UK Court of Appeal judges have rejected cases brought by two men against the use of a tough new law brought in to curb the rights of foreigners convicted of criminal offences to challenge deportation orders — the so called “deport first, appeal later” system.
The judgment is a strong endorsement of the new system in an early legal test of the new Section 94B of the Nationality, Immigration and Asylum Act. However, the judges have criticised “misleading” guidance on using the new provision issued by the Home Secretary, Theresa May.
Kevin Kinyanjui Kiarie, born in Kenya, and Courtney Aloysius Byndloss, a Jamaican, have hit the headlines as they challenged the provision that requires some of those facing deportation to leave Britain and make their appeals against deportation from their country of origin.
According to Section 94B of the Nationality, Immigration and Asylum Act 2002 (inserted in 2014 by the new Immigration Act — see provision below) this procedure should occur if the continued presence of the individual in Britain is considered “not conducive to the public good”.
Under the new provision the Secretary of State would certify this to be the case, and that the individuals’ ECHR Article 6 rights (to a fair hearing at court) would not be harmed by pursuing an appeal against deportation “out of country”. Certification can only occur if the the individual would not “face a real risk of serious irreversible harm if removed to the country or territory to which [the person] is proposed to be removed”.
The aim of the new law was to prevent convicted criminals and others spending long periods of time in the UK while their appeals wound their way through the courts. Mrs May had in her sights in particular appeals based on the Article 8 right to respect for a family life in the European Convention on Human Rights.
The Sunday Express and others have been outraged that nevertheless Kiari and Byndloss have been allowed to remain in Britain to seek judicial reviews against their certification under Section 94B “because if they were sent home they wouldn’t get legal aid paid for by the UK tax-payer”. What has gone unreported, though, is the lack of success they have actually had in getting those cases before the courts. Until the latest Court of Appeal case, Tribunal judges have denied them the right to bring the judicial reviews against their Section 94B removal.
Nor have the papers that criticised the men’s right to appeal in Britain followed up their stories by reporting the failure of that appeal (ie the case reported here) in what even the Express originally accepted was a “watershed” case.
The Court of Appeal
In the latest Court of Appeal hearing (Decision here) Lord Justice Richards (Elias and McCombe agreeing) established that the authorities’ operation of the Section 94B certification procedure, which has no right to appeal written in, is open to challenge by judicial review. The three justices gave the two men permission to pursue a judicial review – but then undertook that review themselves and promptly rejected their substantive cases against Section 94B certification.
So, on the one hand Richards accepted that the Secretary of State’s findings of fact when she considered the two men’s cases was amenable to judicial review. They could be examined by a court for “Wednesbury” unreasonableness (the standard test in judicial reviews: whether an administrative decision is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”). He said:
“In an article 8 case such as the present, [May] has to make relevant findings of fact and conduct a proportionality balancing exercise in relation to the facts so found. In my judgment, her findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context” (ie intense scrutiny suitable to serious human rights issues: see Budgdaycay).
On the other hand, he went on to accept that the Secretary of State had not behaved unreasonably in certifying the men under Section 94B. They had arguable Article 8 family life claims to resist deportation but they were cases that could be made “out of country”, as allowed under the new provision, without detriment to their rights to a fair trial or to their families. Certification would not “cause serious irreversible harm” , in the words of Section 94B.
The two cases
Byndloss is 35 and from Jamaica. He was granted indefinite leave to remain as the spouse of a British citizen in 2002. He was sentenced to three years in prison in 2013 for intending to supply drugs. He told the authorities in a questionnaire to establish whether he fell within exceptions for deportation (including any family rights claim under the UK Borders Act 2007 section 33) that he had eight children by his spouse and two other partners. The Home Office decided the public interest in deportation outweighed his right to private and family life. It told Byndloss: “it is not accepted that any of your children are dependent on you for their ability to reside in the UK, as they are British citizens and remain in the care of their respective mothers”.
Kairie, a Kenyan, aged 21, came to Britain when he was three. His claim is based on the length of time he has been in Britain and the fact that members of his family are in the UK. He has convictions for drug offences. The Secretary of State informed him he did not meet any of the Section 33 exceptions regarding deportation. She said:
“any relationships you may have with family members can be continued through modern means of communication upon your return to Kenya. There is nothing to suggest that you would be unable to obtain employment in Kenya. You are 20 years old and have no serious medical conditions. Furthermore, any skills/qualifications you have gained in the United Kingdom can only serve to assist you in finding employment in Kenya”.
Richards LJ considered whether Section 94B would offend against Article 6 (fair hearing) and Article 8 (family life, including the right to legal aid in family life claims) — including dealing with the commonsense notion that “a claimant who has to pursue an appeal while he is out of the country faces considerable disadvantages”. The case of both men, put by Kairie’s counsel, was that:
“the appellant would be faced with significant practical difficulties in procuring, preparing and presenting evidence for his appeal. He would not be present in the United Kingdom to begin and pursue the process of evidence gathering, including obtaining witness statements and documentary evidence to prove integration (school, social services) and rehabilitation (prison, probation); and he would be unable to present his case at the tribunal. The skeleton argument states that a video link is a possibility but could not be guaranteed.” (Para 55)
Lord Keen QC, for the Secretary of State, asserted in counter-argument that:
“out of country appeals will be determined by an independent, impartial and experienced specialist tribunal which will be mindful of its own obligations, as a public body, to ensure that they have the benefit of the procedural protections implicit in, and associated with, their substantive rights under article 8. The tribunals are under a duty to ensure that cases are dealt with justly and fairly” (Para 59)
Judges were aware of and able to deal with the difficulties not least because out of country appeals against refusals of entry clearance “have been a feature of the immigration appellate regime for several decades” and had been consistently held to provide an effective remedy.
