Yesterday, the Supreme Court gave their ruling on R (on the application of Kiarie) v Secretary of State for the Home Department and R (on the application of Byndloss) v Secretary of State for the Home Department  UKSC 42. The learned judges unanimously allowed the appeal of Mr Kiarie and Mr Byndloss, quashing the certificates issued by the Home Secretary under section 94B of the Nationality, immigration and asylum Act 2002.
Section 94B of the Nationality, immigration and asylum Act 2002 allows a human rights claim to be certified where the appeal process is yet to start or be completed if deporting the person before the appeal process is exhausted would not be unlawful under section 6 of the human rights Act 1998.
Certification under section 94B means the right of appeal against the decision to refuse the human rights claim will not stop you being removed. You will only be able to submit an appeal after you have left the UK.
The facts of the case
Mr Kiarie is a Kenyan national who came to the UK in 1997, at the age of three. Mr Byndloss, who holds Jamaican nationality, has lived in the UK since the age of 21. He has a wife and children residing in Britain.
Both men were convicted of serious drug related offences and in 2014 the Home Office made an order for them to be returned to their country of origin.
Both men argued that deportation would breach their rights under Article 8 of the ECHR; however, their claims were rejected by the Home Office.
When making the deportation orders, the Home Secretary issued certificates under section 94B of the Nationality, immigration and asylum Act 2002. In doing so, she indicated that an appeal on Article 8 grounds was arguable, but by issuing the certificates, she made it impossible for the men to bring an appeal until after they had returned to Kenya and Jamaica.
The issue for the Supreme Court
The court made it clear that the legal issue before them did not concern whether the Appellants could rely on Article 8 to halt their deportation. Instead, the matter to be decided was: where the law gives such a person a right to appeal to a tribunal against a deportation order, then, however difficult it may be for him to succeed, does the Home Secretary breach his human rights by deporting him before he can bring the appeal and without making proper provision for him to participate in the hearing of it?
The Court of Appeal held the Home Secretary was not breaching the Appellants’ human rights by deporting them.
The Supreme Court disagreed and held that the Home Secretary’s certificates were unlawful because they were issued “without an effective system for the conduct of an effective appeal from abroad. Their affect would be to substantially obstruct presentation of the appeals - that’s why they are unlawful”.
The Supreme Court’s reason for their decision
The lead judgment was given by Lord Wilson. He provided the following reasons for the court’s unanimous decision:
- The right of appeal to the tribunal must be an effective right.
- The appeals, which are profoundly important to the Appellants, will not be easy to bring before the Tribunal.
- The Appellants must be in a reasonable position to assemble their evidence and present their arguments; in particular, with regards to their level of integration in the UK, the quality of their relationships with others, and why they are unlikely to re-offend.
- While it is possible that the Appellants may secure support and representation for their appeal from outside the UK, it is equally likely they would have to conduct proceedings on their own.
- The collection of evidence, which may include expert evidence, from overseas is difficult.
- Without the ability for the Appellants to give oral evidence to the Tribunal and participate in the hearing, their appeals are highly likely to fail.
- The ability to give evidence via video link or Skype is beyond the financial resources of the Appellants. They would have to pay for the facility to give on-screen evidence, not only at the foreign end, but at the Tribunal itself.
- Statistics show that when foreign criminals have been deported prior to their appeals, most never file notice of appeal, and if their appeal does reach the Tribunal, it invariably fails.
What the decision means for non-EEA nationals facing deportation
This decision is a major victory for immigration solicitors and their clients, as it allows them a far greater chance of producing the best appeal possible. As Lord Wilson so eloquently pointed out; trying to launch an appeal, collate the evidence and communicate with immigration lawyers is extremely difficult from abroad. Both Kenya and Jamaica are very poor countries, and although there are pockets of wealth, both countries lack good infrastructure (including that to support telecommunications and IT). In Kenya 42% live below the poverty line. In Jamaica, the figure hovers around 20%.
Given these facts, it is easy to see why trying to launch and manage a successful appeal in a UK court would be almost impossible for someone residing outside the UK.
To allow such a situation to occur would be a clear breach of the Home Secretary’s duty under the human rights Act 1998.
OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team dealing with appeals, deportations and human rights consists of Smit Kumar, Hans Sok Appadu, and Maryem Ahmed, any of whom would be happy to talk to you about challenging a Home Office decision on human rights grounds or fighting a deportation.
By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0207 936 9960.
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Posted on: Thursday, 15 June, 2017