The proceedings in the Court  of Appeal in Kiarie, R (On the Application Of) v The Secretary of State for the Home Department [2015] EWCA Civ 1020  related to  two Appellants  liable to deportation  by reason of  criminal  offending.   The appeals  concerned  the interpretation and application of section 94B of the Nationality, Immigration and Asylum Act 2002 as inserted by the Immigration Act 2014.   Where a person liable to deportation has had a human rights claim refused by the Secretary of State but has a right of appeal against that decision, section 94B empowers the Secretary of State to certify the claim if she considers that removal of the person pending the outcome of such an appeal would not be unlawful under section 6 of the Human Rights Act 1998. The effect of certification is that any appeal must be brought from outside the United Kingdom.

Section 94B of the 2002 Act provides::

“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.”

The Court of Appeal  observed that there was  no dispute that a decision to certify under section 94B is amenable to judicial review, nor  was there any real dispute about the correct interpretation of section 94B, though that interpretation was  not accurately reflected in the Secretary of State’s accompanying  Guidance to caseworkers. The Court stated that the  Guidance contained  an incomplete and misleading statement of the statutory test. On behalf of the Secretary of State,  it was  accepted that the Guidance needed  “clarification” and  there was a  stated intention to amend it following judgment in the  appeals. The  Court of Appeal ‘s view was  that the problem went  beyond a need for clarification as  the  Guidance was liable to mislead decision-makers into applying the wrong test.

The Court further made it clear that a  judicial review challenge  is limited to the section 94B certification and does not extend to the deportation decision itself or to the related refusal of the person’s human rights claim. Section 94B will arise for consideration only in cases where there is a right of appeal against the refusal of the human rights claim. The section is concerned with the distinct question whether the person can lawfully be removed pending such an appeal. Further the Court of Appeal noted  that  there was  no right of appeal against the section 94B certification itself.

The Court clarified that as to the applicable principles on judicial review of a decision under section 94B, the terms of the statute require the Secretary of State to form her own view on whether removal pending an appeal would breach Convention rights. For that purpose, in an article 8 case such as the present,  the Secretary of State had  to make relevant findings of fact and conduct a proportionality balancing exercise in relation to the facts so found. The  findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context. The Court is obliged to form its own view, whilst giving appropriate weight to any balancing exercise carried out by the primary decision-maker.

The Court of Appeal considered that 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 …”  Therefore Secretary of State cannot lawfully certify unless she considers that removal pending the outcome of an appeal would not be in breach of any of the person’s Convention rights as set out in schedule 1 to the Human Rights Act.

The Court of Appeal also clarified that 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, displace the statutory condition in subsection (2), nor does it constitute a surrogate for that condition.  The Court made it clear that even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification. She cannot certify in any case unless she considers, in accordance with subsection (2), that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act.  It was noted by the Court that that  the risk of serious irreversible harm is not the overarching test was rightly accepted by Secretary of State.  In the Court’s judgement, it  followed  that the Secretary of State’s Guidance on section 94B is  inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm in subsection (3) and failing to focus on the central provision in subsection (2).

The Court of Appeal also stated  that it was  obvious from the wording of section 94B, that where the statutory condition in subsection (2) and the criterion in subsection (3) are met, the Secretary of State has a discretion whether to certify or not

At paragraph 37 of the judgment, the Court of Appeal   made it clear  that there may in practice be relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm, but it is a possibility which must be focused on as a necessary part of the decision-making process. Consideration must be given, in particular, to whether removal pending determination of an appeal would interfere with the person’s rights under Article 8 and, if so, whether removal for that interim period would meet the requirements of proportionality. Unless the decision-maker considers that there would be no such interference or that any such interference would be proportionate, the claim cannot lawfully be certified under section 94B.

The Court of Appeal  further observed that it may be thought that less weight attaches to the public interest in removal in the context of section 94B, when the only question is whether the person should be allowed to remain in the United Kingdom for an interim period pending determination of any appeal, than when considering the underlying issue of deportation for the longer term.  The Court however emphasised that  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. The Court stated that  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.

PROCEDURAL AND SUBSTANTIVE ASPECTS

The Court of Appeal  dealt with the arguments and issues  having  regard to two aspects:

• Whether, in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certification was in breach of the procedural guarantees inherent in Article 8 of the ECHR.
• Whether in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certification was in breach of the appellant’s substantive rights under Article 8 of the ECHR

Procedural Aspects:

As to the procedural aspects, it was submitted on behalf of the appellants  that an out of country appeal would not provide them with fair and effective involvement in the appellate process and would not meet the procedural guarantees inherent in article 8; or, at least, that the Secretary of State did not take the necessary steps to satisfy herself that the procedural guarantees of Article 8 would be met by an out of country appeal before certifying under section 94B.

