The outcome in Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department  UKSC 42 (14 June 2017) in the Supreme Court is the epitome of immigration lawyer nirvana. When making deportation orders in Kiarie and Byndloss, the Secretary of State issued Section 94B certificates, the effect of which was that they could bring their appeals only after they had been deported to Kenya and Jamaica. The issue in the two appeals before the Supreme Court was whether the certificates were lawful. Did the certificates breach the rights of the appellants under Article 8 of the ECHR? Unlike the Court of Appeal, the Supreme Court has most sensibly decided that the Section 94B certification procedure is unlawful and unfair.
A deliberate erosion of appeal rights was carefully, determinedly and deliberately being sustained by the UK Government via the Section 94B certification procedure, with an initial focus upon those who had committed criminal offences in the UK being deported from the UK before they could bring appeals. In light of the nature of some of the crimes committed, some may not have considered it particularly objectionable that the Secretary of State should certify a human rights claim made by a person liable to deportation- ie someone who had previously committed serious criminal offences in the UK. As observed by the Supreme Court at paragraph 32 of their decision, “Thus the specific, linked objectives of section 94B were alleged to have been to reduce delay in the determination by the tribunal of human rights appeals and to prevent an appellant’s abuse of the system by seeking to strengthen his claim during the pendency of his appeal. But, as the Secretary of State no doubt correctly submits, there was also a more fundamental objective, arising from the very fact that the potential subjects of certification were very largely, like the two appellants, foreign criminals”.
The problem however is that an erosion of appeal rights initially targeted at the “undesirables” can quickly evolve to encompass other immigrants that one would never have contemplated would be subject to such unfair provisions. Of note: with effect from 1 December 2016, section 94B was amended so as to extend the Secretary of State’s power to certify under the section potentially all human rights claims. As noted by the Supreme Court, although the extended power of certification effective from 1 December 2016 did not fall to be considered in the appeals before them, their decision would however surely impact on the extent of its lawful exercise.
In light of the Supreme Court decision, the following questions arise:
Is there likely to be more increased use of other methods of certification?
What happens to the associated certification procedure in EEA deportation appeals?
Is it wrong to expect an imminent dismantling/removal/amendment of current supportive Section 94B policy guidance?
Surely the Secretary of State’s “Remove now, Appeal later” policy is now in tatters?
Four important features of the background
The Supreme Court considered that the relevant circumstances must be considered against four features of the background:
1. The proposed deportations would be events of profound significance for the future lives of Mr Kiarie, his parents and siblings; and of Mr Byndloss and, to the extent that he has or might otherwise develop a genuine relationship with them, also of his children. It was noted that in the absence of exceptional circumstances, the Secretary of State would not even consider whether to readmit either of the appellants to the UK within ten years of the date of the deportation orders: paragraph 391(a) of the Immigration Rules.
2.In the absence of certificates that they are clearly unfounded, the proposed appeals of these appellants must be taken to be arguable.
3.Particularly in the light of the Supreme Court’s decision in Ali v Secretary of State for the Home Department  UKSC 60,  1 WLR 4799 , every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed. He needs to be in a position to assemble and present powerful evidence. The Supreme Court made it clear that it must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters:
the depth of the appellant’s integration in UK society in terms of family, employment and otherwise;
the quality of his relationship with any child, partner or other family member in the UK;
the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise;
the impact of his deportation on the need to safeguard and promote the welfare of any child in the UK;
the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case,
any significant risk of his re-offending in the UK, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.
4. It was noted that the authority responsible for having directed the dramatic alteration in the circumstances of the appellant even in advance of his appeal was the Respondent to the appeal herself. Lord Wilson referred to R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)  EWCA Civ 840,  1 WLR 5341, where the Court of Appeal upheld the quashing of the “Fast Track Rules”. It was noted that having referred in paragraph 27 of his judgment to “the principle that only the highest standards of fairness will suffice in the context of asylum appeals”, Lord Dyson explained at paragraph 38 that the timetable for the conduct of the appeals was so tight that a significant number of appellants would be denied a fair opportunity to present them. He explained at paragraphs 46 to 48 that in those circumstances the court had no need to address a further argument that it had been in breach of natural justice for the Home Secretary, as the respondent to any appeal, to have been able, by detaining the asylum seeker at a specified location, to cause him to be placed into the fast track. Lord Dyson suggested, however, that, had the rules for the fast track been fair, it would have been irrelevant that it was the Home Secretary who had caused them to be engaged. Lord Wilson indicated that he agreed with Lord Dyson and stated that the role of the Secretary of State to the proposed appeals in seeking to achieve the removal of the appellants in advance of their determination, taken in conjunction with the first three of the background features set out above, required the Supreme Court to survey punctiliously, and above all realistically, whether, if brought from abroad, their appeals would remain effective. It was considered that is what their human rights required.
