JT (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

For certification under section 94 B of the Nationality, Immigration and Asylum Act 2002, the question whether removal pending an appeal would cause serious irreversible harm is distinct from whether removal would breach Article 8, although substantially the same evidence may bear on both. Judicial review of the certificate is conducted on the evidence before the Secretary of State when she decided the matter. The court may reach its own view on the substantive human-rights issue, but cannot decide the case afresh on later evidence. A genuine parental relationship with a child does not automatically establish serious irreversible harm or an Article 8 breach. An effective remedy need not invariably have automatic suspensive effect.

The applicant, a Sri Lankan national with indefinite leave to remain, was made subject to a deportation order after receiving a custodial sentence for violent disorder. The Secretary of State certified under section 94 B of the Nationality, Immigration and Asylum Act 2002 that removal pending an appeal would not breach Convention rights.

The applicant challenged the certification decision by judicial review. Upper Tribunal Judge Gill refused permission. The renewed application concerned whether the Secretary of State had conflated the statutory serious-irreversible-harm test with Article 8, whether later evidence could be considered, and whether an effective remedy required an automatic suspensive effect in the circumstances.

Lord Justice Underhill, sitting alone, refused permission to appeal.

1. Statutory and Article 8 questions. It was strongly arguable that the Secretary of State had made the error identified in R (on the application of Kiarie) v The Secretary of State for the Home Department and R (on the application of Byndloss) v The Secretary of State for the Home Department [2015] EWCA Civ 1020: treating the question whether removal would breach Article 8 as identical to whether it would cause serious irreversible harm under section 94 B(3). The questions were distinct, although substantially the same evidence could bear on both.
2. Materiality and evidence. The error was immaterial if, on the evidence before the Secretary of State, it was inevitable that she would conclude that removal pending the appeal would not breach Article 8, including the family and child-welfare considerations under section 55 of the Borders, Citizenship and Immigration Act 2009. The additional evidence later placed before the Upper Tribunal could not cure the absence of relevant evidence before the decision-maker. The court was bound by paragraph 99 of Kiarie and Byndloss. Limiting review to the evidence available at the time did not prevent the court forming its own view on the substantive human-rights issue, but it could not decide the matter afresh and usurp the Secretary of State’s statutory role. There was no evidence about the impact of separation on the child, so no evidential basis existed for an Article 8, section 55 or section 94 B(3) case.
3. Suspensive effect. The majority decision in De Souza Ribeiro v France (no. 22689/07) established that an effective remedy for an expulsion challenged on private- or family-life grounds did not necessarily require automatic suspensive effect, although an effective means of challenge remained necessary. The broader approach advanced in Judge Pinto’s concurring opinion, requiring automatic suspension where irreversible family-life damage was alleged or the case was not manifestly ill-founded, went beyond the majority’s reasoning and was not adopted. A genuine and subsisting parental relationship with a child of the relevant age did not automatically establish serious irreversible harm or an Article 8 breach.
4. Final order. The application had no arguable prospect of success. Permission was refused, leaving no obstacle to removal. The decision concerned only the lawfulness of the section 94 B certification and expressed no view on the merits or lawfulness of the separate deportation decision, which remained challengeable by an out-of-country appeal.

1. Court of Appeal (Civil Division): On the renewed application for permission to appeal, Lord Justice Underhill refused permission in [2016] EWCA Civ 641.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Gill refused permission for judicial review of the certification decision, both on the papers and at an oral hearing.