AJ v The Secretary of State for the Home Department

An appeal certified under section 94B of the Nationality, Immigration and Asylum Act 2002 may be fairly determined from abroad only after a fact-sensitive, sequential inquiry. The tribunal should consider legal representation and instructions, the material effect of absence on professional evidence, the need for the appellant’s live evidence, and whether video-link evidence would be satisfactory.

The first two matters should be decided before considering video facilities. The tribunal should not lightly conclude that difficulties with instructions or evidence do not prevent a fair hearing. Live evidence will often be needed, unless the respondent’s case succeeds even on the appellant’s case at its highest. If physical presence is necessary for an Article 8-compliant hearing, the tribunal should direct that fact and adjourn.

The Nigerian appellant had lived in the United Kingdom from childhood and held indefinite leave to remain. Following his conviction for child abduction and an eighteen-month sentence, the respondent made a deportation order and certified his human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002. He was deported to Nigeria before pursuing his appeal.

The First-tier Tribunal dismissed his out-of-country Article 8 appeal. It found insufficient evidence of a subsisting relationship with his daughter, remorse, risk-related evidence, or very compelling circumstances in Nigeria.

After the Supreme Court’s decision in Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42, permission to appeal was granted. The central issue was whether the First-tier Tribunal had conducted a procedurally fair appeal despite the appellant’s absence.

1. Appeal allowed. The First-tier Tribunal’s decision contained a material error of law. It was set aside and the appeal was remitted for a fresh determination.

2. Applying Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42, the Upper Tribunal held that the First-tier Tribunal should address four questions in sequence. It should consider whether removal under section 94B impaired legal representation or instructions; whether absence materially impaired necessary professional evidence; whether live evidence from the appellant was necessary; and, if so, whether video-link evidence would be satisfactory.

3. The first two questions should be resolved before the tribunal considers live evidence or video facilities. The tribunal should not readily find that difficulties concerning instructions or professional evidence do not prevent a fair hearing. Although modern communications will generally enable adequate instructions where an appellant has United Kingdom lawyers, the respondent bears the burden of showing that the certification system operates lawfully in the particular case.

4. Live evidence will be necessary in many section 94B cases. It may remain necessary even if hard-edged facts are undisputed, because the fact-finder may need to see and hear the appellant. An exception may arise where the respondent accepts the appellant’s factual case at its highest but maintains that deportation is nevertheless proportionate under Article 8.

5. On the facts, the appellant’s removal had not materially affected his representation or his ability to obtain supporting professional evidence. However, his circumstances in Nigeria were a material issue. The First-tier Tribunal heard evidence about them but did not consider whether it needed to hear from the appellant himself, or whether a video-link from Nigeria could provide a satisfactory alternative. That omission could have affected the assessment of whether his circumstances were very compelling and rendered the hearing unfair.

6. If, on remittal, the First-tier Tribunal concludes that a fair Article 8 hearing cannot occur unless the appellant is physically present in the United Kingdom, it should direct that fact and adjourn the proceedings to enable the respondent to secure his return.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on error of law, set aside the First-tier Tribunal decision, and remitted the matter for fresh determination.
• First-tier Tribunal: Dismissed the appellant’s out-of-country human rights appeal following deportation under a section 94B certificate.