The Court of Appeal has given judgment in the test case on the meaning and effect of the “deport first, appeal later” provisions of the Immigration Act 2014. The case is R (On the Application Of Kiarie) v The Secretary of State for the Home Department  EWCA Civ 1020 and the leading judgment is given by Lord Justice Richards.
The short story is that the Court finds that the Home Office has been applying the wrong legal test in these cases but that it probably does not matter and removal while one attempts to pursue an appeal will generally be acceptable.
The case concerns the interpretation and effect of section 94B of the Nationality, Immigration and Asylum Act 2002, amended into that Act by the Immigration Act 2014 with effect from 28 July 2014. Richards LJ is unimpressed by the dementedly complex commencement orders that achieved this, saying that he was “appalled by the complexity of that legislative jigsaw but there is no dispute that the result is as stated.”
At the moment, the section reads:
94B. 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) …
(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.
It can be seen that the scheme applies only to persons liable to deportation, which generally means foreign national criminals. 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.
The correct test
Part of the judgment concerns the relationship between subsections (2) and (3). The Home Office has in guidance made out that the right test is set out in subsection (3). During the hearing it was conceded that this is wrong and that the guidance for caseworkers would need to be amended. In its current incarnation it was described by Richards LJ as “liable to mislead decision-makers into applying the wrong test”.
It wasn’t just Home Office officials who were at risk of being misled. In refusing permission to apply for judicial review, Upper Tribunal Judge Kopieczek had also applied the wrong test, finding that the Secretary of State “was unarguably entitled to certify the human rights claim under Section 94B of the 2002 Act, concluding that there would not be a risk of serious irreversible harm if removed.”
The correct approach is to see subsection (2) as the test to be applied, with subsection (3) merely as an example of or ground for applying the main test:
The central provision in section 94B is subsection (2): the power to certify arises only “if the Secretary of State considers that … 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 …” (emphasis added) … By subsection (3), 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), nor does it constitute a surrogate for that condition.
The correct test is whether removal for the duration of the appeal will breach the appellant’s human rights, not whether it will cause serious irreversible harm.
Public interest in removal during a pending appeal
Richards LJ makes the point that while it might be thought that the public interest in favour of removal of a foreign criminal pending the outcome of his or her appeal is less than the public interest in favour of a final deportation, it being for only a short period of time and where final deportation may occur anyway. However, given that Parliament has specifically legislated to remove foreign criminals pending their appeals Richards LJ holds that there is a strong public interest in such an outcome:
But the very fact that Parliament has chosen to allow removal for that interim period, provided that it does not breach section 6 of the Human Rights Act, shows that substantial weight must be attached to that public interest in that context too: Parliament has carried through the policy of the deportation provisions of the UK Borders Act 2007 into section 94B. In deciding the issue of proportionality in an article 8 case, the public interest is not a trump card but it is an important consideration in favour of removal.
Next Richards LJ turns to whether an out of country appeal can be compliant with Article 8.
Procedural compliance with Article 8
The starting point for Richards LJ in assessing whether out of country appeals might be non compliant with the procedural safeguards of Article 8 was the case of R (Gudanaviciene) v Director of Legal Aid Casework  EWCA Civ 1622. It is also the end point, which is perhaps not the right approach given that case concerned the grant of legal aid to fund legal assistance rather than the right to participate in proceedings in person, which is what an out of country appeal is about.
In any event, there was no suggestion that out of country appeals would breach a person’s human rights in all cases. Parliament has provided for out of country appeals in some cases and such an argument would have been doomed to fail. Instead it was argued that an out of country appeal would be unfair in some cases. On behalf of Mr Kiare, Dichard Drabble QC argued that an out of country appeal would deprive him of effective involvement in the appellate process and would result in unfairness because:
- Out of country appeals are generally less effective than in country appeals because of the inherent disadvantages in doing so;
- Removal during the course of the appeal process would create significant practical difficulties in procuring, preparing and presenting evidence for such an appeal because some appellants would not be able to begin and pursue the process of evidence gathering, such as obtaining witness statements and documentary evidence to prove integration (school, social services) and rehabilitation (prison, probation), and they would be unable to present their cases at the tribunal, for example because a video link is a possibility but could not be guaranteed;
- Removal pending appeal would have a clear impact on the overall fairness of the proceedings, including the appearance of fairness;
- Requiring the appellant to pursue an appeal out of country would be likely to diminish his chances of success and, by parity of reasoning, to enhance the Secretary of State’s prospects of successfully resisting the appeal.