How the Supreme Court disagreed with the Court of Appeal
Lord Wilson gave the leading judgment with Lady Hale, Lord Hodge and Lord Toulson agreeing:
Lord Wilson observed that the Secretary of State submitted that the strong public interest in the deportation of foreign criminals extended to their deportation in advance of their appeals. That submission was noted to have found favour in the Court of Appeal with Richards LJ observing that the very fact of Parliament’s enactment of section 94B exemplified the public interest in deportation even in that situation; that therefore “substantial weight must be attached to that public interest in that context too”; and that, in assessing the proportionality of a certificate, “the public interest is not a trump card but it is an important consideration in favour of removal”.
Lord Wilson however disagreed with Richards LJ’s observations. Lord Wilson noted that one aspect of the public interest that was said to be a concern was that, if permitted to remain in the UK pending his appeal, a foreign criminal might seek to delay its determination in order to strengthen his personal and family connections here. Lord Wilson however considered that the tribunal would be alert not to allow objectively unwarranted delay. He referred to the public interest that, when afforded a right of appeal, the appeal should be effective. It was noted that in published guidance to her case-workers the Secretary of State had made clear that there was no need to consider certification of a claim under section 94B if it could be certified under section 94. Lord Wilson therefore stated that as exemplified in the cases of Mr Kiarie and Mr Byndloss, a certificate under section 94B is of a human rights claim which is not clearly unfounded, which in other words is arguable. In Lord Wilson’s view, the public interest in a foreign criminal’s removal in advance of an arguable appeal is outweighed unless it can be said that, if brought from abroad, the appeal would remain effective.
Lord Wilson also noted that Richard LJ in the Court of Appeal had earlier observed as follows: “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.” Lord Wilson however refused to associate himself with this observation. He stated that it would lull Home Office case-workers into thinking that they would be safe to concentrate on weighing a real risk of serious irreversible harm to the prospective appellant himself. But, a specific focus on the risk of serious harm to the prospects of his appeal might very well ground a conclusion that his removal in advance of it would breach his Convention rights.
Lord Wilson considered that on an appeal against a deportation order the overarching issue for the tribunal will be whether the deportation would be lawful. He stated however that, if the certificate under section 94B is lawful, the appellant will already have been deported. In determining the overarching issue the tribunal will be likely to address in particular the depth of his integration in UK society and the quality of his relationships with any child, partner or other family member. But, were the certificate under section 94B lawful, his integration in UK society would already have been cut away; and his relationships with them ruptured.
The Supreme Court’s approach to the issues
Lord Wilson approached the issues as follows:
It was considered one thing further to weaken an appeal which can already be seen to be clearly unfounded, however quite another significantly to weaken an arguable appeal: such was a step which called for considerable justification. In Lord Wilson’s view the effect of an appellant’s immediate removal from the UK would probably be significantly more damaging than that of his prior incarceration in the UK.
The Supreme Court observed that legal aid is not generally available to an appellant who contends that his right to remain in the UK arises out of article 8. For present purposes it was considered far from clear that an appellant relying on article 8 would be granted legal aid. Even if an appellant abroad secured legal representation from one source or another, he and his lawyer would face formidable difficulties in giving and receiving instructions both prior to the hearing and in particular during the hearing. Lord Wilson stated that the issue for the Court was not whether article 8 requires a lawyer to be made available to represent an appellant who has been removed abroad in advance of his appeal but whether, irrespective of whether a lawyer would be available to represent him, article 8 requires that he be not removed abroad in advance of it.
The Court considered that if to stand any worthwhile chance of winning his appeal, an appellant needs to give oral evidence to the tribunal and to respond to whatever is there said on behalf of the Home Secretary and by the tribunal itself. In a witness statement he may or may not be able to express to best advantage his resolution to forsake his criminal past. On its own, the statement would not generally cut much ice with the tribunal. The tribunal will want to hear how an appellant explains himself orally and, in particular, will want to assess whether he can survive cross-examination in relation to it. Lord Wilson was unpersuaded that the tribunal would usually be able properly to conduct the assessment without oral evidence from the appellant whose relationships are under scrutiny. It was considered that the evidence of the adult family members might either leave gaps which he would need to fill or betray perceived errors which he would seek to correct. It was stated by the Court that in many cases an arguable appeal against deportation is unlikely to be effective unless there is a facility for the appellant to give live evidence to the tribunal.
As regards summons requiring an Appellant’s attendance as a witness at the hearing, the Secretary of State suggested that the tribunal could, by direction, stress the desirability of the appellant’s attendance before it and that, were she thereupon to fail to facilitate his attendance, the appellant could seek judicial review of the certificate under section 94B and, if successful, a consequential order for his return at least pending the appeal. Lord Wilson considered that whether the tribunal could, or if so would, give such a direction in the teeth of a subsisting certificate was doubtful; and in any event it seemed entirely impractical for an appellant abroad to apply first for the unenforceable direction and then for judicial review of any failure to comply with it.
The Supreme Court noted the suggestion that the appellant could seek to persuade the tribunal to permit him to give live evidence from abroad by video link or, in particular by Skype. The Court considered that there was no doubt that, in the context of many appeals against immigration decisions, live evidence on screen is not as satisfactory as live evidence given in person from the witness box. The ability of a witness on screen to navigate his way around bundles is also often problematic, as is his ability to address cross-examination delivered to him remotely, perhaps by someone whom he cannot properly see. But, although the giving of evidence on screen is not optimum, it might well be enough to render the appeal effective for the purposes of article 8, provided only that the appellant’s opportunity to give evidence in that way was realistically available to him.
The Supreme Court observed that the tribunal requires an applicant to pay for provision of the necessary equipment not only at the distant end but also at the hearing centre itself. The cost of hiring the necessary equipment for use at the distant end of any evidence given by video link or Skype is only part of the cost which an appellant must bear. He must also bear the cost of providing the equipment for use at the hearing centre and he may well have to pay for the attendance beside him of someone able and willing to exercise the degree of control required by the tribunal. Apart, however, from having to meet the overall costs of giving evidence in that way, an appellant has to confront formidable technical and logistical difficulties.
Further, apart from the difficulty surrounding his giving live evidence to the tribunal, an appellant deported in advance of the appeal would probably face insurmountable difficulties in obtaining the supporting professional evidence which , can prove crucial in achieving its success.
Lord Wilson concluded that, for the two appellant’s appeals to be effective, they would need at least to be afforded the opportunity to give live evidence. The evidence of the Home Secretary was noted to be that applications to give evidence from abroad are very rare. The Supreme Court considered that this was because the financial and logistical barriers to an appellant giving evidence on screen are almost insurmountable. It was noted that the Court of Appeal had indorsed a practice in which, it seemed, the Home Secretary has, routinely, exercised her power under section 94B to certify claims of foreign criminals under article 8. But it was noted that she had done so in the absence of a Convention-compliant system for the conduct of an appeal from abroad and, in particular, in the absence of any provision by the Ministry of Justice of such facilities at the hearing centre, and of some means by which an appellant could have access to such facilities abroad, as would together enable him to give live evidence to the tribunal and otherwise to participate in the hearing.
The Supreme Court’s Conclusions
The proper context of the claim was whether deportation pursuant to the two certificates under section 94B would breach the procedural requirements of article 8. It was considered that the appellants had undoubtedly established that the certificates represented a potential interference with their rights under article 8. Deportation pursuant to them would interfere with their rights to respect for their private or family lives established in the UK and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective.
It was considered that the burden then fell on the Home Secretary to establish that the interference was justified and, in particular, that it was proportionate: specifically, that deportation in advance of an appeal has a sufficiently important objective; that it is rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation strikes a fair balance between the rights of the appellants and the interests of the community. It was noted that the alleged objectives behind the power to certify a claim under section 94B had been set out in the judgement.
Lord Wilson turned to address the fair balance required by article 8 and he concluded for the reasons given above that, while the appellants had in fact established that the requisite balance is unfair, the proper analysis was that the Home Secretary had failed to establish that it is fair.
The Supreme Court allowed the two appeals and quashed the Section 94B certificates.
The decision of the Supreme Court potentially affects issues on several levels as set out below:
Increased use of other methods of certification?
The Secretary of State can no longer utilise Section 94B, however following the Supreme Court decision, there might very likely be increased use of other methods of certification by the Secretary of State:
Section 94 certification – Section 94(1) of the 2002 Act states that the Secretary of State may certify a protection or human rights claim as clearly unfounded. 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).
Section 96 certification- Section 96 of the 2002 Act removes the right of appeal against a refusal where the refusal was of a claim that could have been made earlier.
What happens to the associated certification procedure in EEA deportation appeals?
Current Home Office Guidance, Regulations 33 and 41 of the Immigration (European Economic Area) Regulations 2016, Version, 5.0 1 February 2017, states:
“Regulation 33 is similar in wording to section 94B of the Nationality, Immigration and Asylum Act 2002. The leading judgment on section 94B is Kiarie and Byndloss v SSHD  EWCA Civ 1020, which was handed down by the Court of Appeal on 13 October 2015. This guidance reflects the changes made to the section 94B guidance as a result of the judgment in Kiarie and Byndloss…………….. In the context of an Article 8 claim, you must also consider the public interest in requiring a person to appeal from abroad. The Court of Appeal held in Kiarie and Byndloss v SSHD  EWCA Civ 1020…………….. Although the Court of Appeal was considering section 94B, the principle applies equally to regulation 33, because both provisions are considering the proportionality of removal within the context of section 6 of the Human Rights Act 1998”.
