QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department

A certificate under Nationality, Immigration and Asylum Act 2002, section 94 B cannot be justified merely by showing no real risk of serious irreversible harm. The decision-maker must assess whether removal pending appeal would comply with article 8 and whether an out-of-country appeal would be effective for the particular person and family, including practical access to representation, professional evidence and oral evidence. An extension of time may be granted where a material change in the law provides a compelling explanation for delay. A mandatory order returning a deportee is discretionary: deprivation of an in-country appeal strongly favours return, but there is no presumption and all relevant public and private interests must be weighed. The First-tier Tribunal is ordinarily the appropriate forum for fact-finding on appeal effectiveness.

The applicant, a Pakistani national and foreign criminal, was subject to automatic deportation after receiving a 16-month sentence. The Secretary of State refused his article 8 human rights claim and certified it under section 94 B on 25 April 2016 and again on 10 February 2017. He was removed to Pakistan on 28 February 2017. An earlier challenge to the first certificate had failed.

The applicant sought permission to appeal against the Deputy High Court Judge’s refusal, on 8 December 2017, of permission to bring judicial review. Following [2017] UKSC 42, the issues were whether the challenge to the later certificate should be admitted despite delay, whether it was arguable, and whether the applicant should immediately be returned to the United Kingdom pending judicial review. The court also considered the proper forum for assessing the effectiveness of an out-of-country appeal.

1. Disposition. The court granted permission to proceed with judicial review of the 10 February 2017 certification decision and consequential detention decisions, remitted the claim to the Administrative Court, and refused an interim mandatory order requiring the applicant’s return. Permission was refused in respect of the 25 April 2016 certificate, which had already been the subject of unsuccessful proceedings.
2. Certification under section 94 B. The approach in R (Kiarie and Byndloss) [2017] UKSC 42 applied. The Secretary of State had to consider whether removal before the appeal would comply with article 8 and whether an out-of-country appeal would remain effective for this applicant and his family. The absence of a real risk of serious irreversible harm was only an example of relevant evidence. Effectiveness was fact-specific and included practical access to legal advice, professional evidence and oral evidence.
3. Delay. The delay in challenging the February 2017 certificate was serious or significant. Applying the three-stage approach in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 and Denton v TH White Limited [2014] EWCA Civ 906, the change in law following Kiarie and Byndloss, the prompt pre-action response, and the need to obtain instructions from abroad justified an extension of time.
4. Return to the United Kingdom. The discretion to order return after removal on an unlawful certificate was wide and carried no presumption in favour of return. Deprivation of an in-country appeal was a strong factor, but had to be balanced against the apparently lawful deportation order, the absence of an outstanding stay or challenge at removal, the continuing strength of the family life, the effect on the children, the public interest in deportation and non-return, and the practical adequacy of the pending out-of-country appeal. The public interest was not confined to preventing reoffending and included, for example, the risk of absconding and the consequences of a return followed by further removal.
5. Forum. The First-tier Tribunal was the optimal forum for determining, on evidence, whether the appeal could be conducted effectively from abroad. If it concluded that physical presence was necessary, or that an effective appeal could not be conducted within a reasonable time, it should direct accordingly and adjourn the appeal. The guidance in AJ (s 94 B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC) supported that approach.

Lord Justice Singh agreed with Lord Justice Hickinbottom.

• Court of Appeal (Civil Division). On 21 June 2018, the court granted permission to proceed with judicial review of the 10 February 2017 certificate, remitted that claim to the Administrative Court, refused permission concerning the earlier certificate, and refused interim relief: [2018] EWCA Civ 1413.
• High Court, Administrative Court. Nicholas Padfield QC, sitting as a Deputy High Court Judge, refused permission on 8 December 2017. He treated the claim as out of time, considered it plainly distinguishable from Kiarie and Byndloss, and certified it as totally without merit.
• Upper Tribunal. Permission to bring judicial review of the 25 April 2016 certificate was refused on 27 June 2016 and again after oral reconsideration on 4 October 2016. Permission to appeal and interim relief were subsequently refused by Irwin LJ on 24 February 2017.