The Court however indicated  acceptance of  the general thrust of the case advanced on behalf of the Secretary of State. The Court rejected the submission that an out of country appeal against a deportation decision would deprive the appellants of effective participation in the decision-making process and of a fair procedure. The Court decided that  the Secretary of State was  entitled to proceed on the basis that an out of country appeal will meet the procedural requirements of Article 8 in the generality of criminal deportation cases.  If particular reasons are advanced as to why an out of country appeal would fail to meet those requirements, they must be considered and assessed, however  on the evidence before the court, in relation to each of the present appellants that certification under section 94B, requiring an appeal against the relevant deportation decision to be brought from outside the United Kingdom, is not a breach of the appellant’s procedural rights under article 8.

The reasons in further detail given by the Court were;

“64.First, I accept that an out of country appeal will be less advantageous to the appellant than an in country appeal. But article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. It requires access to a procedure that meets the essential requirements of effectiveness and fairness. Entry clearance cases may often be more straightforward but they too can raise human rights issues, and experience in them shows that an out of country appeal is capable of meeting those requirements. Moreover, the available statistics regarding success rates in such cases paint a far more favourable picture for appellants than was suggested by the observations of Sedley LJ in R (BA (Nigeria)) v Secretary of State for the Home Department (see paragraph 54 above).

65.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.

66.There are difficulties for any appellant, particularly an unrepresented defendant, in preparing evidence for an appeal and presenting it to the tribunal, but I do not accept that those difficulties will be so much greater where the appeal is brought out of country as to amount to a denial of effective participation in the decision-making process or to render the procedure unfair. In these days of electronic communications, 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 (paragraphs 47-51 above). It was accepted by Mr Drabble that such entitlement would not be affected by the fact that the appellant has to bring the appeal from outside the United Kingdom.

67.It is said in evidence on behalf of Mr Kiarie that it would be necessary for him to obtain a report of a forensic psychiatrist in relation to risk of reoffending and that psychiatric assessments made with the use of video conferencing technology should be viewed with caution. I do not accept that it is necessary in the generality of cases to obtain an expert psychiatric report for the purpose: the risk of reoffending can generally be assessed on the basis of the sentencing remarks and the reports that were before the sentencing judge. But if a further report is required, the evidence does not in my view establish either that it has to be obtained in the United Kingdom or that, if a UK expert has to be instructed, an appropriate assessment cannot be made on the basis of video conferencing or other form of electronic communication, in addition to the relevant written material”

Substantive Aspects:

As to the substantive aspect, both appellants pointed to the fact that the Secretary of State, whilst refusing their human rights claims, had accepted that the claims are arguable and should carry a right of appeal. The Court noted that although one is concerned here with the position only during the interim period before an appeal can be determined, both appellants contended that their removal from the United Kingdom for that period would be an interference with their substantive rights under Article 8.

The Court of Appeal observed  that as to Mr Kiarie’s substantive rights under Article 8, he did not have any children; he was not in any relationship; his claim was based essentially on private life rather than family life; despite his lengthy stay in the UK, his offending was said to be indicative of  lack of integration; it was not accepted that there would be very significant obstacles to his reintegration into Kenya, where English was a national or official language and where there was some evidence that he might have remaining relatives. He had no apparent health issues. His education and experiences in the  UK might well assist him in establishing a career for himself in Kenya.  The Court of  Appeal stated that  these matters were taken into account in reaching the conclusion that the public interest in deporting him outweighed his right to private and family life. It was noted that aspects of that analysis were then carried across into the reasoning set out in support of the certification under section 94B.

The Court stated that if the certification decision had focused on the wider question of breach of Article 8, rather on the question of serious irreversible harm, its conclusion would have been the same. Removal to Kenya pending determination of an appeal involved only a short-term interference with Mr Kaire’s private life in the United Kingdom. The difficulties of integration in Kenya for that limited period did not appear to the Court to be serious obstacles to removal and did  not therefore have great weight in the balance. The Court stated that by contrast, the public interest in removal of a person with Mr Kiarie’s offending record carried  substantial weight even in relation to removal pending an appeal. Taking everything into account, the balance appeared to the Court  to come down firmly in favour of the proportionality of removal for that interim period.

