R v Secretary of State for the Home Department

Certification of an arguable human rights appeal for determination from abroad is lawful only if removal pending appeal would respect Convention rights. Absence of a real risk of serious irreversible harm is an example, not the governing test, and a discretion not to certify remains.

An arguable article 8 deportation appeal must remain effective in practice. Automatic suspension is not invariably required, but access to the tribunal must be fair and realistic. Certification is disproportionate where removal creates almost insurmountable financial and logistical barriers to preparing the case, presenting supporting evidence, giving live evidence and participating in the hearing.

The Home Secretary made deportation orders against Mr Kiarie and Mr Byndloss, foreign criminals with indefinite leave to remain. Each claimed that deportation would breach article 8 of the European Convention on Human Rights. Their claims were not certified as clearly unfounded, but the Home Secretary certified them under section 94B of the Nationality, Immigration and Asylum Act 2002. They could therefore appeal only after removal to Kenya and Jamaica respectively.

The High Court refused permission to seek judicial review. The Court of Appeal dismissed their challenges in [2015] EWCA Civ 1020, [2016] 1 WLR 1961. The central issue before the Supreme Court was whether the certificates were lawful, particularly whether an appeal conducted from abroad would provide the effective opportunity to challenge deportation required by article 8.

1. Disposition. The appeals were allowed unanimously and both certificates were quashed. Lord Wilson gave the majority judgment, with which Lady Hale, Lord Hodge and Lord Toulson agreed. Lord Carnwath agreed in the result on a narrower emphasis.

2. Statutory test. Section 94B of the Nationality, Immigration and Asylum Act 2002 permitted certification only where removal pending appeal would comply with Convention rights. The absence of a real risk of serious irreversible harm was merely a particular example of compliance. It was not the overarching criterion. Even where compliance was established, the Home Secretary retained a discretion not to certify.

3. Effective appeal. Article 8 required an effective opportunity to challenge an arguable deportation decision before an independent tribunal with sufficient procedural safeguards and thoroughness. Suspension of removal was not automatically required in every article 8 case. Whether it was required depended on whether the appeal would remain effective in the particular circumstances. The public interest in removing a foreign criminal before an arguable appeal could not prevail unless an appeal brought from abroad remained effective.

4. Practical effectiveness. The assessment had to be punctilious and realistic. Such appeals commonly required powerful evidence about integration, family relationships, children’s welfare, obstacles to reintegration and the risk of reoffending. In many cases an appellant needed to give live evidence and respond to the hearing as it developed. Evidence by video link might suffice, but only if it was realistically available.

   The evidence demonstrated almost insurmountable financial, technical and logistical obstacles. Appellants could have difficulty obtaining representation, communicating with advisers, securing professional evidence, hiring overseas facilities, providing equipment at the hearing centre and satisfying requirements for official supervision abroad. No Convention-compliant system ensured access to the necessary facilities at both ends. The certificates therefore obstructed effective presentation of the appeals.

5. Proportionality. The certificates potentially interfered with the appellants’ private and family lives and with their right to challenge that interference effectively. The burden fell on the Home Secretary to justify removal pending appeal. Without deciding rational connection or less intrusive means, the majority held that she had failed to establish a fair balance between the appellants’ rights and the community’s interests.

6. Judicial review. Lord Wilson further considered that ordinary Wednesbury review of the Home Secretary’s factual findings was inapt where the court had to discharge its own duty under section 6 of the Human Rights Act 1998. Where necessary, the court retained power to determine facts and receive evidence, including oral evidence. That power did not need to be exercised in these appeals.

7. Lord Carnwath. Lord Carnwath did not consider it necessary to decide that live oral evidence would generally be essential. Modern video facilities could provide an effective appeal. Certification nevertheless required the Home Secretary, on adequate information at the time, to satisfy herself that the necessary procedural mechanisms would be available. The evidence did not establish that she had done so.

1. United Kingdom Supreme Court: In [2017] UKSC 42, allowed both appeals and quashed the certificates issued under section 94B of the Nationality, Immigration and Asylum Act 2002.
2. Court of Appeal: In [2015] EWCA Civ 1020, [2016] 1 WLR 1961, dismissed the challenges and upheld the certificates. It treated the Home Secretary’s supplementary decision concerning Mr Byndloss as the operative decision.
3. High Court: Refused both appellants permission to apply for judicial review.