After Kiarie and Byndloss: Applicant has a second bite of the cherry in a Section 94(B) certification case

QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413 (21 June 2018) addresses several important strands arising out of a challenge in the Court of Appeal to a Section 94(B) Certificate.

 

 

Interestingly, in QR(Pakistan), the Court of Appeal granted permission for judicial review in a case where the Applicant had prior to his deportation in February 2017, unsuccessfully mounted a challenge in relation to a previously issued Section 94(B) certificate. After his deportation and following the publication Kiarie and Byndloss in June 2017 in the Supreme Court, well out of time, the Applicant sought to resurrect his previous claim by lodgement of further judicial proceedings in September 2017 whilst abroad.

 

Background and the previous challenge to the Section 94( B) certificate:

 

The Applicant, a Pakistan national, who had overstayed previously given leave to remain as student, was deported from the United Kingdom to Pakistan on 28 February 2017.

 

What gave rise to deportation proceedings was a sentence of 13 October 2015 to 16 months’ imprisonment for blackmail.

 

On 25 April 2016, the Applicant was served with a notice of decision refusing his article 8 claim, and a deportation order. The article 8 claim was certified under section 94B of the 2002 Act on the basis that his removal before the appeal was heard would not breach article 8.

 

On 9 May 2016, judicial review proceedings were issued in the Upper Tribunal challenging the certification

 

On 12 June 2016, the Applicant’s daughter, a British citizen was born.

 

The Upper Tribunal refused permission to proceed with the judicial review, a decision that was confirmed at an oral hearing before the Upper Tribunal. On 11 October 2016, the Applicant lodged an appeal with the Court of Appeal.

 

After the Applicant was detained pending removal on 31 January 2017, representations for his release on temporary admission on the basis of new evidence as to his daughter’s birth and his wife’s further pregnancy were sent to the Secretary of State.

 

Detention continued until 10 February 2017 when the Secretary of State issued a new decision to refuse the Applicant’s claim based on the new material and to certify that claim under section 94B.

 

The Applicant issued an application to the Court of Appeal for an order restraining removal, which included an application to amend the judicial review grounds to include a challenge to the 10 February 2017 certification decision. On 24 February 2017, Irwin LJ refused permission to appeal and the application for interim relief.

 

The Applicant was removed to Pakistan on 28 February 2017.

 

On 13 March 2017, the Applicant lodged an appeal against the 10 February 2017 refusal of his article 8 claim with the First-tier Tribunal.

 

On 22 May 2017, his wife gave birth to a second child, also a British citizen.

 

Notification of Kiarie and Byndloss prompts new judicial review proceedings:

 

On 14 June 2017, the Supreme Court handed down their judgments in Kiarie & Byndloss.

 

Following the forwarding of a letter before claim on 31 July 2017, the Applicant lodged judicial review proceedings on 25 September 2017.

 

In essence, the claim was to challenge the continuing failure and refusal of the Secretary of State:

 

  • to accept that his decisions of 25 April 2016 and 10 February 2017 to certify the Applicant’s human rights claims under section 94B were unlawful

  • to return the Applicant to the UK to pursue an in-country right of appeal against the refusal of his claim for leave to remain on human rights grounds.

The Applicant also sought relief in respect of two periods of unlawful detention, a claim linked to the certification decisions.

 

On 8 December 2017, Nicholas Padfield QC sitting as a Deputy High Court Judge considered the permission application on the papers and concluded as follows:

 

  • He treated the claim as in substance seeking to challenge the decisions of 25 April 2016 and 10 February 2017 to certify the Applicant’s article 8 claim under section 94B.

  • He found that claim had been brought neither promptly nor within three months; that no explanation had been given for the delay; and that there was no basis for extending time in anticipation of a favourable result to the claim following Kiarie & Byndloss.

