A right of appeal against deportation could mean little if the appellant had to leave before giving evidence. The question for the Supreme Court was whether Mr Kiarie and Mr Byndloss could effectively present their human-rights appeals from Kenya and Jamaica. It examined what participation would actually require, including legal advice, evidence and a workable link to the hearing.
Two arguable appeals, and a requirement to leave first
Both men had indefinite leave to remain and family ties in the United Kingdom. Each had been convicted of a serious drugs offence. The Home Secretary ordered their deportation. They relied on their established private or family life in the UK to challenge those decisions.
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The Home Secretary rejected their claims that deportation would breach article 8 of the European Convention on Human Rights, the right to respect for private and family life. She did not certify either claim as clearly unfounded, so the claims were treated as arguable. Even so, with the deportation orders of October 2014 she certified both claims under section 94B of the Nationality, Immigration and Asylum Act 2002. Mr Kiarie could appeal only from Kenya, and Mr Byndloss only from Jamaica. There was no appeal against a certificate; the challenge was by judicial review. Lord Wilson stressed that the question was not whether either deportation appeal should succeed. It was whether the certificates were lawful.
How the power was meant to work
Section 94B, in the form applicable in 2014, allowed certification if removal while an appeal was pending would be lawful under the Human Rights Act 1998. A real risk of serious irreversible harm was one consideration. Even without that risk, removal could still be unlawful if it denied the person an effective opportunity to challenge the decision.
Home Office guidance focused on serious irreversible harm. Neither man had been invited to address the use of the new power. The Court of Appeal recognised the initial misdirection but upheld the certificates. It thought the right test would have produced the same result for Mr Kiarie and treated a later letter as a fresh decision for Mr Byndloss.
An effective appeal was the limit on the power
Lord Wilson, with whom Lady Hale, Lord Hodge and Lord Toulson agreed, did not accept that the public interest in deportation carried substantial weight in favour of removal even before an arguable appeal. There was a public interest in removing someone who might reoffend if he stayed, but it was outweighed by the interest in an effective right of appeal unless the appeal would remain effective from abroad. A section 94B certificate is used precisely where the claim is not clearly unfounded.
In the underlying deportation appeal, the tribunal could hear new evidence, make findings and decide for itself whether removal would breach article 8. On judicial review of a certificate, the court likewise had to decide whether removal before the appeal was proportionate. Giving weight to the Home Secretary’s policy judgment did not limit it to asking whether her findings were unreasonable.
Strasbourg authority, including De Souza Ribeiro v France, did not require every article 8 challenge to suspend removal automatically. It did require an effective opportunity to challenge deportation, with sufficient procedural safeguards. Domestic authority led to the same requirement. The demand was strict here because deportation would profoundly affect the men’s lives and, absent exceptional circumstances, readmission would not even be considered for ten years; their appeals were arguable but faced a formidable hurdle; and the opposing party was the person seeking to remove them before the hearing.
Why an appeal from abroad would not be effective
The prospect of an appellant conducting a case alone, or trying to instruct a representative from abroad, had to be taken seriously. Ordinary legal aid was generally unavailable for such claims at the time. Even a represented appellant had to be able to give instructions and assemble evidence about relationships and rehabilitation.
A tribunal assessing whether someone had reformed or had close family relationships might need to hear that person answer questions. A written statement was no substitute for that opportunity. A video link might suffice, but there was little evidence of an affordable, workable arrangement for either appellant. Removal could also make it much harder for professionals to assess the appellant or observe the family together.
The figures illustrated the result. Between 28 July 2014 and 31 December 2016 the Home Secretary issued 1,175 certificates in foreign-criminal cases. Only 72 people had filed an appeal from abroad by the end of that period. As of 13 February 2017, none of those 72 appeals had succeeded. Lord Wilson held that the certificates were a potential interference with article 8, including the right to an effective challenge, and that the Home Secretary had failed to show a fair balance. He did not decide whether certification was rationally connected to its aims or whether a less intrusive measure would have achieved them.
Lord Carnwath’s narrower route
Lord Carnwath agreed with the result on a narrower basis. Before certifying, the Home Secretary had to have adequate information to satisfy herself that the men’s procedural rights would be protected. She could not decide for an appellant that his oral evidence would be unnecessary. There was insufficient evidence that an effective appeal could in practice be arranged in either case. He left open whether suitable arrangements could overcome those difficulties in another case.
Verdict: The Supreme Court unanimously allowed both appeals and quashed the section 94B certificates. The Home Secretary had not established that either man could pursue an effective appeal from abroad. The Court did not decide whether either man’s deportation would ultimately be lawful.
Source: R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42
