The Home Offices’ current position is that the recent Supreme Court judgment in Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department  UKSC 42 does not undermine the application of regulation 33 of the 2016 EEA Regulations.
The Home Office Policy Guidance Regulations 33 and 41 of the Immigration (European Economic Area) Regulations 2016 was amended on 3 August 2017 in the following regards:
Changes to reflect the Supreme Court judgment in Kiaire and Byndloss
Changes to reflect the Court of Appeal judgment in OO (Nigeria)
What can the Secretary of State do under Regulation 33?
When the power to certify under section 94B was inserted into the Nationality, Immigration and Asylum Act 2002 the 2002 Act, an analogous power was inserted into the Immigration (European Economic Area) Regulations. In summary, Section 94B allows a human rights claim to be certified where the appeal process hasn’t started or is not yet exhausted if deporting the person before the appeal process is exhausted would not be unlawful under section 6 of the Human Rights Act 1998. Certification under section 94B means the right of appeal against the decision to refuse the human rights claim will not stop a person being removed. The person will only be able to submit an appeal after they have left the UK. With effect from 1 December 2016, section 94B was 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 power to certify any human rights claim irrespective of whether the claimant is liable to deportation.
Regulation 33 of the EEA Regulations 2016 permits the Secretary of State to remove, on a temporary basis, a person who is to be deported under regulation 23(6)(b) on grounds of public policy or public security, pending the conclusion of any appeal against the decision to deport.
The Secretary of State may only remove the person if she certifies that removal pending the outcome of their appeal would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
The grounds upon which the Secretary of State may certify a removal include (in particular) that the person would not, before the appeal is finally determined, face a real risk of serious irreversible harm.
The application of a regulation 33 certificate does not prevent a person from lodging an appeal from within the UK; rather, it limits the suspensive effect of that appeal.
Therefore, whilst a person may lodge an appeal in-country, the lodging of such an appeal does not suspend removal from the UK, provided the removal is certified. Regulation 33 does not impact on the period allowed for voluntary departure, and a person liable to deportation pursuant to the EEA Regulations 2016 still has one month in which to leave the UK voluntarily before removal is enforced. The one month period to leave voluntarily will not apply in certain cases, including where the person is detained pursuant to the sentence or order of any court (regulation 32(6)(c)).
If the person applies to the appropriate court or tribunal for an interim order to suspend enforcement of the removal decision then the Secretary of State may not remove them from the United Kingdom (UK) until a decision on the interim order has been taken, except where the following applies:
the removal decision is based on a previous judicial decision
the person has had previous access to judicial review
the removal decision is based on imperative grounds of public security
Temporary admission application under Regulation 41 of the EEA Regulations:
Regulation 41 of the EEA Regulations 2016 concerns the temporary admission of a person removed under regulation 33 to submit their case in person at their appeal.
A person may apply to the Secretary of State for permission to be temporarily admitted (within the meaning of paragraphs 21 to 24 of Schedule 2 to the 1971 Act) to the UK in order to make submissions in person at their appeal where:
they are subject to a decision to remove (deport) made under regulation 23(6)(b)
they have appealed against that decision
a date for the appeal hearing has been set by the First-tier Tribunal or Upper Tribunal
they want to make submissions before the First-tier Tribunal or Upper Tribunal in person; and they are outside the UK
Current Home Office position in EEA deportation appeals following Kiarie & Byndloss:
The amended Regulation 31 Guidance states as follows relevantly:
“On 14 June 2017 the Supreme Court handed down judgment in the case of R (on the Application of Kiarie) v SSHD  UKSC 42 – the lead case on section 94B of the Nationality, Immigration and Asylum Act 2002.
The Court did not find that the power under section 94B was unlawful. However, they did find that out of country appeals do not currently provide an effective remedy in cases certified under that power, in particular because those removed under section 94B are not able to provide oral testimony at their hearings even where it may be necessary or desirable for them to do so.
Since 14 June 2017, no new cases are to be certified under section 94B.
However, certifications under regulation 33 differ significantly from certifications under section 94B. A critical difference is the fact that regulation 41 of the EEA Regulations 2016 allows a person to apply to be temporarily admitted to attend their appeal hearing. It is therefore possible for a person whose case is certified under regulation 33 to provide oral testimony in person at their appeal Lord Wilson noted this particular difference between section 94B and regulation 33 in paragraph 62 of his judgment in Kiarie and Byndloss.
