R (on the applications of Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42

Two foreign criminals facing deportation challenged Home Secretary certificates under section 94B of the 2002 Act requiring them to bring their human rights appeals from abroad. The Supreme Court unanimously allowed their appeals and quashed the certificates, holding that out-of-country appeals would not be effective and breached article 8.

Facts

Mr Kiarie, a Kenyan national who had lived in the UK since age three, and Mr Byndloss, a Jamaican national with a wife and several children in the UK, were each convicted of serious drug offences. The Home Secretary made deportation orders against them as ‘foreign criminals’ under section 32 of the UK Borders Act 2007 and rejected their article 8 human rights claims. Although neither claim was certified as ‘clearly unfounded’, the Home Secretary issued certificates under section 94B of the Nationality, Immigration and Asylum Act 2002 (inserted by the Immigration Act 2014), with the effect that any appeal could only be brought after the appellants had been removed from the UK.

The Court of Appeal dismissed their applications for judicial review. They appealed to the Supreme Court.

Issues

The central issue was whether the section 94B certificates were lawful, in particular whether requiring the appellants to bring their arguable article 8 appeals from abroad would breach the procedural requirements of article 8 of the Convention because their appeals would not be ‘effective’.

Arguments

Appellants

The appellants contended that their removal in advance of their appeals would interfere disproportionately with their article 8 rights, particularly the procedural requirement of an effective appeal. They argued that they would face severe difficulties in obtaining legal representation, giving live oral evidence (essential to demonstrate remorse, rehabilitation and the quality of family relationships), securing supporting professional evidence (such as from probation officers, psychiatrists, and independent social workers), and overcoming the practical and financial barriers to giving evidence by video link or Skype from abroad.

Home Secretary

The Home Secretary submitted that there was a strong public interest in the deportation of foreign criminals which extended to deportation in advance of appeal; that fairness of the appeal would rarely turn on the appellant’s live oral evidence; that the issues could usually be addressed by written statements and evidence from family members in the UK; that the appellant could apply for evidence to be given by video link; and that the tribunal’s case management powers and independence sufficed to ensure procedural fairness.

Judgment

The Supreme Court unanimously allowed the appeals and quashed the certificates.

Lord Wilson (with whom Lady Hale, Lord Hodge and Lord Toulson agreed)

Lord Wilson held that section 94B’s overarching criterion was whether removal pending appeal would breach Convention rights, of which the ‘real risk of serious irreversible harm’ was only one example. The Home Office guidance had wrongly elevated that example into the criterion itself, leading to a legal misdirection in the original certifications.

He held that article 8 carries a procedural requirement that any challenge to a deportation that interferes with private or family life must be effective, drawing on Al-Nashif v Bulgaria, De Souza Ribeiro v France and R (Gudanaviciene) v Director of Legal Aid Casework. Where claims are not clearly unfounded, appeals are arguable and must be capable of effective presentation.

Lord Wilson found that, in practice, an arguable appeal against deportation under article 8 would in many cases require live oral evidence from the appellant – particularly to address remorse, rehabilitation, risk of reoffending, and the quality of family relationships. Removal in advance would significantly weaken the appeal substantively (by rupturing integration and family ties) and procedurally by:

• Uncertain availability of legal aid or representation;
• Inability to give evidence in person, with witness summonses unenforceable abroad;
• Severe financial, technical and logistical obstacles to giving evidence by video link or Skype, including consent of the foreign state, costs of equipment at both ends, compatibility issues, time differences, and inadequate tribunal IT facilities;
• Practical inability to obtain supporting expert evidence such as probation reports, psychiatric assessments and independent social worker reports.

He noted that between 28 July 2014 and 31 December 2016, of 1,175 certificates issued, only 72 appeals had been filed from abroad and none had succeeded. The Home Secretary had failed to establish that the interference with article 8 was proportionate, in particular that a fair balance had been struck.

Lord Carnwath

Lord Carnwath agreed in the result but with a different emphasis. He focused on the precondition in section 94B(2), which required the Home Secretary to satisfy herself, on adequate information, that removal would not breach section 6 of the Human Rights Act 1998. He accepted that substantive article 8 rights would not necessarily be infringed by interim removal and gave more weight than Lord Wilson to the public interest in deportation. However, on the procedural aspect, he held the Home Secretary had no adequate material before her, at the time of certification, demonstrating that effective video-link facilities and arrangements would in practice be available to enable a fair appeal. The burden was on the Home Secretary to satisfy herself of this, and she had failed to do so.

Implications

The decision establishes that, when certifying a human rights claim under section 94B, the Home Secretary must be satisfied that the resulting out-of-country appeal would be effective in compliance with the procedural requirements of article 8. It is not enough to assume that tribunal case-management powers and theoretical access to video link will suffice; the Home Secretary must address, in advance, whether the appellant will realistically be able to participate, give evidence (including, where necessary, live oral evidence), obtain representation, and adduce supporting evidence.

The judgment confirms that in judicial review of certification, the court must decide for itself whether removal would breach Convention rights, and may go behind the Home Secretary’s findings of fact where necessary to comply with section 6 of the Human Rights Act 1998; the Wednesbury approach, even with anxious scrutiny, is inadequate in that context.

Although decided in respect of foreign criminals, the Court noted that section 94B has since been extended to all human rights claims and that this decision will impact the lawful exercise of that wider power. The decision is significant for immigration practitioners, the Home Office and tribunals: it requires concrete provision of facilities and resources to enable effective participation from abroad before certification can lawfully be used. Lord Carnwath suggested that the Upper Tribunal, with its specialist expertise, would be best placed to develop guidance on what an effective out-of-country appeal requires in practice.

The decision does not prohibit out-of-country appeals as such, nor does it lay down that live oral evidence is always required; the limits depend on the circumstances of each case, the issues raised, and whether adequate procedural mechanisms are in place.

Verdict: Appeals allowed; the section 94B certificates issued against Mr Kiarie and Mr Byndloss were quashed.

Source: R (on the applications of Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42