R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent); R (on the application of Byndloss) (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 42
The UK Supreme Court has unanimously held that deportation certificates issued by the United Kingdom’s Secretary of State for the Home Department were unlawful. The recipients of the deportation orders in this case were entitled to appeal against the Home Secretary’s immigration decisions by a judicial review procedure to the First-tier Tribunal (Immigration and Asylum Chamber) (the Tribunal). However, the effect of the deportation orders was that the appeals could only be brought after the appellants’ removal from the UK. This is known as the ‘deport first, appeal later’ policy. The Court found that difficulties with evidence and legal representation meant these appeals were not sufficiently effective.
The appellants in the case were Mr Kiarie, a Kenyan national and Mr Byndloss, a Jamaican national (the Appellants). The Appellants had indefinite leave to remain in the UK and have long-standing family ties in the UK. Following their separate convictions for drug related offences, the Home Department (the Home Secretary or the Respondent) issued Mr Kiarie and Mr Byndloss with section 94B certificates under the Nationality, Immigration and Asylum Act 2002 (UK).
At the time that the section 94B certificates against the Appellants were issued, section 94B applied to a foreign criminal who faced deportation proceedings and made a human rights claim. Under section 94B, the Home Secretary was entitled to remove that person from the UK pending his or her appeal if it was not unlawful under section 6 of the Human Rights Act 1998 (UK), which prohibits public authorities from acting in a way which is incompatible with a right granted by the European Convention on Human Rights (the Convention). The Home Secretary rejected claims by Mr Kiarie and Mr Byndloss that their removal from the UK would breach their rights under Article 8 (the right to private and family life) of the Convention. Therefore, the Appellants would only have been able to bring appeals from Kenya and Jamaica.
The Appellants were supported by Bail for Immigration Detainees (BID), a charity who intervened in the case. BID adduced new evidence to the Court about the practical problems for appellants in conducting effective “out of country” appeals.
The key question before the Court was: does the Respondent breach a person’s human rights by deporting him or her before he or she can bring an appeal against the Home Secretary’s immigration decision and without making the proper provision for that person to participate in the appeal hearing?
The Supreme Court overturned the Court of Appeal’s decision, unanimously allowed the appeal and quashed the section 94B certificates issued to Mr Kiarie and Mr Byndloss. Lord Wilson, with whom Lady Hale, Lord Hodge and Lord Toulson agreed, delivered the majority judgment.
Deportation and rights under the Convention
The Appellants proposed that they would argue that their deportation would breach their rights under Article 8 of the Convention before the Tribunal. The Court emphasised that the question of whether deportation breaches Convention rights was not one for it to consider in this case and was recently addressed by the Supreme Court in Ali v Secretary of State for the Home Department  UKSC 60. In summary, it is for the Tribunal to decide if it does and to consider the proportionality of deportation.
Ultimately, the majority judgment turned towards the effectiveness of an “out of country” appeal. The Home Secretary submitted that deportation of foreign criminals in advance of their appeals is in the public interest. Richards LJ echoed this view in the Court of Appeal judgment. However, the Supreme Court took a different view and noted that a wider public interest is at play on the facts; Lord Wilson stated, “I refer to the public interest that, when we are afforded a right of appeal, our appeal should be effective”.
Obstructing presentation of the appeal
The reasoning of the lead judgment focussed on an appellant’s ability to assemble evidence and to present arguments, in particular about his or her life and relationships in the UK. It also considered the issues with obtaining legal representation that an appellant abroad would face (for instance, the unavailability of legal aid and the difficulties in instructing lawyers from abroad).
The Court also assessed the importance of an appellant giving oral evidence. In this context, the Appellants have bad criminal records and would have to portray that they have reformed characters to the Tribunal. Lord Wilson stated that, “I cannot imagine that, on its own, the statement will generally cut much ice with the [T]ribunal”. Whilst the Court accepted that live evidence by appellants on screen may suffice, it was concerned that the required facilities were not available to the Appellants. The Court was not satisfied that the Respondent gave any serious consideration to how these logistical and technical problems would be addressed.
The Court determined that the issues with collecting and presenting evidence, legal representation, and oral evidence arising in “out of country” appeals obstruct the presentation of an appeal. These place financial and logistical barriers on appellants that undercut the effectiveness of an appeal.
The Home Secretary had issued 1,175 section 94B certificates between 28 July 2014 and 31 December 2016. Although all the recipients of those certificates had arguable appeals, only 72 had filed notices of appeal by 31 December 2016 and until the Court’s judgment was made, none had succeeded. Indeed, these statistics highlight the tension between a foreign criminal’s right to appeal an immigration decision and the practical barriers to pursuing such an appeal. Whilst the decision in this case is focussed on appeals procedure, it will have real practical implications. The decision places a higher threshold on the government that will restrict its exercise of the ‘deport first, appeal later’ policy.
This decision also highlights the potential weight of evidence presented by intervening organisations. The Court had the opportunity to examine additional evidence submitted by BID. By relying on this evidence, the Court concluded that the demands placed on appellants to obtain video and equipment access are financially, technically and logistically burdensome.
The full text of the decision can be found here.
Farah El-Yacoubi is an Associate at Allen & Overy.