R (on the application of Kiarie) v Secretary of State for the Home Department; R (on the application of Byndloss) v Secretary of State for the Home Department

The Supreme Court allowed the appeals and quashed the Home Secretary's certificates issued under section 94B of the Nationality, Immigration and Asylum Act 2002. The court held that the Home Secretary must satisfy herself, before certifying, that removal pending appeal would not be unlawful under section 6 of the Human Rights Act 1998 and that an out-of-country appeal would remain effective under article 8 of the European Convention on Human Rights.

The certificates were unlawful because the Home Secretary had not demonstrated that the appellants would have a realistic opportunity to participate effectively in their article 8 appeals if deported in advance. In particular the court emphasised the importance, in many foreign‑criminal deportation appeals, of an opportunity for the appellant to give live evidence and the absence of adequate practical arrangements (cost, equipment, logistical and procedural safeguards) for oral evidence by video link rendered the out‑of‑country appeals ineffective in these cases.

Background and parties:

• The appeals concerned two appellants, Kiarie (Kenyan national) and Byndloss (Jamaican national), both long resident in the United Kingdom with indefinite leave to remain, and both convicted of serious drug offences. The Home Secretary made deportation orders and certified their article 8 human rights claims under section 94B of the Nationality, Immigration and Asylum Act 2002 so that any appeal could be brought only from abroad.

Nature of the application:

• Each appellant sought judicial review of the section 94B certificate, contending that removal in advance of their appeals would breach their rights under article 8 ECHR by making their appeals ineffective.

Procedural history:

• The Court of Appeal dismissed the judicial review challenges ([2015] EWCA Civ 1020). The matters were then brought to the Supreme Court, which heard argument on whether the certificates were lawful.

Issues framed by the court:

• Whether certification under section 94B was lawful where it prevented in‑country appeals;
• whether the Home Secretary had to be satisfied, under section 6 of the Human Rights Act 1998, that removal pending appeal would not breach Convention rights;
• whether an out‑of‑country appeal in practice could be effective (procedural guarantees, opportunity to give live evidence, accessibility of legal representation and technical/logistical arrangements for video evidence); and
• how the court should treat factual findings of the Home Secretary when reviewing compatibility with Convention rights.

Court’s reasoning and conclusion:

• The court held that the Secretary of State must consider and be satisfied, on adequate information, that removal pending appeal would not be unlawful under section 6 HRA. The effect of certification on the effectiveness of the article 8 appeal is a central consideration.
• The court explained that many foreign‑criminal article 8 appeals require powerful factual material and, in many cases, live oral evidence from the appellant (for example to demonstrate remorse, rehabilitation, or to explain the quality of family ties). Removal in advance of the hearing tends to weaken or eradicate evidence of integration and family life and often makes it much harder to assemble corroborative professional evidence.
• Although evidence may be given by video link, the court found that, in practice, the financial, logistical and technical obstacles (including inadequate tribunal IT, costs of equipment and facilities abroad, problems of compatibility and timing, and difficulties obtaining supervised facilities abroad) meant that the Home Secretary had not shown that out‑of‑country appeals would be effectively accessible in these cases.
• Accordingly the certificates were disproportionate as a matter of article 8: the Home Secretary failed to establish that removal pending appeal struck a fair balance between public interests in deportation and the appellants’ article 8 rights. The appeals were allowed and the certificates quashed.

Wider observations:

• The court noted the strong public interest in deporting foreign criminals but explained that this does not negate the separate public interest in ensuring that an appeal provided by statute is effective; certification must be compatible with article 8’s requirement of an effective remedy. The court suggested that practical arrangements for out‑of‑country appeals (including provision of suitable facilities and reasonable means to allow live evidence) need to be in place if section 94B is to be lawfully applied.

Appeal allowed. The Supreme Court quashed the Home Secretary's certificates under section 94B because she had not satisfied herself, on adequate information, that removal pending appeal would not be unlawful under section 6 of the Human Rights Act 1998 and had failed to show that out‑of‑country appeals would be effective for the appellants under article 8 ECHR. The absence of realistic arrangements to enable appellants to give live evidence (or otherwise to participate effectively) meant the interference was not proportionate.

Permission for judicial review was initially refused in the High Court (no neutral citation provided in the judgment). The Court of Appeal dismissed the challenges: [2015] EWCA Civ 1020. The appellants appealed to the Supreme Court, which allowed the appeals: [2017] UKSC 42.