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

Permission to appeal should be granted where a recently introduced statutory provision raises important questions requiring authoritative and early appellate guidance. In deportation cases under section 94B, the relevant issues include both the substantive justification for removal before an appeal and whether an out-of-country appeal provides effective protection for Article 8 rights. An EU-law challenge based on the Zambrano principle requires an evidential basis that removal of the non-EU citizen may in practice lead to removal of EU-citizen family members. Where that basis is absent, permission to pursue the challenge should be refused.

The Court of Appeal considered applications for permission to appeal from decisions of the Upper Tribunal (Immigration and Asylum Chamber) concerning the newly introduced section 94B regime for deportation of foreign criminals. The proposed appeals raised the proper construction and application of section 94B(2) and (3), including substantive and procedural Article 8 issues. The Byndloss application additionally advanced arguments under EU law, relying on Ruiz Zambrano. The court treated the key grounds in Kiarie as applying also to Byndloss, subject to a factual difference concerning Byndloss’s relationship with his eight children.

1. Permission and scope. The court granted permission to appeal in both cases because section 94B raised important questions about the Secretary of State’s approach and required authoritative early guidance for tribunals and courts.
2. Article 8 issues. The arguable issues concerned the proper construction of section 94B(2) and (3), whether removal for the period needed to conduct an out-of-country appeal could be justified by disruption to an individual’s private or family life, and whether such an appeal afforded effective protection for Article 8 rights. The court noted that procedural protection is necessarily implicit in Article 8, referring to R (Gudanaviciene & Ors) v Director of Legal Aid Casework & Anor [2015] 1 WLR 2247.
3. Byndloss-specific EU grounds. Byndloss no longer argued that section 94B was itself incompatible with the ECHR or sought a declaration of incompatibility. Permission was refused for the proposed EU-law challenge based on Ruiz Zambrano v Office national de l'emploi [2012] QB 265. The court held that the papers disclosed no evidential basis for the Zambrano principle to be engaged. It was inherently implausible on the facts that removal would lead in practice to removal of EU-citizen family members.
4. Further procedure. The court directed that the eventual appeal should be informed by an authoritative account of the procedures governing out-of-country appeals, preferably agreed between the parties.

• Court of Appeal (Civil Division) [2015] EWCA Civ 678: permission to appeal granted in both applications on the section 94B and Article 8 grounds. Permission was refused for Byndloss’s proposed EU-law challenge.
• Upper Tribunal (Immigration and Asylum Chamber): decisions under appeal; citation not stated in the judgment.