Some claimants may prove irremovable from the UK for various reasons. The question then becomes, whether in light of the recent extension of the Section 94B certification power to non- deportation cases, it is possible to utilise Home Office policy itself to argue that the certification procedure is not appropriate in a given case.
What are the relevant amended provisions?
Amendments to section 94B of the Nationality, Immigration and Asylum Act 2002 came into force on 1 December 2016. The amended section reads:
“94B Appeal from within the UK: certification of human rights claims
(1) This section applies where a human rights claim has been made by a person (“P”).
(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, refusing P entry to, removing P or requiring P to leave the United Kingdom, 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 the 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 refused entry to, removed from or required to leave the United Kingdom”
What is the effect of Section 94B Certification?
The effect of section 94B certification is that any appeal can only be lodged and heard, or continued if the claim is certified after the appeal is lodged, while the claimant is outside the UK. This means the right of appeal against the decision to refuse the human rights claim is non-suspensive, meaning it is not a barrier to removal.
Section 94B can only be used where the conditions set out in section 94B itself are met, namely that requiring the claimant to appeal from outside the UK would not be unlawful under section 6 of the Human Rights Act 1998. However, it is a discretionary power so consideration must also be given to whether there are other compelling reasons to exercise discretion and not certify the claim.
What are the changes from 1 December 2016?
Between 28 July 2014 and 1 December 2016 section 94B applied only in relation to human rights claims made by those liable to deportation under section 3(5)(a) and 3(6) of the Immigration Act 1971.
Section 63 of the Immigration Act 2016 amended the Nationality, Immigration and Asylum Act 2002 to extend the scope of section 94B to all human rights claims where certification would not cause serious irreversible harm or otherwise breach human rights.
Section 94B continues to be potentially applicable to all deport cases where a human rights claim has been refused.
The Home Office will consider whether section 94B certification is appropriate in all cases where a human rights claim has been made and is refused, unless it is:
(1) (for non-deport cases only), outside the Phased implementation for non-deport cases.
Implementation of the extended power is being phased. The power to certify non-deport cases should be applied on or after 1 December 2016 where the case under consideration meets both of the criteria below:
the claimant did not have existing leave at the point that they made their human rights claim (for example, overstayers or illegal entrants)
the claimant does not rely on their relationship with a British national family member
For this purpose, the term ‘family member’ means a partner, parent, or child, where there is evidence of the relationship.
2) a case listed as not suitable for certification:
Criminal cases with indeterminate sentence
Potential Victim of Human Trafficking
What does Home Office policy guidance say about those not removable?:
Current Home Office Policy Guidance Certification under section 94B of the Nationality, Immigration and Asylum Act 2002, Version 7, 1 December 2016, states at page 26 :
Individuals who have no right to be in the UK are expected to leave. Therefore it is appropriate to certify a human rights claim (where all other conditions for doing so are met) even where a claimant is not currently having their removal or deportation from the UK enforced.
Where a claimant could not depart voluntarily and is not currently removable, you should consider whether to exercise discretion not to certify under section 94B. It may be counterproductive to certify if the claimant would be unable to leave the UK to exercise a right of appeal.
Section 94B certification is appropriate where a claimant has made an immigration application or claim and either:
has a passport or travel document (including a Home Office Travel Document)
is able to obtain a passport or travel document (including a Home Office Travel Document)
as the assumption is that the claimant can and should leave the UK voluntarily.
Where a claimant meets all of the following criteria:
they do not have a passport or travel document (including a Home Office Travel Document)
show credible evidence that they are unable to leave the UK within a reasonable timeframe, for example there is no realistic prospect of an acceptable travel document or other return information required for biometric returns being available
the barrier to leaving the UK is not their own refusal to co-operate with the removal process
then certification under section 94B is unlikely to be appropriate”.
The Home Office should only consider a case for certification if the claimant has been informed that the power might apply and given the opportunity to provide reasons why their claim should not be certified. Therefore where a claimant is or seems irremovable, reliance upon the above sections of home office policy guidance might be relevant when making representations in response.
But there are other powers of certification/ denial of a right of appeal:
Some cases may be suitable for dual certification (certification of different elements of the same claim under different certification powers), where a claim is based on Article 2 and/or Article 3 ECHR and other ECHR Articles.
