Deportation of foreign criminals pending immigration appeals held unlawful

Two foreign criminals have succeeded in having quashed by the courts, certificates by the Home Secretary that they could be removed from the United Kingdom pending their appeals against deportation orders.

Five Justices of the Supreme Court unanimously ruled that the public interest in the removal of an appellant in advance of their appeal was outweighed by the public interest that a right of appeal, conferred on the appellants by statute, should be effective.

The two appellants, Byndloss and Kiarie, of Jamaican and Kenyan nationality respectively, were convicted separately for serious drug related offences. In October 2014 the Home Secretary made orders for their deportation, rejecting their claims that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights. She also issued certificates under s 94B of the Nationality, Immigration and Asylum Act 2002, with the effect that they could bring their appeals against the immigration decisions only after returning to Jamaica and Kenya, though she chose not to instead certify their human rights claims as “clearly unfounded” under section 94.

Until 30 November 2016, the Secretary of State might certify the claim under s 94B if she considered that the removal of the person pending the outcome of their appeal would not be unlawful under s 6 of the Human Rights Act 1998 and that the person would not face a real risk of serious irreversible harm if removed. While the court had recently ruled that a person could successfully resist deportation by reference to their private or family life only if the circumstances were “very compelling”, the separate question in this appeal was, where such a person had a right to appeal against a deportation order, however difficult it might be for them to succeed, did the Home Secretary breach their human rights by deporting them before they could appeal?

The Court of Appeal ruled that she did not, but the Supreme Court unanimously allowed the appeal and quashed the certificates.

Lord Wilson, with whom Lady Hale, Lord Hodge and Lord Toulson agreed (Lord Carnwath gave a concurring judgment), said the fundamental objective of s 94B arose from the fact that the deportation of a “foreign criminal” was conducive to the public good. However, Parliament gave foreign criminals a right of appeal against a deportation order under s 82(1) and (3A) of the Nationality, Immigration and Asylum Act 2002. The public interest in the removal of an appellant in advance of their appeal was outweighed by the public interest that a right of appeal should be effective.

In proceedings for judicial review of a s 94B certificate, the tribunal had to decide for itself whether deportation in advance of appeal would breach the appellant’s ECHR rights, and assess for itself the proportionality of deportation at that stage, albeit attaching considerable weight to public policy considerations relied on by the Home Secretary. The application of the Wednesbury criterion to the right to depart from the Home Office’s findings of fact, even when heightened to “anxious scrutiny”, was inapt. Under s 6 of the Human Rights Act 1998, the court might require to be more proactive than application of that criterion would permit.

While the effect of an appellant’s immediate removal from the UK is likely to significantly weaken their arguable appeal, what was determinative of these appeals was whether the issue of a s 94B certificate obstructed an appellant’s ability to present their appeal against the deportation order effectively. In an appeal brought from abroad, the appellant’s ability to present their case was likely to be obstructed in a number of ways, including giving and receiving instructions regarding legal representation prior to and during the hearing and giving live evidence to assist the tribunal in its assessment of the appellant's character and the quality of their relationships with others in the UK. Giving evidence on screen might be enough to render the appeal effective for the purposes of article 8, but the financial and logistical barriers to the appellants doing so giving evidence on screen from abroad were almost insurmountable.

The Home Secretary had therefore certified article 8 claims of foreign criminals under s 94B in the absence of a ECHR-compliant system for the conduct of an appeal from abroad. Deportation pursuant to the certificates would therefore interfere with the appellants’ rights to respect for their private and family life in the UK pursuant to article 8 and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The Home Secretary had failed to establish that deportation in advance of appeal struck a fair balance between the rights of the appellants and the interests of the community, and therefore the decisions to issue the certificates were unlawful.

Lord Carnwath's reasoning was that it was wrong in principle for the Home Secretary, as the opposing party to the appeal, to be allowed to dictate the conduct of the appellant’s case or the evidence on which they chose to rely. She had to be able, at the time of certification, to satisfy herself that the necessary facilities could and would be provided.

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