  • He refused the application on that basis, but also commented that (i) this case was “plainly distinguishable” from Kiarie & Byndloss, and (ii) the Applicant had produced no cogent evidence to support the contention that an out-of-country appeal would in any way prejudice his ability to pursue his right of appeal. He declared the claim to be totally without merit, thereby removing the Applicant’s right to an oral reconsideration of the application for permission to proceed in the High Court.

The Applicant’s appeal against that order was issued in the Court of Appeal on 15 December 2017.

 

Multiple bites of the cherry – persistence pays off:

 

(a) Kiarie & Byndloss considered relevant to Applicant’s claim:

 

The Court of Appeal agreed with the Deputy Judge that the judicial review claim was essentially a challenge to the decisions on 25 April 2016 and 10 February 2017 to certify the Applicant’s claims that to remove him would breach article 8.

 

The Court sought to approach the decisions of 15 April 2016 and 10 February 2017 differently:

 

  • It was noted that the 25 April 2016 decision to certify had been the subject of a previous judicial review. Permission to proceed with a judicial review of that decision was refused by the Upper Tribunal both on paper and at an oral reconsideration; and permission to appeal to the Court of Appeal was refused by Irwin LJ on 24 February 2017. No application to reopen that appeal had been made; but, if an application to reopen were to be made now, it would be highly unlikely to succeed. The Court of Appeal therefore decided that on the applications before it, it was not needed to consider further the 25 April 2016 decision to certify.

  • The Court decided that its focus must be on whether the 10 February 2017 certification was arguably unlawful

  • It was observed that when Irwin LJ made his decision, it was on the basis of the law as it was understood prior to the Supreme Court judgments in Kiarie & Byndloss, which were not handed down until four months later. The Court of Appeal stated that it could not agree with the Deputy Judge’s view that Kiarie & Byndloss was irrelevant to the Applicant’s claim, or that his claim was plainly distinguishable from that case.

  • The Court noted that like the present claim, Kiarie & Byndloss was concerned with whether an out-of-country appeal would be effective for the protection of the article 8 rights of the particular applicant and his family members. The approach mandated by Kiarie & Byndloss to such matters applied to the present case. It was considered that neither Irwin LJ (in his decision of 24 February 2017) nor the Secretary of State (in the letter of 10 February 2017) nor the Deputy Judge (in his decision of 8 December 2017) adopted that approach.

 

(b)Court of Appeal refuses to bar the judicial review claim lodged 4months out of time:

 

The Court of Appeal noted that the Deputy Judge considered that the challenge to the 10 February 2017 certification decision was late, in that the judicial review was not lodged until September 2017, four months after the expiry of the three month period in which such claims are to be issued as prescribed by CPR rule 54.5.

 

The Court stated that the proper approach to an extension of time in the circumstances of the case was that set out in respect of relief from sanctions in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537; [2014] 1 WLR 795 and Denton v TH White Limited [2014] EWCA Civ 906; [2014] 1 WLR 3926. It involves three stages.

 

  • The court must first identify and assess the seriousness and significance of the relevant failure to comply with any rule, practice direction or court order, taking into account the materiality of the breach including its effect on the conduct of the litigation and of litigation generally. If the breach is neither serious nor significant, then the court will likely grant relief.

  • If it is serious and/or significant, then the court will consider why the default occurred. If good reason for the breach is shown, then again relief will usually be granted.

  • Finally, the court will evaluate all the circumstances of the case, so as to enable it to deal justly with the application, giving particular (although not paramount) importance to the factors in CPR rule 3.9(1), i.e. the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.

The Court of Appeal accepted that in the Applicant’s case, the delay was lengthy, was serious and/or significant. It was however considered that the overwhelming reason for it was the change in the law as properly understood after Kiarie & Byndloss. It was observed that after the Supreme Court judgments were handed down, the Applicant wrote a pre-action letter to the Secretary of State within about six weeks.

 

In considering the time taken to issue proceedings, the fact that the Applicant’s solicitors had to take instructions from abroad had to be taken into account.

 

The Court of Appeal concluded that in all the circumstances of the case, it would not bar the Applicant’s claim for judicial review on the grounds of delay.

 

The Court therefore gave the Applicant the necessary extension of time so that his claim was in time.

 

(c) Court of Appeal grants permission to proceed with judicial review:

 

The Court decided that following Kiarie & Byndloss, it would grant the Applicant permission to proceed with the judicial review.

 

It was considered that his challenge to the 10 February 2017 certification was at least arguable; and that it would be most appropriate, rather than grant permission to appeal, to grant permission to proceed with an application for judicial review and to remit that application to the Administrative Court for determination.

 

Given that there may be findings of fact to be made in relation to the claim, it was decided that it was most appropriate forum to deal with the substantive application for judicial review. It could also deal with any linked claim for unlawful detention.

 

Confirmation of what the Supreme Court said in Kiarie and Byndloss:

 

The Court of Appeal reiterated that the Supreme Court in Kiarie and Byndloss held that the public interest in removing a foreign criminal prior to his appeal being heard to avoid the risk of reoffending has to be balanced against the public interest in ensuring that the appeal remains effective for the purposes of protecting the relevant article 8 rights.

 

It held that 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 abroad, the appeal would remain effective. The Supreme Court made clear that whether concerns can be addressed is quintessentially a fact-specific matter, the relevant question being whether the Secretary of State has established that, in all the circumstances, an out-of-country appeal is effective for the particular individual.

 

The Supreme Court concluded that, on the available evidence, the appellants in each case before it would not have a proper opportunity of presenting their case remotely; and so an out-of-country appeal would not be an effective procedure for the protection of their article 8 rights.

 

 

Re-iteration of Nixon & Tracy propositions and approval of Upper Tribunal Guidance in AJ(Nigeria):

 

As regards the application for interim relief in the form of a mandatory order requiring the Secretary of State immediately to return the Applicant to the UK, the Court of Appeal referred to R (Nixon and Tracey) v Secretary of State for the Home Department [2018] EWCA Civ 3, “Nixon & Tracey” and placed particular reference to the propositions set out in paragraph 75 of that judgement.

 

It was stated that like Byndloss & Kiarie itself these propositions emphasise the fact that the requirement for the assessment of effectiveness for these purposes is focused on the particular individual circumstances of the case.

 

The Court of Appeal further approved the approach taken by the Upper Tribunal since Kiarie & Byndloss.  It was noted that in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC) , “AJ (Nigeria)“, the Upper Tribunal having considered both Byndloss & Kiarie and Nixon & Tracey, gave the following guidance (as set out in the head note):

 

“(1) In the light of [Kiarie & Byndloss], the First-tier Tribunal should adopt a step-by-step approach, in order to determine whether an appeal certified under section 94B of the Nationality, Immigration and Asylum Act 2002 can be determined without the appellant being physically present in the UK.

 

(2) The First-tier Tribunal should address the following questions:

 

  1. Has the appellant’s removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from [UK] lawyers?

  2. If not, is the appellant’s absence from the [UK] likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?

  3. If not, is it necessary to hear live evidence from the appellant?

  4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?

(3) The First-tier Tribunal should not lightly come to the conclusion that none of the issues covered by the first and second questions prevents the fair hearing of the appeal.

(4) Even if the first and second questions are answered in the negative, the need for live evidence from the appellant is likely to be present. A possible exception might be where the respondent’s case is that, even taking a foreign offender appellant’s case at its highest, as regards family relationships, remorse and risk of re-offending, the public interest is still such as to make deportation a proportionate interference with the Article 8 rights of all concerned.

(5) If the First-tier Tribunal concludes that the appeal cannot be lawfully determined unless the appellant is physically present in the [UK], it should give a direction to that effect and adjourn the proceedings.”

