FACTS
Kevin Kinyanjui Kiarie (born in Kenya) and Courtney Aloysius Byndloss (Jamaican) were liable to deportation being foreign nationals sentenced to periods of imprisonment of two and three years respectively. They made representations to the Home Office against their deportation based on their right to private and family life (Article 8 of the European Convention on Human Rights (ECHR)).
Their applications were refused and their claims certified under Section 94B of the Nationality, Immigration and Asylum Act as inserted by the Immigration Act 2014 (the so-called the ‘’deport first, appeal later” provisions). This empowers the Secretary of State to require certain immigration appeals to be brought from outside the United Kingdom if she considers that removal of the person pending the outcome of such appeal would not be unlawful under Section 6 of the Human Rights Act 1998 (which includes cases where removal would not put the individual at risk of serious irreversible harm). Mr Kiarie and Mr Byndloss applied for Judicial Review and, when refused, appealed to the Court of Appeal.
ISSUES
- Whether judicial review proceedings are available to challenge a Section 94B certification.
- Whether the Secretary of State had applied the right test in determining whether removal would be unlawful.
- Whether, in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, the Section 94B certification was in breach of the procedural guarantees inherent in Article 8 ECHR.
The Court also considered whether, in the instant cases, the Article 8 rights of the appellants would be breached on removal pending appeal.
JUDGEMENT
Ambit of Judicial Review
The Court of Appeal concluded that Section 94B certifications could be examined by a court for “Wednesbury” unreasonableness, so making these certifications liable to being quashed on judicial review.
Correct Test
The Court held that the test used by the Secretary of State was wrong in focusing on the question of serious irreversible harm and failed to apply the statutory test of whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of the appellants’ procedural or substantive rights under Article 8 ECHR [36]. Indeed, the absence of risk of serious irreversible harm constitutes only a ground for Section 94B certifications and is not a sufficient basis for them; it does not displace the statutory condition concerning Section 6 of the Human Rights Act (HRA), nor does it constitute a surrogate for that condition.
However, the Court found that if the certification decisions had focused on the question of breach of Article 8 ECHR, rather than on the question of serious irreversible harm, certification would still have been justified. The Secretary of State’s errors were therefore not material to the outcome (following AJ (Angola)).
Procedural Guarantees of Article 8 ECHR
The Court of Appeal confirmed that the Secretary of State was entitled to proceed on the basis that an out-of-country appeal would meet the procedural requirements of Article 8 ECHR in the generality of criminal deportation cases. Indeed, according to the evidence before the Court, it decided that the certifications under Section 94B were not in breach of the appellants’ procedural rights under Article 8 ECHR because it would not deprive them of either effective participation in the decision-making process or of a fair procedure.
In the Court’s view Article 8 ECHR does not guarantee access to the best possible appellate procedure but merely requires access to a procedure that meets the essential requirements of effectiveness and fairness; the tribunal system, by its flexibility and the fact that it offers particular procedures, such as two-way electronic communication, meets the procedural requirements of Article 8 ECHR. Moreover the Court expressed confidence in the ability of UK judges to understand and overcome any procedural problems arising in out-of-country appeals.
COMMENT
The Court of Appeal’s decision is helpful in clarifying that judicial review is available to challenge certification decisions under Section 94B and in refocusing the Secretary of State mind in such decisions on the question of whether removal pending appeal would breach Section 6 HRA.
However, it sets a very high threshold for challenging such certifications. In particular, it appears to gloss over the very significant practical difficulties appellants will face when appealing from abroad. In particular:
- how they are to afford the appeal fee and pay for legal representation (or apply for exceptional legal aid funding without any legal assistance to do so);
- how they are to stay in touch with their lawyers throughout the time leading up to the appeal with sufficient ease and frequency to enable their appeal to be properly prepared and how they are to obtain, translate and submit evidence to the tribunal, particularly when that evidence is itself is in the UK.
The Court of Appeal in Kiarie, whilst acknowledging that out-of-country appeals are a new departure in deportation cases, simply expressed its confidence in the ability of the Immigration Tribunal to ensure the effectiveness and fairness of such appeals [65].
The outcome of Kiarie is now all the more important since certification under Section 94B was extended to virtually all immigration cases by the Immigration Act 2016.
The cases will come before the Supreme Court in February 2017.
For further discussion, see our blog post on out-of-country appeals.