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“Where there is no risk of serious and irreversible harm, we should deport foreign criminals first and hear their appeals later” (Theresa May 2013)

16th June 2017

The State has long had power to certify appeals which are viewed as “manifestly ill-founded” (see S. 94 (1) and (2) of the NIAA 2002) so that the appellant cannot appeal until s/he leaves the country.

Since December 2016, the SSHD has had power to certify any human rights appeal provided only

94B (2)… 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 (public authority not to act contrary to Human Rights Convention)

94(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 was this power that has now been considered by the Supreme Court in R (on the application of Kiarie) v Secretary of State for the Home Department  R (on the application of Byndloss v Secretary of State for the Home Department (14th June 2017). In summary, it seems to have said to the then SSHD “you can’t”.

Both Appellants were foreign criminal subject to automatic deportation. Both argued that deportation would infringe their Article 8 rights, a claim which the SSHD rejected. The Appellants wished to appeal to the Tribunal but the SSHD had certified the appeals under S.94B. She had not however certified under S. 92. The appeals were therefore arguable a point which weighed heavily with Lord Wilson

Giving the leading judgment Lord Wilson agreed with the Court of Appeal that serious irreversible harm to the Applicant was not the only criterion. The SSH was required by S.6 to act in accordance with the Appellants’ article 8 rights which included an obligation to provide an effective remedy. Differing from the CA, Lord Wilson quashed the certificates because the Home Secretary of State could not show an adequate evidential base for the view that deportation would not put the State in breach of its obligation to provide an effective judicial remedy.

 Particular stress was laid upon the importance to an Appellant resisting deportation of the ability to give live evidence and of the cost (to be paid by the Appellant) and unreliability of currently available arrangements for giving evidence by video link. It was accepted that the cost of Mr Kiarie of renting the necessary facilities in Nairobi would be £1680. Nor was the SSHD’s case helped by survey evidence that 66% of FTT judges regard the Tribunal video facilities as poor.

This is a momentous decision. Most generally Lord Wilson affirms that in JR’s which involve questions of Human Rights, the Court may hear evidence to determine questions of fact relevant to the decision before it. It is not restricted to reviewing the SSHD’s view of the facts for Wednesday unreasonableness. Its powers in this respect are similar to those of the Tribunal.

As to certification, the decision has probably emasculated S.94B. Formally, this is a decision only about the certification of the claims of these Appellants. There is no declaration of incompatibility. On the other hand, the problems facing the SSHD in this case– poor and costly arrangements for the giving of evidence by video/skype seem unlikely to be resolved at any time in the near future. Even if they were, other problems noted by Lord Wilson -for example the difficulty of an overseas appellant giving instructions to his representative during a hearing - are likely to endure.

There is no reason to think the Court’s reasoning applies only to deportation decisions and it probabley extends to EU cases as well.

It may well be that the response of SSHD will be to make more use of the certification power under S. 94 (2) and (3)

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