Report: “Serious irreversible harm” test case heard in Court of Appeal
This week, Lord Justices Elias, Richards and McCombe sat in the Court of Appeal and heard the first test cases against Section 94B of the Nationality, Immigration and Asylum Act 2002. Section 94B, introduced by the Immigration Act 2014 and which came into force on 28th July 2014, provides the Home Office the power to certify human rights claims made by people liable to deportation, so they are not entitled to an appeal within the UK. Instead they are expected to bring their appeal from the country in which the Home Office propose deportation. This logic has been catchily titled “deport first, appeal later” and the Conservatives pledged in their manifesto to roll it out for all immigration appeals. Indeed, the Immigration Bill 2015, published last week on 17th September, does just that.
The Unity Centre in Glasgow has been open almost a decade, providing unconditional support and solidarity to migrants. We have an office open Monday-Friday and an emergency phone line operational 365 days a year, 24 hours. We are in increasing contact with people whose human rights claims have been certified under S.94B and feel strongly that out-of-country appeals, in general, are unworkable and unjust.
For now, only foreign criminal cases can be certified under Section 94B. Cynically, the Home Office’s tactic seems to be to pilot questionable legislation on the foreign criminal population before phasing it in for others. But while the two-day hearing saw challenges to Section 94B certification in foreign criminal cases, and the Home Office advanced the view that all was proportionate and sound considering the public interest in removing foreign national offenders – the Home Office had in fact been solidifying measures to ensure that all immigrants will be subject to this out-of-country appeal regime. Utilising the rhetoric of the right-wing press, the Home Office appear to be justifying further application of this disputed legislation, by designating anyone with an immigration appeal “illegal”. The most evocative of adjectives, misapplied to magic the scapegoat of the day.
If a person’s case is certified under S.94B they are denied the opportunity to raise their human rights arguments within the UK. But what if the person cannot return to their country, for exactly the reasons they would raise at appeal? Home Office guidance does concede that they won’t remove you if you can prove that “serious irreversible harm” will result. The burden of proof is of course on the appellant to prove that removal would cause serious irreversible harm – no mean feat for appellants who, in Unity’s experience are often without legal representation and always detained.
During the course of this week’s hearing, Drabble of Landmark Chambers for Kiarie and Gill of No5 Chambers for Byndloss advanced the view that the Home Office guidance on Section 94B and subsequent decisions to certify human rights claims in accordance with it, would prevent appellants from effectively and fairly pursuing an appeal. They made commonsense submissions, that there are simply no adequate procedures in place to ensure a fair trial in an out-of-country appeal scenario. Drabble warned of the implications for justice, if people were unrepresented. He noted that throughout the hearing, the court had been postulating “a world in which there was a lawyer” and in any case, an appeal in which one side was present and cross-examining, while the appellant themselves was not present, was wholly inadequate.
The lucky ones with legal representation and the capacity to put forth their case, were still open to unlawful scrutiny, as both Drabble and Gill contested the ‘serious irreversible harm’ test was a “red herring”, distracting from the responsibility of the Home Office to ascertain whether there was in fact a breach of the claimant’s human rights. The guidance indisputably focuses on ‘serious irreversible harm’ – a statutory test that Drabble proposed means there will never be a breach and prevents the development of case law. The threshold to persuade the Home Office of “serious irreversible harm” is certainly impossibly high. The Home Office guidance reads thus:
3.7 Although the serious irreversible harm test sets a high threshold, there may be cases where that test is met. Such cases are likely to be rare, but case owners must consider every case on its individual merits to assess the likely effect of a non-suspensive right of appeal. The following are examples of when the test might be met:
· the person has a genuine and subsisting parental relationship with a child who is seriously ill, requires full-time care, and there is no one else who can provide that care;
· the person has a genuine and subsisting long-term relationship with a partner who is seriously ill and requires full-time care because they are unable to care for themselves, and there is no one else, including medical professionals, who can provide that care.
There was much talk by the Home Office’s silk Lord Keen of ‘serious irreversible harm’, but no real regard for that damn spanner in the works – Article 6, the right to a fair trial. Keen dismissed the claimants’ misgivings placing ultimate faith in the Tribunal, who he said must be assumed to proceed justly and fairly. Such faith it seems is misplaced, as the Tribunal so far seem unwilling to facilitate best evidence for a fair trial. Sandra Akinbolu of Lamb Building Chambers submitted written evidence, also notifying the Refugee Legal Group:
“Had a CMRH for a client removed following an unsuccessful challenge to the s.94B certification. He was asking for a video link enabled court so he could participate in his appeal, – a private life claim. Tribunal’s stance is that they have the facility for a video link to be provided, but at the cost of the client, who will need to pay for the use of the room in the British High Commission, and security staff to man it, and provide his own “tech support” to ensure that the link connects with the Tribunal’s facility. Neither the Tribunal nor the SSHD is willing or able to bear the costs.” [reproduced with permission]
There was much speculation as to the necessity of such technological advancements, to ensure fair out-of-country hearings. Drabble commented that there would need to be a “complete transformation of culture” to enable routine use of video links in courtrooms. Lord Richards countered that if they were necessary to ensure fair appeals their use would become routine. But Drabble raised the concern that there might be no opportunity for the Tribunal to detect unfairness and take consequent measures to mitigate against it. This point stands even if the Tribunal is to be regarded as a benevolent facilitator of justice, which Ms Akinbolu’s experience above suggests is not the case.