These arguments were rejected by the Court.
Richards LJ accepts that an out of country appeal would put one of the parties at a disadvantage but observes that Article 8 merely requires access to a procedure that meets the essential requirements of effectiveness and fairness. Out of country appeals have been in place for entry clearance cases for many years and the success statistics for out of country cases are apparently “favourable” to appellants (the statistics are not disclosed in the judgment), so it isn’t as bad as all that.
In a passage that in some respects will come as a surprise to seasoned coal face immigration lawyers who have had the temerity to suggest video link evidence or witness summonses Richards LJ holds:
“The Secretary of State is entitled, in my view, to rely on the specialist immigration judges within the tribunal system to ensure that an appellant is given effective access to the decision-making process and that the process is fair to the appellant, irrespective of whether the appeal is brought in country or out of country. 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. All this can be taken into account in the conduct of an appeal. If particular procedures are needed in order to enable an appellant to present his case properly or for his credibility to be properly assessed, there is sufficient flexibility within the system to ensure that those procedures are put in place. That applies most obviously to the provision of facilities for video conferencing or other forms of two-way electronic communication or, if truly necessary, the issue of a witness summons so as to put pressure on the Secretary of State to allow the appellant’s attendance to give oral evidence in person.”
Where a person is removed pending his or her appeal, Richards LJ held that
“…an out of country appellant does not face serious obstacles to the preparation or submission of witness statements or the obtaining of relevant documents for the purposes of an appeal. He can instruct a lawyer in the United Kingdom if he has the funds to do so. If he does not have the funds to instruct a lawyer but the case is so complex that an appeal cannot properly be presented without the assistance of a lawyer, he will be entitled to legal aid under the exceptional funding provisions considered in R (Gudanaviciene) v Director of Legal Aid Casework”
There is no need in most cases for expert evidence that is based on a personal meeting with the expert as, for example, risk of reoffending “can generally be assessed on the basis of the sentencing remarks and the reports that were before the sentencing judge”.
While Richards LJ refers in the judgment to expert reports on rehabilitation and reoffending, he does not refer to independent social worker type reports on a parent’s relationship and interaction with their children. Such reports would obviously be impossible to obtain after removal.
The availability of legal aid funding is utterly illusory. How a person is supposed to apply for exceptional funding from abroad without considerable pro bono assistance from a lawyer is a mystery that is not explored.
I was refused one injunction against a section 94B removal to a country the client had not visited since the age of six, which was over 20 years previously. The appeal rested on evidence about previous employment over meany years and contact with his children, for whom he had previously had to obtain a court order for contact against a hostile ex partner. The reason the injunction was refused was that the solicitors and I should be prepared to prepare and present the appeal pro bono, a suggestion that I really, genuinely never thought I would hear from a salaried judge. The client was removed and despite having a good case under the Immigration Rules against deportation, he was unable to remain in contact with his lawyers and he never pursued an appeal. A great result for the Home Office.
The fact is that it will be virtually impossible for a litigant in person to make arrangements for video link evidence, never mind bear the cost of such arrangements. It is, after all, virtually impossible to do this from the UK.
The case of Nare (evidence by electronic means) Zimbabwe  UKUT 443 (IAC) and the Upper Tribunal’s Guidance Note (No.2 of 2013): Video link hearings are cited by the Court of appeal in Kiarie as evidence that the tribunal is prepared to accept evidence by video link. These are not encouraging precedents. Video link or telephone evidence should be very simple — all that is really needed is a laptop and a good internet connection at both ends — but the immigration tribunal is extremely resistant to such suggestions. Skype or Google Hangouts software would both work fine as long as the lawyers and judge huddle round the laptop at the UK end of things, or everyone used a separate laptop of iPad/tablet on the desk in front of them.
However, I’m not sure that even a decent internet connection can be provided in the immigration tribunal and we are still not permitted to plug in laptops in most hearing centres. It is time for change, and to move on from the positively stone age approach with which we (although apparently not the Court of Appeal) are familiar.
Both cases were dismissed. The appeals will now proceed out of country, assuming that the claimants can in fact pursue such appeals. Personally, I doubt it.
The proof of access to a procedure is in the pudding.