 

 

Refusal to order Applicant’s immediate return to the UK:

 

In relation to whether interim relief should now be granted to require the Secretary of State to take immediate steps to return the Applicant to the UK, the Court of Appeal did not consider that the Court’s discretion should be exercised to make any such order at this stage. The Court took into account the following matters, amongst others:

 

  • The Applicant was removed about 15 months ago; and, in assessing amongst other things the best interests of the children, the Court had to take into account (e.g.) the possibility of the trauma that might be caused if the Applicant were to be returned to the UK and shortly thereafter removed again.

  • The Applicant was deported on the basis of a deportation order that was at least apparently lawful. The Secretary of State had certified the Applicant’s human rights claim in accordance with the authorities as they then stood; and, on the basis of full and up-to-date evidence, only a few days before the Applicant’s removal, Irwin LJ had refused a stay on his removal. As at the date of the removal, there were no outstanding appeals or other proceedings seeking to challenge the certification or the removal itself.

  • Although the Applicant aware that Kiarie & Byndloss had been heard in the Supreme Court, no application was made in the original judicial review, before Irwin LJ, shortly before the removal directions were due to be implemented that the claim/appeal should be stayed pending the outcome of that case in the Supreme Court. No claim on the basis of any deficiency in an out-of-country appeal was made until some weeks after the Supreme Court judgments in Kiarie & Byndloss had been handed down.

  • The Court stated that it fully appreciated that the rights of two children, British citizens were involved – and their rights are a primary consideration. It was however noted that the Applicant married his wife after he committed the serious offence that led to the deportation order. They had been in a relationship for only six months. He was deported about two years after the marriage, of which he had spent about 12 months in prison or detention. He had little contact with either of his children. The family had lived apart since his deportation in February 2017, having during that time met only relatively briefly in Dubai. Although it was appreciated that the family had been split because of the removal which the Applicant contended was unlawful, as Lord Wilson indicated in Kiarie & Byndloss at [58], actual separation unfortunately but inevitably undermines the strength of the ties upon which article 8 rights depend.

  • Nor was the evidence of difficulties obtaining instructions etc suggestive of insuperable difficulties, as opposed to mere inconvenience.

  • The Court did not consider that the fact that, following Kiarie & Byndloss, the Secretary of State directed that section 94B certificates should not be issued for the time being to be of any assistance to the Applicant. In the light of the judgments in that case, it was understandable that the Secretary of State introduced such a policy until the efficacy of new systems for out-of-country appeals had been tried and tested.

  • It was noted that the Secretary of State had indicated that the First-tier Tribunal are currently hearing both mock appeals and substantive appeals using video links, with some success. Two mock hearings had been held using facilities in Pakistan, and lead cases involving links with Pakistan are currently being heard. Whether a video link is sufficient to give an appellant’s article 8 rights adequate protection will necessarily require a fact-specific assessment. The Court of Appeal stated that these examples suggest that video link may be sufficient in at least some cases and that insuperable issues concerning data protection and privacy do not arise in every case.

  • It was accepted that the First-tier Tribunal not only has the jurisdiction to consider whether the proceedings before it are compliant with the procedural obligations of article 8, but the tribunal has an obligation to ensure compliance; and it was accepted that the tribunal is the optimal forum for determining such an issue. The tribunal has advantages over the Court of Appeal and the Administrative Court – in terms of constitution, experience and facilities; and, in these circumstances, the specialist tribunal would be able to look at the details required to ensure an effective appeal.  If the tribunal in the present case, at any time, consider that the Applicant’s appeal cannot be dealt with effectively out-of-country – or cannot be dealt with effectively out-of-country within a reasonable time – then it could and must say so. The guidance in AJ (Nigeria) suggests that, in these circumstances, a direction to that effect should be given by the tribunal, and the appeal should be adjourned, presumably to allow the Secretary of State to consider his position and for the Applicant to make such application to the High Court as he considers appropriate and necessary.

The Court of Appeal therefore concluded that neither justice or fairness demanded a mandatory order requiring the Secretary of State to take steps to return the Applicant at this stage. Such an order, would be neither appropriate nor proportionate. If there came a stage when it appears that an effective out-of-country appeal cannot be conducted – or conducted within a reasonable time – then, it would be open for the Applicant to make a further application to the High Court.