Richards found this argument persuasive and expressed confidence in the ability of UK judges to understand the problems of out of country appeals and overcome them. “They will be alert to the fact that out of country appeals are a new departure in deportation cases, and they will be aware of the particular seriousness of deportation for an appellant and his family.” (Para 65)
He rejected the submission that an out of country appeal “would deprive the appellants of effective participation in the decision-making process and of a fair procedure”. So “the Secretary of State is entitled in my view to proceed on the basis that an out of country appeal will meet the procedural requirements of article 8 in the generality of criminal deportation cases”.
In Kairie’s case there had been procedural errors in his certification under Section 94B but not material ones, so certification was legal. In particular the decision had focused on the question of serious irreversible harm (ie on disproving that possibility) and failed to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act (unlawful to act contrary to convention rights) or Article 8 rights:
“I have no doubt he decision would have been the same if the correct approach to section 94B had been adopted and account had been taken of the relevant material put forward on the appellant’s behalf in these proceedings.”
If proper consideration had been given to Article 8 issues: “Removal to Kenya pending determination of an appeal involves only a short-term interference with Mr Kiarie’s private life in the United Kingdom. The difficulties of integration in Kenya for that limited period do not appear to me to be serious obstacles to removal and do not therefore have great weight in the balance.” (See below for Richards’ criticism of the Home Office guidance that may have led to this error of approach.)
In Byndloss’s case Richards said: “On the face of it, the conclusion reached in the letter [from the Home Office justifying its decision], that Mr Byndloss’s removal pending appeal would not be in breach of his article 8 rights or those of his wife, his former partners or his children, is well reasoned and compelling.”
On the interests of his children Byndloss’s counsel had asserted that “negative findings concerning Mr Byndloss’s relationship with the children and the part he plays in their lives are contrary to the evidence and are unreasonable”.
Richards rejected this position to the extent that the Home Offices’s views “are not open to successful challenge on grounds of perversity” (ie on Wednesbury grounds). This issue will ultimately be a matter for an immigration tribunal to look at when Byndloss makes his substantive (out of country) appeal.
Richards noted that on the evidence “there was no sufficiently meaningful relationship between Mr Byndloss and any of the children” and that at any rate “seeking to elevate children’s best interests beyond a primary consideration in decision-making and to turn them into the paramount or determinative factor” ran contrary to legal authority.
FreeMovement.org is critical of the Section 94B provision here, and of the judgment in the latest case here. It also notes that Section 94B currently affects mainly cases of foreign criminals being deported. “The Immigration Bill currently before Parliament would amend this section to remove that limitation so that the scheme applies to all cases other than asylum ones. This adds some significance to the judgment of the Court of Appeal.”
Also of interest
The guidance issue
The Home Office Guidance on Section 94B is here: Guidance (pdf).
Richard LJ’s criticism was that:
By subsection (3) [of Section 94B, [see below], a ground for certification is that the person would not, before the appeals process is exhausted, face “a real risk of serious irreversible harm” if removed to the country or territory to which he or she is proposed to be removed. That ground does not, however, displace the statutory condition in subsection (2) [that it “would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention)”], nor does it constitute a surrogate for that condition.
Even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification. She cannot certify in any case unless she considers, in accordance with subsection (2), that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act. That the risk of serious irreversible harm is not the overarching test was rightly accepted by Lord Keen on behalf of the Secretary of State at the hearing of the appeal.
It follows that the Secretary of State’s guidance on section 94B (see paragraphs 8-11 above) is inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm in subsection (3) and failing to focus on the central provision in subsection (2).
Earlier in the judgment he says: “The general tenor of the guidance was that in every case the relevant question when deciding whether to certify was whether removal pending any appeal would create a real risk of serious irreversible harm. For example, paragraph 1.2 stated that section 94B “allows a human rights claim to be certified … where it is considered that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return”. Paragraph 3.9 stated that where all that remained in an appeals process was an article 8 claim “and there is not a real risk of serious irreversible harm, and the person is otherwise removable (e.g. a travel document is now available), it is likely that certification will be appropriate”. The guidance contained nothing to direct the decision-maker to consider whether, apart from real risk of serious irreversible harm, removal pending determination of an appeal might be unlawful under section 6 of the Human Rights Act, in particular by reason of a breach of the person’s rights under article 8 of the Convention.”
From the guidance:
3.5 It will not normally be enough for a person to provide evidence that there is a real risk of harm which wouldbe either serious or irreversible. In order for certification not to be possible,there must be a real risk of harm that would be both serious and irreversible.
*a person has a medical condition but removal would not breach Article 3
Section 94B of the Nationality, Immigration and Asylum Act 2002
As inserted by section 17(3) of the Immigration Act 2014
Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation
(1)This section applies where a human rights claim has been made by a person (“P”) who is liable to deportation under—
(a)section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or
(b)section 3(6) of that Act (court recommending deportation following conviction).
(2)The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(3)The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”