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Serious and irreversible harm and deportation appeals

Today the new out of country deportation appeal provisions of the Immigration Act 2014 came into force, at least in part. The new regime enables the Secretary of State to require any appeal against deportation to be brought from abroad only, both in UK law and EU law cases. This post looks at the statutory power, the Home Office guidance and some of the possibilities for bringing judicial review applications against the exercise of such powers.

To create this new power, a new section 94B of the Nationality, Asylum and Immigration Act 2002 has been created. This provides as follows:

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), or
(b) section 3(6) of that Act (court recommending deportation following conviction).

(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.

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It can be seen that this section only creates the power to issue a certificate. The effect of the certificate is covered elsewhere: in the new amended version of section 92 NIAA 2002 when that is brought into force, and in the meantime by a modified version of section 92 brought into effect by a Commencement Order, dealt with separately in this blog post. Essentially, although a certificate can be issued on an extant appeal, i.e. even where an appeal has already been brought, the effect of the certificate is merely to prevent a person initating an appeal; it does not have the effect of terminating an existing appeal.

New guidance from the Home Office addresses the circumstances in which these new certificates will be issued. Separate guidance exists for non EEA and EEA cases.

Ordinary non EEA deportation cases

The guidance on non EEA cases suggests that the Home Office will be enthusiastic about use of the new power:

The Government’s policy is that the deportation process should be as efficient and effective as possible and therefore case owners should seek to certify a case using the section 94B power in all cases meeting these criteria where doing so would not result in serious irreversible harm.

However, the new power will apparently be tested on a limited group of cases where:

  • The individual is aged 18 or over at the time of the deportation decision, and
  • The individual does not have a parental relationship (see paragraph 6 of the Immigration Rules) with a dependent child or children. It will be possible to certify cases involving children where there is no evidence that the FNO [Foreign National Offender] has any parental relationship with the dependant child or children

Further guidance is given on cases that might be considered to involve children, including that where there is evidence of an individual who is being considered for certification playing an active role in a child’s life, then certification would not normally be appropriate in this initial test phase.

The Home Office accepts that Article 3 and refugee cases should not be certified under this new power:

It is not appropriate to certify protection claims made on the basis of the Refugee Convention and/or ECHR Article 2 and Article 3 because there will arguably be a real risk of serious irreversible harm.

EEA deportation cases

The Immigration (European Economic Area)(Amendment)(No.2) Regulations 2014 (SI 2014/1976) came into force today, 28 July 2014. These new Regulations amend the Immigration (European Economic Area) Regulations 2006 so that an appeal against a deportation decision under Regulation 19(3)(b) can still be lodged in the UK but no longer suspends removal proceedings, except where:

  • The Secretary of State has not certified that the person would not face a real risk of serious irreversible harm if removed to the country of return before the appeal is finally determined.
  • The person has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal.

Where an interim order to suspend removal proceedings is initiated, the guidance states that removal will not be suspended unless the order is made where:

  • the notice of a decision to make a deportation order is based on a previous judicial decision;
  • or the person has had previous access to judicial review;
  • or the removal decision is based on imperative grounds of public security.

In addition, a person removed from the UK under this new regime can apply to re-enter the UK in order to make submissions in person at their appeal hearing. This is because Article 31(4) of Directive 2004/38/EC states that:

Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.

The guidance purports to limit this provision to cases where the appeal was lodged in time, an appeal hearing date has been set and the person wants to make “submissions” in person. It is not clear whether a person with a legal representative would necessarily qualify for entry under this approach. Further, the guidance states that permission for entry must be sought in advance: simply turning up at the border will lead to refusal of admission. Further guidance will be published in August 2014, apparently.

The guidance states that the same test phase and criteria apply in EEA cases as in non EEA cases.

Serious and irreversible harm

The Home Office guidance is interesting for what it says about the Home Office view of how the serious and irreversible harm test should be interpreted. The guidance on the test applies in both non EEA and EEA cases.

The guidance acknowledges that the test is derived from the test for Rule 39 indications from the European Court of Human Rights. There is very little authority on this, though, as there only seems to be one judgment where Rule 39 gets a mention, Nunez v Norway (App no. 55597/09). The guidance makes no reference to the case of Ribeiro v France (App no. 22689/07), which is the case from which Adam Wagner of the UK Human Rights Blog thought the test might well be derived. That case is the best we have, and I’d recommend Adam’s analysis.

The guidance observes, surely correctly, that the test relates to the period between deportation and the conclusion of any appeal, after which the person will return to the UK if successful, and that the test requires that the harm be serious AND irreversible. Next, the guidance goes on to suggest situations that in the opinion of the Home Office would not meet the test:

  • A person will be separated from their child/partner for several months while the individual appeals against a human rights decision
  • A family court case is in progress
  • A child/partner is undergoing treatment for a temporary or chronic medical condition that is under control and can be satisfactorily managed through medication or other treatment and does not require the person liable to deportation to act as a full time carer
  • The FNO has a medical issue which does not lead to an Article 3 breach
  • A person has strong private life ties to a community that will be disrupted by deportation (e.g. they have a job, a mortgage, a prominent role in a community organisation etc.)

It might be thought that the family court case suggestion is clearly wrong. A person usually needs to be physically present in the UK in contested family court proceedings as various assessments are often needed which will be impossible if the person is not present in the UK.

The guidance then goes on to give examples of situations that in the view of the Home Office would meet the test:

  • 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 who can provide that care

The guidance concludes:

The onus is on the Secretary of State to demonstrate that there is not a real risk of serious irreversible harm. However, if a person claims that a non-suspensive appeal would result in serious irreversible harm, the onus is on that person to substantiate the claim with documentary evidence, preferably from official sources, for example a signed letter on letter-headed paper from the GP responsible for treatment, a family court order, a marriage or civil partnership certificate, documentary evidence from official sources demonstrating long-term co-habitation, etc. Case owners should expect to see original documents rather than copies.

Judicial review of section 94B certificates

As with “manifestly unfounded”, “clearly unfounded”, various “safe third country” and other types of appeal-limiting certificates, a judicial review of the decision to impose a certificate is possible. This will usually have the effect of suspending removal.

The substance of any such judicial review will turn on (a) whether the statutory test in section 94B is met and (b) whether the Home Office policy has been applied. Ultimately, challenges will be about whether the removal of the claimant during the currency of his or her appeal will cause serious, irreversible harm.

This may not be restricted only to a question of whether the person’s Article 8 private and family life is caused serious, irreversible harm. The Home Office accepts that Article 3 cases will involve that level of harm (see above). It will also surely be relevant whether the person’s common law and/or Article 6 right to a fair trial of the issue is caused serious, irreversible harm.

In some cases it may be feasible for a person to bring their case from abroad. In others, it may not. The example in the Home Office guidance of a person involved in family law proceedings might well, depending on the facts, be considered to be an excellent example of where serious, irreversible harm could be caused. It is also an example of a situation in which the European Court of Human Rights held that a person does have a right to remain in the country concerned in order to pursue their case: Ciliz v Netherlands (App no. 29192/95), followed and applied in UK domestic cases including MS (Ivory Coast) v SSHD [2007] EWCA Civ 133.

In any event, the extremely lengthy delays in judicial review applications in the Upper Tribunal — only likely to increase when appeal rights are further curtailed in the autumn — mean that section 94B certificates will often not prove to be the quick fix solution that Ministers expect.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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