Section 96 of the 2002 Act: late claims :-
Human rights claims which are refused and certified under section 96 of the Nationality, Immigration and Asylum Act 2002 should not be certified under section 94B because certification under section 96 means there is no right of appeal. Section 96 removes the right of appeal against a refusal where the refusal was of a claim that could have been made earlier. Section 96 is intended to prevent claimants raising matters at the last minute to frustrate removal. A case can be certified under section 96 (if the conditions are met to do so) regardless of whether the right of appeal notified or the section 120 notice served was under the 2002 Act before its amendment by the Immigration Act 2014 or after its amendment.
Section 94 of the 2002 Act: clearly unfounded claims:-
Human rights claims which are refused and can be certified under section 94 of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded should be certified under section 94 rather than section 94B. Section 94(1) states that the Secretary of State may certify a protection or human rights claim as clearly unfounded.
In all cases where a protection and/or human rights claim is refused, Home Office caseworkers must consider whether certification is appropriate and cases that are clearly unfounded should be certified unless an exception applies. The effect of certification under section 94 is to restrict the right of appeal against refusal so that the claimant can only appeal once they have left the UK (referred to as a non-suspensive appeal).
Paragraph 353: fresh claims:-
Further submissions which raise human rights grounds, and are considered under paragraph 353 of the Immigration Rules, should not be certified under section 94B if the submissions are refused and it is determined that they do not amount to a fresh claim. This is because the decision to reject the submissions is not refusal of a human rights claim and will not generate a right of appeal. Further submissions are not defined in Paragraph 353 of the Immigration Rules. The purpose of the rule is to provide a mechanism for deciding whether a fresh claim has been made. Where it is decided that a fresh claim has not been made, there is no right of appeal against refusal of further submissions, including refusal of repeat applications. However, where further submissions are refused but it is considered that there is a fresh claim on asylum or human rights grounds, a right of appeal is generated under section 82 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014.
What of Protection claims: Articles 2 and 3 of the ECHR ?
Human rights claims (initial claims or further submissions accepted as fresh claims under paragraph 353 of the Immigration Rules) made on the basis of Article 2 (right to life) and/or Article 3 (freedom from torture or inhuman or degrading treatment or punishment, including medical claims)should not be certified under section 94B. This is because if the claim has not been certified under section 94, or has met the threshold to be accepted as a fresh claim under paragraph 353, the claim is not clearly unfounded and therefore removal pending the outcome of the appeal may give rise to a risk of serious irreversible harm or breach human rights.
Does Section 94B apply to EEA cases?
Section 94B only applies where the claimant has made a human rights claim. This means it does not apply to claims to residence under the EEA regulations. There are separate regulations – Regulations 24AA and 29AA – which allow non-suspensive appeals in certain EEA deportation cases. Separate guidance is available for EEA cases: Regulation 24AA of the Immigration (European Economic Area) Regulations 2006.
However, section 94B may be relevant, and can be applied, in certain EEA deportation cases. This situation will arise where the claim under the EEA Regulations is being considered for certification under regulation 24AA, but the claim also constitutes a human rights claim which will give rise to a right of appeal under section 82 of the 2002 Act if refused. In these circumstances, if regulation 24AA could be applied, but section 94B could not be, or vice versa, then neither part of the case should be certified. This however is recognised by the Home Office as unlikely to be the case in practice as the substantive considerations are very similar in nature.
So what happens where a person has Section 3C leave and the Section 94B power is applied?
The Section 94B guidance states: Where a person who has made a human rights claim has 3C leave, that leave will automatically be brought to an end by certification under section 94B. Section 3C leave following a decision on an application only lasts so long as the person has a right of appeal in the UK. Once a claim has been refused and certified they no longer have a right of appeal in the UK and therefore no longer have 3C leave.
The leading judgment on section 94B in the context of considering the certification of two human rights claims made by persons subject to deportation is Kiarie and Byndloss v SSHD  EWCA Civ 1020. The public interest in removal is strongest in national security cases, where the claimant has been convicted of criminal offences, and where there is evidence showing on the balance of probabilities that the claimant has engaged in serious adverse behaviour even in the absence of a criminal conviction.
It remains however to be seen in an appropriate future case, how the Courts will consider the issue of the public interest in the maintenance of effective immigration control, as an important factor in non-deportation cases in the context of Section 94B.