The UK government’s “deport now, appeal later” policy
Looking at the landmark UK Supreme Court decision in R (on the application of Kiarie and Byndloss) v Secretary of State for the Home Department  UKSC 42 on out-of-country rights of appeal.
The “deport now, appeal later” policy was introduced by the Coalition government in 2013 with the stated aim of clamping down on “foreign criminals” who try to entrench their family life in the UK by dragging out the appeal process. More than 1,000 people were deported in breach of their human rights.
From 28 July 2014, the Immigration Act 2014 introduced a new section 94B to the Nationality Immigration and Asylum Act 2002 (‘NIAA 2002’). The effect of a section 94B certificate was that the Secretary of State could remove someone from the UK even if they had not had the opportunity to appeal against a deportation decision (hence the phrase “deport now, appeal later”). Any appeal would have to be brought from outside the UK.
Policy guidance instructed caseworkers to consider whether interim removal would result in “serious irreversible harm” and gave highly restrictive examples of what circumstances satisfied this demanding test (such as children with terminal illness who could only be cared for by the deportee).
From the outset there were concerns about the Tribunal’s ability to fairly conduct ‘out-of-country’ appeals given the lack of sophisticated technology and the difficulty of establishing reliable video-link connections across the globe. There were also concerns about the inappropriate use of the certification power leading to inevitable judicial review challenges.
The Court of Appeal’s decision
The first major legal challenge to a certification decision under section 94B NIAA 2002 was R (Kiarie) and Another v Secretary of State for the Home Department  EWCA Civ 1020.
The Court of Appeal found that the Secretary of State’s guidance was misleading.
The correct approach was set out at §§ 33 to 35, namely that claimants must show that interim removal would result in a breach of human rights. On a judicial review challenge against a section 94B certificate, the Court is to make its own assessment of proportionality. However, Lord Justice Richards of the Court of Appeal was satisfied that the Immigration Tribunals were sufficiently flexible to make out-of-country appeals in deportation cases a fair and adequate procedure. They were specialist Tribunals who could be trusted to do justice to an appellant, even if that meant putting in place sophisticated video-conferencing technology.
The appellants appealed to the UK Supreme Court arguing that the procedural requirements of Article 8 had been breached.
The Supreme Court’s decision
Lord Wilson gave the leading judgment and agreed with the appellants’ main argument.
A central theme that runs through of the judgment of Lord Wilson is whether or not an out-of-country right of appeal gave the claimants a fair opportunity to present their case. A number of factors suggested that the existing facilities in the Tribunal and practicalities of Article 8 appeals meant that there was no effective right of appeal:
- Since 31 December 2016, some 1,175 certificates were issued under section 94B. Of the 72 out-of-country appeals that had been heard to date, none were successful;
- Deportation appeals require appellants to “assemble and present powerful evidence” on a range of matters. That task was likely to be more difficult from abroad;
- The practical effect of the section 94B certificate was to weaken appeals. This was arguably unfair given that the Secretary of State was both the maker of the certificate and the party opposing the appeal (§§ 57 and 58). Certification actually obstructs the presentation of an appeal;
- Legal aid is generally unavailable for persons appealing against deportation (as it is for those appealing against immigration decisions);
- Oral evidence in person is normally required in deportation cases in order to allow the Tribunal to properly assess a person’s character (and in particular the extent to which the deportee has mended their ways)
All this led the Court to conclude that live evidence is required for there to be an effective appeal against deportation in most cases (§ 63).
Concerns had already been raised about the facilities available for the Tribunal to hear appeals by video link.
The Ministry of Justice and the Secretary of State have not put in place any facilities to enable appellants in these cases to give live evidence. For these reasons, the certificates in this case were a disproportionate breach of the procedural safeguards in Article 8(2) of the Convention.
What are the implications for those affected?
Clients whose human rights claims against deportation have been certified under section 94B may now bring (or continue to pursue) judicial review challenges on the basis that according to the principles in Kiarie, the certificates are disproportionate and should be withdrawn. In most cases, such challenges should succeed.
Some people may have already been removed or departed voluntarily and had their appeals. Appellants may be able to apply for:
- compensation under the Home Office’s internal scheme;
- leave to enter based on exceptional circumstances;
- setting aside any Tribunal determinations in which they were unsuccessful.
The practical difficulties of obtaining those instructions from a distance are significant. There may have been injustices that are impossible to monitor or remedy (such as interim removals and refused appeals that are non-compliant with the 1950 Convention).