There are other key differences between regulation 33 and section 94B certifications. An appeal under regulation 33 of the EEA Regulations 2016 can be commenced while the person is in the UK and therefore a person can consult their UK legal advisers before any appeal hearing. Furthermore, individuals have 30 days to leave the UK voluntarily, unless one of the exceptions in regulation 32(6) applies, which means they can also use that time to prepare evidence for an appeal. Therefore, the Supreme Court judgment in Kiarie and Byndloss does not undermine the application of regulation 33.
Decisions made under the Immigration (European Economic Area) Regulations 2006 (the ‘EEA Regulations 2006’) which were dual certified are still lawful. Section 94B certificates do not need to be withdrawn in cases which are dual certified as the individual can raise human rights in their EEA appeal, for which they can apply to return under regulation 29AA of the EEA Regulations 2006”.
When considering this point, it is important to reflect on the Supreme Court’s reasoning in Kiarie and Byndloss, and, in particular, paragraphs 60 to 78. In paragraph 76, Lord Wilson concluded that for a human rights appeal to be effective the individual ‘would need at least to be afforded the opportunity to give live evidence’. A person certified under regulation 33 will, other than in exceptional cases (see Re-entry to attend appeal in person), be able to request a return to the UK for their hearing. This means that Lord Wilson’s primary concern should not arise. However, there may be other procedural issues in an individual case that mean interim removal would render the procedure ineffective or unfair.
The Supreme Court’s findings were very specific regarding the ability of the appellant to be able to give live testimony at an appeal hearing.
Decisions made on or after 1 February 2017
The changes to the EEA Regulations that came into force on 1 February 2017 removed the need to certify under section 94B where the person has been certified under regulation 33 of the EEA Regulations 2016 (formerly 24AA) and has a right of appeal under section 82(1)(b) of the 2002 Act.
When removal is certified under regulation 33 of the EEA Regulations 2016, it has the effect of requiring an appeal under section 82(1)(b) of the 2002 Act to be brought from outside of the UK (see paragraph 2 of Schedule 2 to the EEA Regulations 2016). It is therefore no longer necessary to certify the refusal of a human rights claim under section 94B separately. The findings in Kiarie and Byndloss on section 94B are distinct from the appeal rights under the EEA Regulations as it cannot be correctly argued that it is ‘practically impossible’ for the appellant to give live testimony during their appeal hearing”.
The Secretary of State’s selective summary of OO(Nigeria):
The newly amended Regulation 33 Guidance further states as follows:
“In R (OO) (Nigeria) v SSHD  ECWA 338 the Court of Appeal confirmed the Secretary of State’s position in respect of certification under section 94B. These principles also apply to certification under regulation 33. The Court’s findings in OO (Nigeria) specifically included the following points:
rejected the contention that the public interest in certification is connected with the merits or otherwise of the underlying appeal (from the deportation order) – rather, it accepted that the public interest ‘is essentially the same as that underlying the provisions about deportation generally, namely that foreign criminals should in principle be removed from the UK as soon and as efficiently and effectively as they can be’ [paragraph 37]
agreed that there is no general duty on the Secretary of State (SoS) to pro-actively investigate the position of children. Rather, it is for the appellant to provide information on their family life, including the effect of removal on any children: ‘It should not be necessary for the SoS to make separate enquiries as to the position of any child’. The Court goes on to state that if the SoS is not satisfied ‘that all has been said that might be’ about the interests of a child, she might be obliged to make further enquiries, but confirms that these will generally be limited – ‘normally the enquiry would in the first place be of the potential deportee’s representatives’[paragraph 39]
rejected the argument that the fact that removal pending appeal would result in the loss of Indefinite Leave to Remain (ILR) was relevant [paragraph 45]
rejected the argument that a number of cumulative factors were required in order to override the best interests of a relevant child, concluding that ‘it seems …that to prescribe the operation of the balancing exercise as requiring more than one factor to be put in the opposite scale from the best interests of the children would be altogether formulaic and inappropriate’ [paragraph 51]
accepted that ‘a case based on the best interests of an affected child… would be much more powerful if it were supported by evidence showing some specific reason why the child would suffer during a period of interim removal. By itself evidence that the child would suffer from separation from the parent risks being too general, and too commonplace, to prevail over the public interest in removal’ [paragraph 61]”
What did the Secretary of State’s summary of OO(Nigeria) leave out?
