Tag Archives: deportation

Kiarie and Byndloss: foreign criminals lose Section 94B Immigration Act appeal

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”.

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Filed under Analysis, Criminal law, ECHR, European Convention on Human Rights, Human rights, Immigration law, Law, Media, Politics, Public law, UK Law, UK Politics

Can Pepper v Hart save Julian Assange?

The UK Supreme Court Julian Assange European Arrest Warrant case has been delayed for two weeks for new legal arguments to be put regarding the meaning of the UK legislation that enacted the EAW system. Those arguments may draw on the minority pro-Assange judgment of Lord Mance who made interesting use of the principle in Pepper v Hart [1992] UKHL 3 (summarised below) – that judges may consult speeches in Parliament to establish the purpose or meaning of statutes.

The issue at stake is whether “judicial authority” (the words used in the 2003 Extradition Act) for the purpose of issuing the arrest warrants can include mere prosecuting authorities, as is the practice in some European countries.

Sweden’s prosecutors are seeking Assange’s arrest to question him on allegations of sexual offences. If UK law requires a court or judge to issue the warrants, then Sweden cannot have him. It is a question of how the words “judicial authority” are interpreted, and Mance cited parliamentary debate on the Extradition Bill in Hansard to suggest that MPs were clear in their minds that they were voting for judges and courts, not for prosecutors. Continue reading

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Filed under Constitution, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics