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”.

Lords committee issues new criticism of Theresa May over immigration

A UK Parliamentary committee has issued further criticism of Home Secretary Theresa May’s attempts to get flawed British immigration rules accepted by the courts.

May placed 290 pages of immigration code of practice rules in the House of Lords in an apparent kneejerk reaction to the Alvi case where the rules were struck down by the Supreme Court (reported here).

The court took the view that the Home Office was trying to treat the code as law for the purpose of barring immigration and for deportations even though they had passed through no proper parliamentary procedure. The day after the case, on 19 July, May sought to gain some sort of parliamentary sanction for the code by placing it before the Lords – a few days before their summer recess (the House of Commons was no longer sitting).

The House of Lords Secondary Legislation Scrutiny Committee has questioned this latest move on the grounds that the rules “may imperfectly achieve their policy objective”. Under the 1971 Immigration Act S.3(2) to count as legislation, such rules should lie in both Houses of Parliament for 40 days to allow parliamentarians to object or debate them if they wish – the so-called “negative procedure”.

Theresa May’s meaningless statement on immigration rules

A UK parliamentary committee has expressed concerns about the procedure used by Home Secretary Theresa May to give enhanced democratic credibility to tougher action on immigration.

Her new Immigration Rules have been presented to Parliament in a constitutionally innovative manner that may have no legal validity. This involved not simply passing the rules through the two Houses of Parliament by the traditional means for secondary legislation but having an additional debate (with no vote) in the House of Commons (but not the House of Lords) to assert the legal power of the Rules against the claims of international human rights law.

The intention behind the Statement of Changes in Immigration Rules (HC 194) was to use the debate “as a vehicle to gain Parliament’s endorsement of its approach to Article 8 of European Convention on Human Rights to assist the courts when deciding appeals on immigration matters”, noted the Secondary Legislation Scrutiny Committee of the House of Lords. (Committee Report 4.3 pdf)

However, the committee implies that the procedure was of dubious validity and constitutionally unlikely to have the desired effect – to force judges to reduce their reliance on Article 8(1) when judging immigration and deportation cases.