OO (Nigeria), R (on the application of) v Secretary of State for the Home Department  EWCA Civ 338 was notified on 10 May 2017, two months before the Supreme Court publication of Kiarie and Byndloss.
The appeal in OO (Nigeria) was observed to concern the application of section 94B to facts which in some material respects were significantly different from those of the Court of Appeal decision in Kiarie v SSHD, R (Byndloss) v SSHD  EWCA Civ 1020,  1 WLR 1961 (Kiarie and Byndloss). It was also noted then that that decision had been appealed to the Supreme Court where argument had been heard and judgment was awaited.
In OO(Nigeria) the Court of Appeal summarised that in Kiarie and Byndloss the appellants challenged certificates under section 94B on various grounds, in particular that to oblige appellants to pursue their appeals from outside the United Kingdom did not meet the obligations of procedural effectiveness inherent in Convention rights. The Court of Appeal rejected that contention in their decision of 2015. In OO(Nigeria) it was noted neither appellant in Kiarie and Byndloss was in a position on the facts to present an argument based on respect for family life. One appellant had no wife, partner or children; the other had a wife and children but, on the evidence, had no meaningful relationship with any of them. Therefore the decision of the Court of Appeal of 2015 did not have occasion to address the question how a section 94B certificate should be approached where the prospective deportee does have a substantial relationship with wife, partner or child.
The Home Office summary of OO(Nigeria) as per the newly amended Regulation 31 Guidance neglects to include that the Court of Appeal in that case, came to the conclusion that, on the particular facts of the case, it would be disproportionate to remove OO from the United Kingdom pending his appeal against the deportation order, having regard to the best interests of his son and to the Convention right under article 8 to respect for family life. OO’s appeal was allowed and the Court of Appeal quashed the several certificates under section 94B.
The evidence that was before the Court of Appeal in OO(Nigeria) :
The evidence consisted of material from OO, from his wife, from his child’s school and from an independent social worker, and some relating to the criminal proceedings, in particular the basis and circumstances of the guilty plea and the sentencing process.
His wife described the family history in witness statements made in which she explained the effect on his child(VO) of his father’s absence while he was in prison. She also explained the difficulties that she and VO would face if they went to Nigeria with OO, in particular because she and OO are of different tribes.
The head of VO’s school wrote a letter in which he described VO as an able, happy and well-integrated pupil, but commented that while OO was absent from the family home VO’s behaviour and attitude to school was a matter of concern, and that his achievement levels had dropped dramatically, possibly because of inability to concentrate due to worry about where OO was. The teacher commented that it was important that VO should remain settled and reassured so that he can continue to make good progress in his education.
The independent social worker’s report showed that VO had a strong attachment to his father, that he had suffered from his father’s previous enforced absences from the home, and that he would suffer distress and a high level of anxiety if he were again separated from his father. The report also showed that VO would have great difficulty in relocating to Nigeria.
Court of Appeal’s conclusions in OO(Nigeria):
It was noted that the Secretary of State did not accept that VO’s best interests were incompatible with his father’s removal, even on a temporary basis. The Court of Appeal had no difficulty in accepting that it would be in VO’s best interests for OO not to be removed. Given the genuineness of the subsisting relationship between VO and his father, any other conclusion would be difficult to justify. The Court of Appeal further stated that even though the decision went on to say that, supposing that that was what would serve his best interests, it was outweighed by the public interest in the removal of a foreign criminal, it seemed to the Court that the reluctance to accept what must be in VO’s best interests justified the Court in according somewhat less weight to the Secretary of State’s own balancing exercise than it might otherwise do when the Court forms its own view as to proportionality.
The evidence left no room for doubt, that it would be in VO’s best interests for OO to be able to remain in the United Kingdom while he pursued his appeal against the deportation order.
If OO were to be removed under section 94B, VO and PO would stay in this country, and father and son would therefore be separated for a period whose length could not be foretold but which was likely to be substantial. The alternative, of the whole family moving to Nigeria, was found to be simply unrealistic. Such a separation would be contrary to VO’s best interests. His education would be likely to suffer, as it seemed to have done before, from the teacher’s evidence, and he would be likely to suffer from distress and anxiety, as indicated by the independent social worker’s report. However, this was not because of anything specific to VO’s situation or circumstances during the interim period; it was because it was better for the son that he should not be separated from his father, and also because (as would generally be the case in situations of this kind) a further separation would be likely to exacerbate the effect of the separation that had already occurred during OO’s period of imprisonment and his periods of immigration detention. VO’s best interests were a primary consideration, which is why the Court took them first.
It was relevant to consider the nature of the offence, and OO’s conduct since then. It was an offence of dishonesty, but there were significant mitigating features. Additionally, among other matters, the pre-sentence report recommended a suspended sentence, which would not have exposed him to the risk of deportation. OO had shown genuine remorse. His risk of re-offending had been assessed to be low. It was also noteworthy that it was not suggested that his conduct since the offence (committed in 2011) had been other than satisfactory.
The Court of Appeal accepted the argument for the Secretary of State that a case based on the best interests of an affected child, such as VO , would be much more powerful if it were supported by evidence showing some specific reason why the child would suffer during a period of interim removal. By itself evidence that the child would suffer from separation from the parent risks being too general, and too commonplace, to prevail over the public interest in removal. However, the Court stated that in the present case, it seemed that the strength of the public interest in removal was reduced from what it might otherwise be because of the mitigating factors which the Court had mentioned in its judgement.
The Court of Appeal concluded that the balancing exercise that it considered appropriate on the facts resulted in the conclusion that it would be a disproportionate interference with the article 8 rights of OO and VO for OO to be removed under section 94B pending the pursuit of his appeal. In the Court’s judgment the best interests of VO should prevail over the public interest in the removal of foreign criminals, given the mitigating factors which the Court mentioned as regards the offence, OO’s conduct in relation to it and his conduct since it was committed.
The Court of Appeal therefore allowed the appeal, granted permission to apply for judicial review of the latest decision of the Secretary of State, and granted such relief by quashing the several certificates dated 8 December 2014, 6 January 2015 and 30 January 2017.
Currently, the Home Office website indicates that the Section 94B Guidance that was last updated on 20 January 2017 has been withdrawn and was archived on 3 August 2017. This might not be an indication that fresh new Section 94B Guidance will not be forthcoming as the newly amended Guidance in relation to Regulation 33 opens with Secretary of State’s stated view: “The Court did not find that the power under section 94B was unlawful…………”
My blog article of 14 June 2017, Deport First, Appeal later provisions unlawful: Supreme Court brings to a screeching halt the UK Government’s sustained erosion of appeal rights, mused as follows: “……. In light of the Supreme Court decision, affected guidance will either be completely removed or amended…………… it is reasonable to expect the process to begin imminently”. The Section 94B Guidance has been removed, however it might be that new guidance will be published maintaining Section 94B Certification in relation to deportation cases but with the Government only giving in to the extent that the Home Secretary’s extended power to certify non-deportation cases is withdrawn. The Government may perhaps in this regards take their cue from the Supreme Court decision in Kiarie and Byndloss, paragraph 9 which states: “……..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”.
It was perhaps to be expected by some that Regulation 33 might survive the decision in Kiarie and Byndloss as the Supreme Court also specifically stated 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”. This paragraph has been referred to in the amended Regulation 33 Guidance. In light of this, it seems it was more expedient to amend the Guidance in relation to Regulations 33 and 41, however the omission to publish any new applicable Section 94B Guidance at the same time is glaring. It is clear the Secretary of State has quite a difficult task ahead of her following the Supreme Court decision. The justifications in the newly amended Regulation 33 Guidance appear somewhat laboured more so considering that it has taken the Secretary of State nearly two months since Kiare and Byndloss to justify the continuation of Regulation 33 in just a few paragraphs. On the other hand, the length of time taken also appears to suggest the Secretary of State knows by now her exact position in relation to Section 94B.