 

Acknowledgment by Court of Appeal of the problem of the “several hundred cases” removed prior to Kiarie and Byndloss:

 

The Court of Appeal acknowledged that it was aware that there were several hundred cases in which the Secretary of State had removed individuals from the UK under deportation orders on the basis of a section 94B certificate, prior to Supreme Court judgments in Kiarie & Byndloss.

 

The Court however stated that the extent to which it was possible to give guidance in respect of other cases was necessarily limited for the following reasons:

 

  • Whether an out-of-country appeal will be effective will depend upon the circumstances of a particular case

  • The natural and appropriate forum for considering and determining issues as to whether such an appeal will be effective is the First-tier Tribunal. The issue is likely to require the consideration of evidence, and findings of fact, in relation to, amongst other things, the availability and accessibility of appropriate video link equipment to the appellant, the effectiveness of such a link for the purpose of the appellant giving evidence, and the extent to which the appellant being abroad will adversely impact on his representation and/or his ability to obtain supporting professional evidence. These were considered by the Court of Appeal to be matters which the First-tier Tribunal was used to considering, and it was considered that the tribunal would clearly be the appropriate and best forum for the determination of these matters in the vast majority of cases. The guidance given in AJ (Nigeria) would assist in focusing the minds of the parties in such hearings.

  • When parties are considering the appropriate course in these cases, they should consider the possibility of staying any judicial review proceedings (or any appeal from a determination in a judicial review claim) in favour of applying to the First-tier Tribunal for directions for the determination of these issues. That should be the default position. It is only in the event of some failure in that procedure that parties should resort to the court.

 

 

Comment

 

What the Court of Appeal has approved as the solution to the problem of anticipated future claims such as in QP(Pakistan) and Nixon & Tracy, can only surely result in a clogged-up system in the Tribunal.

 

A mock hearing here and consideration of a lead cases there via video link, is hardly sufficient at this stage to lead to a proper conclusion that the First Tier Tribunal is the most appropriate forum for considering and determining issues as to whether an appeal will be effective via video link.  Kiarie and Byndloss was only notified in the Supreme Court a year ago:  for how long have First Tier Tribunal Judges across the country  been hearing appeals en masse via video link since that decision to justify the Court of Appeal reaching the conclusions that it did?  Proper guidance to deal with the current problem should have been set out by the Court of Appeal: otherwise we are likely to see the year out with the Court of Appeal  deciding upon or evading the same issue time and time again.  Nixon and Tracy were only notified 5months ago and in between there has already  been  two Upper Tribunal cases,  AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC) (28 February 2018) and   Watson, R (on the application of) v Secretary of State for the Home Department & Anor (Extant appeal: s94B challenge: forum) [2018] UKUT 165 (IAC) (5 April 2018) seeking to deal with similar issues.  QR(Pakistan) is now yet another Court of Appeal case following Nixon and Tracy.

 

It was one thing to hear  bail hearings via video link for applicants detained in UK removal centres and quite another to hear full deportation appeals via video link for anMikko Paasi appeal which might take 2hours or more to be heard whilst the Applicant is abroad. The time might be considerately longer where an Appellant and/or his Partner, including any other witnesses require an interpreter.

 

First Tier Tribunal Judges will need to be in a position where they are fully prepared to cross their “t”s and dot their “i”s, so as to avoid leaving their decisions open to upward challenge.

 

There will very likely need to be more effective use of Case Management Review Hearings or Pre-Hearing as opposed to mere completion of paper Reply Notices prior to the full hearing so as to  merely indicate readiness to proceed on the part of the Appellant.

 

On the other hand, practitioners seeking to represent affected Appellants subject to Section 94(B) certification need to fully and effectively prepare for such appeals: where a particular case dictates from the very start that experienced Counsel should represent the Appellant in advocacy, then let that be a real and serious continuing consideration.

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