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Irreversible harm

Irreversible harm

From 28 July 2014, the commencement of provisions of the Immigration Act 2014 gives the Secretary of State new powers of certification that will oust “in-country” rights of appeal for foreign criminals. She may do so in any case where she thinks removal would be consistent with the Human Rights Act 1998 and in particular where there is no real risk of serious irreversible harm faced by the deportee (section 94B of the amended Nationality Immigration and Asylum Act 2002).

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Immigration lawyers have grown accustomed to the present system of statutory provisions governing the forum of appeals and the powers under which some kinds of case may be certified upon refusal so as to prevent an appeal to the Tribunal. Section 92 has always controlled the location of the appeal, giving vital protection to the migrant appellant for whom expulsion may threaten the very rights that the appeal aims to protect, operating so as to confer “in-country” appeal rights automatically on some kinds of immigration decision (eg appeals against refusal to vary leave and to make deportation decisions) and with respect to some kinds of grounds of appeal (those raising asylum or human rights claims or EEA rights). Section 94 has long housed the certification powers, including those that permit a decision maker to certify a human rights case as “clearly unfounded”, dooming the migrant in question to an “out-of-country” appeal, subject to challenge by way of judicial review.

Both provisions now receive very significant alteration in the deportation context under the Immigration Act 2014. In future, where the migrant has been sentenced to imprisonment for more than a year or is otherwise a persistent offender or considered to pose a threat of serious harm, they may face a new kind of certificate under section 94B that means their appeal rights can only be exercised from abroad, the protections against “in-country” expulsion within section 92 being accordingly modified.

These issues have been discussed in a recent blog post by Colin. Perhaps the only ECtHR case where a Rule 39 has been granted in a family life case is Nunez v Norway (Application no. 55597/09; 28 June 2011) where the Court stated that children should not always suffer the negative consequences of fraudulent conduct of a mother and that the authorities should always examine the effects an expulsion has on the possibilities of children to enjoy private and/or family life as protected by Article 8 ECHR. The Court considered that ‘exceptional circumstances’ may make it necessary to accord primacy to the interests of dependent children – even if that would imply that a parent must be allowed residence as well (and the mother had a very poor immigration history having been convicted of serious offences of dishonesty regarding her past obtaining of visas).

Practitioners will wish to ensure that they fully investigate the full web of related Article 8 rights that may surround a deportee, given that the focus of enquiry under section 94B(3) is whether the person liable to deportation “would not … face a real risk of serious irreversible harm” if removed: the existence of third party rights may well suggest a case is unsuitable for certification, given their relevance to enquiries under the Human Rights Act 1998, see Beoku-Betts [2008] UKHL 39.

There are rather complicated transitional provisions. Colin has discussed these here. It might help just to go through their introduction once again. The new certification regime will enter force in two stages.

(a)           Firstly, from 28 July 2014, article 4 of Commencement Order No 1 removes the suspensive appeal protection within section 92: henceforth, in deportation cases, section 92 is to be read as if there was no reference therein to the making of a deportation order or to the making of a human rights claim, with the consequence that the traditional barriers to removal pre-appeal are lifted for deportees;

(b)           Secondly, from the (as yet unspecified) time that section 17(2) of the 2014 Act comes into force, there will be a wholly new section 92 introduced, placing section 94B amongst the existing certification powers relating to “clearly unfounded” claims already available to the Home Office.

It is not presently possible to make a certificate (under section 94B or otherwise) that would stifle a pending appeal (such a practice is, outside of this specific context, precluded by the decision in AM Somalia) in a case where the appeal is already afoot as of 28 July 2014: because the appeal has arisen with the enjoyment of the full protection conferred by section 94 as in force before the possibility of “reading out” its “in-country” protections arose.

I discuss these issues and other aspects of the new certification regime in the linked podcast, taken from a recent seminar here at Garden Court Chambers.

Purchase a copy of Colin’s Immigration Act 2014 ebook:

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Mark Symes
Mark is a barrister at Garden Court Chambers with twenty years of casework experience, he is co-author of the "encyclopaedic... pre-eminent" Asylum Law and Practice and is enthusiastic about all areas of all immigration law, from human rights to commercial cases. Mark is rated as a "real expert" and as "dynamic and brilliant" by Chambers UK 2014.

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