As regard the second Appellant, Mr Byndloss, it was noted that he claimed to have family life in the UK with eight children by different women. In dealing with his claim,  the Court noted that the  Secretary  of State had  examined  in considerable detail, by reference to the relevant provisions of the Immigration Rules, the evidence relating to each group of children and had concluded among other matters that whilst Mr Byndloss  was the biological father of at least seven children,  he had  no relationship with any of them whereby  he provided a consistent or parental presence in their daily lives. There is nothing to demonstrate that  he  made  any meaningful contribution in terms of practical, financial or emotional support and nothing to show that  he played  any part in taking decisions about the children’s daily lives. The children’s day to day needs  would continue to be provided by their respective mothers. The decision showed that the section 55 duty had  been taken into account and that the best interests of the children had been a primary consideration in making the decision.

The Court observed  that the decision went on to consider the question of family life with a partner, in relation to which it was accepted that Mr Byndloss was  still married but it was  not accepted that the relationship was  genuine and subsisting. It also considered  the question of private life, before reaching the conclusion that the public interest in deportation outweighed  his right to private and family life.  In the Court’s view, the various points considered in the context of the substantive claim under Article 8 could  be seen to feed in to the reasoning in support of the decision to certify under section 94B. The Court’s judgement was that on the face of it, the conclusion reached in the decision letter, that Mr Byndloss’s removal pending appeal would not be in breach of his Article 8 rights or those of his wife, his former partners or his children,  was well reasoned and compelling.  The Court further stated  that it runs contrary to authority in seeking to elevate children’s best interests beyond a primary consideration in decision-making and to turn them into the paramount or determinative factor.

CONSIDERATIONS AND CONCLUSION

Success in Section 94B challenges have been set at a very high threshold  and even where  there is a possibility that   the  Secretary of State ‘s decision might  contain  errors of law, so long as the errors cannot be considered material,  the challenge is unlikely to succeed having regard to the   considerations in the appeals at hand.

The Court did find that the decision in Mr Kiarie’s human rights claim under section 94B, was flawed by reason of two legal errors: Firstly, he was not informed in advance that consideration was being given to the certification of his claim under section 94B and he was not given a fair opportunity to make representations on the subject. The course adopted was procedurally unfair; Secondly, the decision to certify, in line with the Guidance, focused erroneously on the question of serious irreversible harm and failed to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Kiarie’s procedural or substantive rights under Article 8. Thus, the decision was based on a legal misdirection. The Court of Appeal however  concluded that neither of those errors were  material. It was noted that procedural failings have to be viewed with caution and  that they will often invalidate a decision,   however the Court had no doubt that the decision would have been the same if the correct approach to section 94B had been adopted and account had been taken of the relevant material put forward on the appellant’s behalf in these proceedings. The Secretary of State was therefore found to have been entitled to conclude that it was compatible with the procedural guarantees provided by Article 8 to require Mr Kiarie to bring an appeal against the deportation decision from outside the United Kingdom.

As regards Mr Byndloss’s original decision 14 to certify  his human rights claim under section 94B, in the Court ‘s  judgment, that decision too  was flawed by reason of the same two legal errors as affected the original decision in respect of Mr Kiaire, namely (i) procedural unfairness in failing to give an opportunity to make representations on the subject of certification, and (ii) an erroneous focus on the question of serious irreversible harm and a failure to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Byndloss’s procedural or substantive rights under Article 8.  The Court noted however that in Mr Byndloss’s case,  there was  also a  supplementary decision letter by which time Mr Byndloss  had had ample opportunity to put forward such further material as he wished to rely on to resist certification under section 94B.  The supplementary decision letter  took due account of the further material and provided detailed reasons for deciding to maintain the certification. The focus of attention  was   now  to be on the supplementary letter. The section in the supplementary decision letter on certification was stated to apply  the correct legal approach towards section 94B, focusing on the question whether removal pending an appeal would be unlawful under section 6 of the Human Rights Act and, in particular, whether it would be in breach of Article 8. On that point, therefore, the error in the original decision letter was  corrected.   The Court  concluded   in relation to Mr Byndloss, that although there were errors in the original decision, they  were  not material because the original decision was superseded by a supplementary decision that did  not suffer from those errors and that set out a lawful basis for the maintenance of the certification under section 94B.  The Court of  Appeal therefore adopted  the same approach in the case as in relation to Mr Kiarie, by granting permission to apply for judicial review but reserving the substantive claim to the Court and dismissing it.

It is however to be hoped that the challenge in these appeals can proceed to the Supreme  Court with a view  to  overturning the Court  of Appeal  decision because as matters currently  are, there is nothing to stand  in the way of the Secretary of State seeking to extend the  “deport first, appeal later” policy to  non- deportation appeals.