So at what stage would complications or problems necessary to provoke change transpire? How exactly would they be overcome? How quickly could effective remedies be put in place? What if the country to which the appellant was returned did not have the means to enact such remedies? What if it is realised that the appellant’s presence is required at appeal? By which power could the appellant’s return be assured? And even if it were established that the practicalities were possible, might subjecting the appellant to such whims constitute an unjustifiable interference? Would the appellant appreciate the need for expert evidence and legal representation before returning to a potentially unfamiliar territory? Could evidence be gathered and cases prepared with no personal contact between family, support networks, legal representatives….? The fact remains that while these questions remain unanswered, appeals have been certified under S.94B since July last year. To subject appellants to such procedural uncertainty is simply unacceptable and a clear breach of both the Article 6 right to a fair trial and Article 8 procedural rights. Keen’s deference to the Tribunal was attacked – the case was made by Drabble and Gill that matters should be considered by the Secretary of State at the time of certifying cases under S.94B, instead of adopting the view that the Tribunal would sort things later and plug any gaps.
Gill agreed that there was insufficient substantive and procedural safeguards to protect Article 8 procedural rights and took particular issue with the fact that children’s Article 8 rights were not given due consideration in the certification process. Though guidance may refer to Section 55 duties and children’s best interests, Gill argued that access to legal advice or representation/mental health issues/detention or imprisonment/language skills (or all of the above) might infringe upon an appellant’s capacity to put the relevant facts before the Home Office. His submission was that children should not be burdened by the failings of a parent. The burden being entirely on the appellant himself, Gill advanced the view that, if the Home Office knew children were involved, they should make active enquiries as to the children’s best interests. Not doing so, Gill argued, meant they could not be said to fulfil their Section 55 duties. He argued eloquently for a progressive approach that near nobody else in the room seemed happy to entertain.
Indeed, the Home Office tackle the question of family separation head-on in their handy Immigration Bill 2015/2016 Appeals Factsheet:
“Are you planning to separate families?
The effect on the family will be considered, but this may be the case in some cases…”
A cavalier approach that perhaps wouldn’t be pursued with such indifference, were separation from the Home Office caseworkers’ own children in question.
What the Home Office have implemented is an irresponsible and unjustifiably risky Kafkaesque system, shamelessly attempting to get people out of the country before Home Office decisions can be challenged or appeals won. The focus on ‘serious irreversible harm’ was effectively problematised by Drabble using the case of Chikwamba v Secretary of State for the Home Department  UKHL 40, in which it was ruled that expecting the appellant to return to Zimbabwe to make an Entry Clearance application for readmittance was a breach of her Article 8 rights, yet arguably her fate would not have constituted ‘serious irreversible harm’.
The awarding of an out-of-country right of appeal seems then a thinly veiled attempt to ensure justice cannot be done. It seems a cowardly attempt by the Home Office to prevent people arguing their case to appease a general public who are relentlessly fuelled by misinformation. An example of such misinformation is the Home Office’s own press release for the Immigration Bill 2015. How can James Brokenshire claim that the Immigration Bill 2015 aims to introduce “new measures cracking down on the exploitation of low-skilled workers, increasing the punishments for employing illegal migrants, and strengthening sanctions for working illegally”, while detainees in immigration detention centres are paid to work for £1 per hour within the detention centres’ own walls? And how can you increase powers “to make it easier to remove people who have no right to be in the UK”, when you are yet to determine whether they have a right to be in the UK?
It is essential that judges have the opportunity to apply anxious scrutiny at appeal and ensure a correct decision has been made. Certifying an asylum or immigration matter for out-of-country appeal presents very grave obstacles to accessing such justice – financial as well as logistical barriers are impossible to justify. The particular disregard for those whose cases were certified under S.94B was further highlighted with reference to Section 94 of the Nationality, Immigration and Asylum Act 2002. It was pointed out that, by definition, those whose cases were certified under S.94B had arguable cases. They had not being certified under the same Act’s S.94 provision (clearly unfounded), instead being certified under S.94B (just get out, we’ll think about dealing with you later).
Drabble put it to the court that procedural protection could not be diminished because there was a public interest in deportation. Citing Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Or  EWCA Civ 1622, he argued that a fair trial should always be of paramount importance, especially in such cases. Indeed, his position was that the need for procedural protection was enhanced rather than reduced in deportation appeals as being deported is the most extreme of all eventualities. Strasbourg had specified, he said, that such matters were not dealt with in this way – struggling in the face of adversity, with no procedural protection nor real regard for appellants’ Article 6 or Article 8 procedural rights.
The commencement orders that introduced Section 94B triggered an outburst from Lord McCombe on day one, who called them “intolerably complicated” before going the whole hog and stating that current legislation made it “hopeless to conduct appeals fairly”, that legislation was in “chaos” and “needed sensible review”. “That the government allows this to continue is an outrage” he said. In light of the submissions by Drabble and Gill, one can only hope that he and his fellow judges hand down a sensible determination. The answer is not to to pave the way for out-of-country appeals to be phased in further.
Unity would like to hear from legal representatives running out-of-country appeals, or who have attempted to run out-of-country appeals. We would also be happy to hear from anyone with concerns as well as testimonies that could feed into our ongoing research. Matters would be kept confidential and individuals consulted if input desired to be published anonymously in future. We want to voice strong opposition on all plains possible to out-of-country appeals; their unworkability and unjustness must be publicised, before they are entirely entrenched.