving and receiving instructions both prior to and during the hearing;
(c) rejecting the Home Secretary’s argument to the contrary, 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. The Court had ‘grave doubts’ as to whether an appellant can ordinarily be expected to run his appeal effectively and to persuade the tribunal as to his conduct’s future conduct and his character without giving oral evidence; and evidence given on a screen is not as satisfactory as live evidence given in person at the hearing;
(d) an appellant deported in advance of an appeal will probably face insurmountable difficulties in obtaining crucial supporting evidence (e.g. from a probation officer assessing the appellant’s risk or a social worker assessing the relationship between the appellant and his or her children).
The Supreme Court also raised concerns that the effect of a section 94B certificate would necessarily be to weaken the arguments on appeal. If an appellant is removed pending appeal, the strength of his integration in the UK and of his relationships with family members in the UK will inevitably be reduced in the time between removal and the appeal hearing.
Further guidance was also given as follows:
- The Supreme Court said the Court of Appeal had been wrong to say that substantial weight must be attached to the public interest in deporting foreign criminals. That is so when considering the appeal itself; but it is not so when considering whether to deport a person in advance of his appeal. The Supreme Court accepted that there is a public interest in ensuring that people do not commit crimes in the period pending an appeal against deportation, and, to that extent, there is a public interest in exercising the power in section 94B; but that public interest (even where it arises) may be outweighed by a wider public interest which is the public interest in ensuring that rights of appeal are effective [paragraph 35].The public interest in a foreign criminal’s removal in advance of an arguable appeal is therefore outweighed unless it can be shown that, if brought from abroad, the appeal would remain effective.
- The Supreme Court rejected the concern that, if permitted to remain in the UK pending his appeal, the foreign criminal might seek to delay its determination in order to strengthen his personal and family connections here. The court held that the tribunal system can deal with such a concern by being alert not to allow objectively unwarranted delay in hearing the appeal [paragraph 35].
- The Supreme Court refused to associate itself with the Court of Appeal’s comments that there may in practice be relatively few cases which might succeed in challenging a section 94B certificate in the absence of a risk of serious irreversible harm. It stated that the real risk of serious irreversible harm was only an example of when a breach of human rights would occur. The correct test to be applied, which had also not been applied in the Home Secretary’s Guidance, was whether removal pending appeal would breach human rights [paragraph 37, 39].
The Supreme Court concluded that the certificates represented a potential interference with the appellants’ rights under Article 8 of the European Convention of Human Rights, that the burden falls on the Home Secretary to establish that the interference is justified and proportionate and that she had failed to establish that the required balance is fair; on the contrary, the appellants had succeeded in establishing that it was unfair, although they did not bear the burden of doing so.
The role of the court on judicial review
The Court also made two subsidiary comments on the role of courts in judicial review cases.
First, less than three weeks before the hearing before the Court of Appeal, the Home Secretary had issued a supplementary decision letter to Mr Byndloss with more detailed reasons for rejecting his claim, and amending the basis for certifying the claim in order to address the challenges brought by Mr Byndloss in the judicial review proceedings. Most unfairly, the Court of Appeal treated that as being the relevant decision but without considering the unfairness of doing so and without considering Mr Byndloss’s further evidence on matters raised in that letter. The Supreme Court noted the disadvantage that Mr Byndloss suffered, but having already criticised the Court of Appeal’s approach in other respects, did not need to develop this further as the appeals were to succeed anyway on an even more fundamental point, namely the total failure to put in place an effective system for out-of-country human rights appeals. The Supreme Court however implicitly approved the valuable decision of a later division of the Court of Appeal in Caroopen  EWCA Civ 1307, and stated that the Court of Appeal might have been more concerned to address the disadvantage that Mr Byndloss suffered as a result of the Secretary of State’s last-minute reconstitution of the issues if it had had the benefit of the decision in Caroopen.
Second, Mr Byndloss’s team had provided detailed evidence and submissions as to the existence of a genuine and subsisting relationship with his children but the Court of Appeal considered that the Home Secretary had been entitled to find that there was no such genuine relationship. The Supreme Court did not need to consider Mr Byndloss’s relationship with his children because it rejected the section 94B certificates on even more fundamental grounds, irrespective of the existence of children. But it did consider the proper approach to be taken to the Home Secretary’s findings of fact when a court comes to deciding for itself whether deportation ahead of an appeal would breach human rights, asking to what extent it should inherit and adopt those findings. Departing from the view of the Court of Appeal, the Supreme Court held that it is not sufficient for the court to undertake only a Wednesbury review (even if supplemented by ‘anxious scrutiny’) of the Home Secretary’s findings of fact in the course of a judicial review challenge to a section 94B certificate. The Supreme Court emphasised that ‘even in the course of a judicial review, the residual power of the court to determine facts, and to that end to receive evidence including oral evidence, needs to be recognised’.
Manjit S. Gill QC, Ramby de Mello, Tony Muman and Jessica Smeaton appeared for Mr Byndloss. Richard Alomo appeared as junior counsel with additional written submissions on behalf of the Byndloss children.