Prior to the coming into force of the 2016 EEA Regulations, the current Regulation 33 certification could be found in Regulation 24AA of the 2006 EEA Regulations. Current Regulation 41(previously Regulation 29AA) now reflects the re-entry procedure to present appeals in person.
The question is this: the Court of Appeal decision in Karie and Byndloss having been overturned, does this mean that Regulation 33 (previously Regulation 24AA Certification) similarly will need to be revisited, potentially becoming redundant?
I prepared the grounds for permission in R (on the application of Masalskas) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) IJR  UKUT 00677 (IAC), where following the grant of permission the Upper Tribunal acknowledged that in relation to Regulation 24AA and 29AA, “ As far as we are aware, ours is one of the first cases which seeks to deal in any depth with their proper scope and meaning”. The Upper Tribunal also acknowledged that, “It has assisted our task that the day before our the hearing the Court of Appeal gave judgment in the case of Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department  EWCA Civ 1020 (13 October 2015) (hereafter “Kiarie and Byndloss”) which concerned a very similar provision to regulation 24AA set out in the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) (as amended), namely section 94B”. The negative outcome in Masalskas was more or less a rubber stamping of the Court of Appeal decision on Kiarie and Byndloss.
At paragraph 62 of his judgement in Kiarie and Bydnloss, Lord Wilson observed:
“When the power to certify under section 94B was inserted into the 2002 Act, an analogous power was inserted into the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (“the 2006 Regulations”), now recently replaced. Regulation 24AA(2) enabled the Home Secretary to add to an order that an EEA national be deported from the UK a certificate that his removal pending any appeal on his part would not be unlawful under section 6 of the 1998 Act. But regulation 24AA(4) enabled him to apply “to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision”. In Secretary of State for the Home Department v Gheorghiu  UKUT 24 (IAC), the Upper Tribunal (Blake J and UTJ Goldstein) observed at para 22 that, on an application for an order to suspend enforcement, the court or tribunal would take due account of four factors. The fourth was
“that in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the offender give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact-finding process …”
The Supreme Court however did not address the issues in any definitive clarificatory sense save to continue at paragraph 62: “It is also worthwhile to note that, even if an EEA national was removed from the UK in advance of his appeal, he had, save in exceptional circumstances, a right under regulation 29AA of the 2006 Regulations (reflective of article 31(4) of Directive 2004/58/EC) to require the Home Secretary to enable him to return temporarily to the UK in order to give evidence in person to the tribunal”.
Future litigation is of course expected in relation to the certification procedure in EEA deportation appeals so as to resolve issues following Kiarie and Byndloss.
Dismantling/removal/amendment of current supportive Section 94B policy guidance
The following Home Office Policy Guidance is relevant to Section 94B Certification: Section 94B of the Nationality, Immigration and Asylum Act 2002, Version 8.0, 20 January 2017.
In relation to certification as regards EEA deportation, the following Guidance is relevant: Regulations 33 and 41 of the Immigration (European Economic Area) Regulations 2016, Version 5.0, 1 February 2017.
Other Home Office policy guidance refer to Section 94B. In light of the Supreme Court decision, affected guidance will either be completely removed or amended. As Section 94B is unlawful, it is reasonable to expect the process to begin imminently.
“Remove now, Appeal later” policy in jeopardy?
Amendments to Section 94B of the 2002 Act came into force on 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.
At paragraph 9 of his judgment in Kiarie and Byndloss, Lord Wilson stated as follows:
“ With effect from 1 December 2016, section 94B of the 2002 Act (to which I will refer simply as section 94B) has been amended by section 63 of the Immigration Act 2016 so as to extend the Home Secretary’s power to certify under the section. Since then she has had power to certify any human rights claim irrespective of whether the claimant is liable to deportation. The extended power does not fall to be considered in these appeals but our decision today will surely impact on the extent of its lawful exercise”.
Clearly the Secretary of State’s newly introduced policy of “remove now, appeal later” is in tatters. It seems only a matter of time, however relevant published changes are expected imminently.
Application Form FLR (FP) currently provides;
“If your application/claim is refused, it may be certified under section 94 or 94B of the Nationality, Immigration and Asylum Act 2002 so that any appeal must be brought after you have left the UK. A claim cannot be certified under section 94B if requiring you to appeal from outside the UK would cause serious irreversible harm or otherwise breach human rights. You can find information on certification, and the kind of evidence you should provide to us if you consider that your claim should not be certified, on the visas and immigration pages of gov.uk. 11.4 If your claim is refused, are there any reasons that you would not be able to appeal from outside the UK? Give reasons and list any evidence you will provide”.