Nixon & Anor, R (On the Application Of) v Secretary of State for the Home Department

Certification requiring a deportee to pursue an appeal from abroad is not automatically lawful or unlawful. The court must assess for itself whether removal before the appeal is proportionate and whether, in the circumstances of the particular case, an out-of-country appeal will effectively protect the relevant article 8 rights.

An unlawful certificate does not itself entitle a deportee to be returned to the United Kingdom. The court has a wide, fact-sensitive discretion. Unlawful deprivation of an in-country appeal is a strong starting factor in favour of return, but the practical effectiveness of an overseas appeal, the apparent lawfulness of removal, family circumstances and the public interest must all be weighed. A child’s article 8 interests will ordinarily be addressed in the parent’s appeal concerning the family unit as a whole.

These conjoined applications concerned Jamaican nationals who had been deported after their human-rights claims against deportation were certified under section 94B of the Nationality, Immigration and Asylum Act 2002. Each had been removed before the Supreme Court’s decision in Kiarie & Byndloss, [2017] UKSC 42.

Paul Nixon and his British-citizen son sought to challenge the refusal of permission for judicial review. They contended that the son required a separate article 8 remedy and that Mr Nixon should be returned so that his appeal could be pursued in country. Mr Tracey challenged refusals of permission in two judicial-review claims, including a claim based on the alleged inadequacy of an overseas appeal and a shortfall in the removal-notice policy.

The central issue was whether the post-Kiarie & Byndloss approach required relief, including return to the United Kingdom, or showed an arguable error in the decisions below.

1. The application for a mandatory return order for Mr Nixon was refused. The court accepted, for that discretionary purpose only, that his section 94B certificate was at least arguably unlawful following Kiarie & Byndloss, [2017] UKSC 42. Certification creates a potential interference with article 8 rights. The Secretary of State must justify removal before the appeal and show that the out-of-country appeal will effectively protect those rights.

   However, an unlawful certificate does not create an automatic right to return. The court’s discretion is wide and fact-sensitive. The unlawful loss of an in-country statutory appeal is a powerful starting consideration, but must be balanced with all the circumstances. Those include the apparent lawfulness of the deportation order and removal, the effect of continued absence on the appeal and family life, the practical availability of representation and evidence, the effectiveness of video-link evidence, and the public interest.

2. On the evidence, return was neither just nor proportionate. Mr Nixon had been removed under an apparently lawful deportation order after judicial refusals of a stay. There was little evidence of family contact after his imprisonment or removal. No adequate basis had been shown for a new independent social-worker report, and there was no evidence that he could not instruct lawyers or give evidence effectively by video-link. His wife and son could give live evidence in the tribunal.

3. J-Kwon Nixon had no arguable right to a separate merits appeal or discrete article 8 remedy. Applying Beoku-Betts, [2008] UKHL 39, article 8 proportionality is assessed by reference to the family unit and the effect of removal on every relevant family member. A section 82 appeal by a parent will ordinarily adequately protect the child’s interests. Exceptional cases may require further investigation, but no evidential basis showed that Mr Nixon could not present evidence concerning his son’s interests.

4. The proposed amendment raising J-Kwon’s separate claim was refused. Amendments raising the certification and damages grounds were allowed, but the application for permission to appeal on them was stayed until the final outcome of Mr Nixon’s First-tier Tribunal appeal. The tribunal was the suitable forum to determine the factual questions and the actual effectiveness of the facilities available.

5. Mr Tracey’s applications for permission to appeal were refused. The 72-hour removal-notice policy was intended to secure meaningful access to legal advice and challenge. Any shortfall was immaterial because the judge was entitled to find that Mr Tracey’s solicitors’ ability to act had not been impeded. Nor did Kiarie & Byndloss reveal a material error: the Secretary of State had considered practical arrangements for an overseas appeal, and no evidence showed that such an appeal would be ineffective in his case. Mr Tracey had also not attempted to lodge an out-of-country appeal.

• Court of Appeal (Civil Division): Determined the conjoined applications. It refused the application to return Mr Nixon, refused the proposed separate claim advanced for J-Kwon, stayed the amended Nixon permission application, and refused permission to appeal in Mr Tracey’s two appeals.
• High Court, Administrative Court: Phillips J refused Mr Nixon’s renewed application for permission to bring judicial review and refused a stay of removal. The citation is not stated in the judgment.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Jacobs refused Mr Tracey permission to bring judicial review and certified the claim totally without merit.
• High Court, Administrative Court: Roger ter Haar QC, sitting as a deputy High Court judge, dismissed Mr Tracey’s later judicial-review claim: [2017] EWHC 1327 (Admin).