Kiarie, R (On the Application Of) v The Secretary of State for the Home Department

Certification under section 94 B of the Nationality, Immigration and Asylum Act 2002 is lawful only where the Secretary of State considers that removal pending an appeal would not breach section 6 of the Human Rights Act 1998. The serious irreversible harm criterion is an additional ground, not a substitute for that statutory condition. The decision-maker must assess both the procedural and substantive requirements of article 8, including proportionality during the interim period. An out-of-country appeal is not inherently unfair, but individual reasons for unfairness must be considered. The public interest in removing serious foreign criminals is substantial, though it is not decisive. Procedural errors may be immaterial where the lawful outcome would inevitably have been the same.

Two foreign criminals challenged certificates requiring any appeals against refusal of their article 8 human rights claims and deportation decisions to be brought from outside the United Kingdom. Mr Kiarie’s judicial review claim had been refused permission in the Upper Tribunal by Upper Tribunal Judge Kopieczek. Mr Byndloss’s claim had been refused permission in the Administrative Court by Males J. The Court of Appeal considered whether permission should have been granted and, if so, whether to determine the substantive claims itself.

The central issues were whether an out-of-country appeal would satisfy the procedural guarantees inherent in article 8, whether interim removal would be a proportionate interference with article 8 rights, and whether the Secretary of State had applied the correct statutory test.

Lord Justice Richards gave the judgment of the court, with Lord Justices Elias and McCombe agreeing.

1. Statutory test. Section 94 B of the Nationality, Immigration and Asylum Act 2002 requires the Secretary of State to consider whether removal pending an appeal would be unlawful under section 6 of the Human Rights Act 1998. The serious irreversible harm criterion in subsection (3) is not the overarching test and cannot replace subsection (2). The statutory conditions leave a discretion whether to certify.
2. Judicial review. Certification is amenable to judicial review, which is confined to the certification decision. Relevant factual findings are reviewable on ordinary Wednesbury principles, with anxious scrutiny. The court must form its own view on proportionality while giving appropriate weight to the primary decision-maker’s assessment. The procedural bar applicable where an appeal exists against a removal decision did not govern certification under section 94 B.
3. Article 8 procedure. An out-of-country appeal is less advantageous than an in-country appeal, but article 8 requires an effective and fair procedure rather than the best available procedure. The Secretary of State could rely generally on specialist immigration tribunals, which have sufficient flexibility to use written evidence, electronic communication and, where necessary, other measures to secure a fair hearing. Particular reasons why an out-of-country appeal would be ineffective must nevertheless be assessed. Such an appeal was not inherently unfair in these cases. The court applied the principles in R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622 and Lord Chancellor v Detention Action [2015] EWCA Civ 840.
4. Article 8 substance. Interim removal may interfere with private or family life and requires a proportionality assessment. The public interest in deporting serious foreign criminals carries substantial weight, although it is not a trump card and generally carries less weight for interim removal than for final deportation. Children’s best interests are a primary consideration, not a paramount or determinative factor.
5. Applications. Both original decisions were procedurally unfair because the appellants had not been given a fair opportunity to make representations about certification. Both also applied the wrong statutory test. Those errors were immaterial. In Mr Byndloss’s case, the supplementary decision corrected the legal error and lawfully maintained certification. In Mr Kiarie’s case, the court was satisfied that the result would have been the same under the correct approach.
6. Disposition. Both appeals were allowed only to the extent of granting permission to apply for judicial review. The substantive claims were reserved to the Court of Appeal and dismissed.

1. Court of Appeal (Civil Division): Allowed both appeals to the limited extent of granting permission to apply for judicial review, reserved the substantive claims, and dismissed them.
2. Upper Tribunal: Upper Tribunal Judge Kopieczek refused permission for Mr Kiarie to apply for judicial review.
3. Administrative Court: Males J refused permission for Mr Byndloss to apply for judicial review.