Kiarie and out-of-country appeals

The Court of Appeal’s recent decision on the cases of Kiarie and Bindloss (see our case note), appears to gloss over the very significant practical difficulties appellants will face when appealing from abroad. In this blog, Jean-Benoit Louveaux, our Head of Administrative Justice, and Laetitia Belsack, a JUSTICE intern, discuss those difficulties.

Financial difficulties

The most serious such difficulty is financial, specifically how appellants, who will usually be forced to return without having secured employment and whose first priority will be to feed and accommodate themselves on return, will be able to afford the fee to lodge their appeal, on the one hand, and for legal representation in the UK on the other.

The issue of the fee was not explicitly dealt with by the Court in Kiarie but is likely to be a significant obstacle for appellants in future. Currently set at £140 for an oral hearing, the fee is set to rise to as much as £800 following a recent Government consultation, an enormous hurdle given that income levels abroad are generally much lower than in the UK. For instance, the annual GDP per person, according to figures published by the World Bank, is US$1581.60 in India and US$1429 in Pakistan, two Commonwealth countries with strong ties to the United Kingdom accounting for a substantial proportion of immigration appeals; the figure for Burundi is US$276.

As to the cost of legal representation in the UK, this varies but typically presents an even higher financial hurdle. Yet having such legal representation is critical for many appellants so to enable them to navigate the complexities of the UK appeals process, particularly for those with limited knowledge of English (though that does not apply in the present case). Without legal representation, it is very difficult for many appellants to understand the appeals process, to complete and submit the relevant forms and to submit the relevant evidence on time and in the form required by the tribunal.

Legal Aid difficulties

The Court of Appeal has previously held in Gudanavicienne that the procedural guarantees of Article 8 ECHR may require legal aid to be granted to ensure that the legal proceedings are fair and effective. However, the Court in Kiarie dismissed the issue by stating that out-of-country appellants would be in no worse position than appellants appealing in-country with respect to legal aid where, for complex cases, they may apply for exceptional funding. This appears to ignore the very real difficulty that appellants abroad will face in applying for exceptional funding without any legal assistance to do so.

Communication difficulties

Appellants will also face difficulties in relation to communication: how to stay in contact with their lawyers throughout the time leading up to the appeal and with sufficient ease and frequency to enable their appeal to be properly prepared; and how to obtain, translate and submit evidence to the tribunal, particularly when that evidence is itself is in the UK.

The Court in Kiarie found that that out-of-country appeals will not face serious obstacles in these days of electronic communications [66]. However, this appears to ignore the fact that, according to figures published by the International Telecommunications Union, the United Nations specialised agency for information and communication technologies, of the 940 million people living in the least developed countries, only 89 million (9.5%) use the Internet. Appellants abroad may therefore find themselves lacking the infrastructure or services necessary to enable them to fully prepare for and participate in their appeal.

The UK tribunal system itself also presents some difficulties in this regard. Quite aside from the reported resistance individual immigration tribunals have shown to receiving electronic communication, such as being unable to guarantee a decent Internet connection in the tribunal or refusing permission to plug in a laptop (see blog by Colin Yeo), the tribunal service has also, historically at least, placed an enormous burden on appellants wishing to produce evidence ‘remotely’.

In AM (Cameroon) the Court of Appeal endorsed the decision of the First-tier Tribunal (and then Upper Tribunal) refusing permission to give evidence by telephone from the country of origin because of the “difficulty in verifying the identity of the witnesses at the other end and the costs implications”. In Nare, the Upper Tribunal stipulated that evidence ought normally to be brought from a Tribunal hearing centre, that the giving of the evidence will be subject to on-site supervision by court or Tribunal staff and that those giving evidence from abroad should inform the Tribunal that the relevant foreign government raises no objection to live evidence being given from within its jurisdiction. Quite how out-of-country appellants are to arrange and pay for such facilities is not explained.

The consequence of out-of-country appeals

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].

All these difficulties undermine the Court of Appeal’s findings that out-of-country appeals are sufficiently fair to satisfy the procedural requirements of Article 8. In fact, the impact of Section 94B on the ability of appellants to effectively pursue their appeal has been dramatic.

From July 2014 to August 2015, more than 1,700 foreign national offenders were removed under the ‘deport first, appeal later’ powers; of these, only 426 appealed (25%) against their deportation, a marked drop from the 2,329 who appealed in the previous year (to April 2013); of the 426 out-of-country appeals, 102 appeals were determined, 13 allowed and 89 dismissed, giving a 13% success rate; this is in contrast to the 602 appeals that were successful in the previous year, a 26% success rate.

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. Indeed, one questions whether the outcome in Kiarie might have been different had the appellants not been tainted by their criminality, something that the vast majority of out-of-country appellants in future will not be. One can only hope that the Supreme Court takes a different view when the case comes before it in February of next year.

Jean-Benoit Louveaux and Laetitia Belsack