Wellington Paul Watson, R (on the application of) v The Secretary of State for the Home Department & Anor

Where a person has been removed following certification under section 94B, the First-tier Tribunal is normally the proper forum to decide whether the pending out-of-country appeal can be conducted effectively and fairly. The assessment is fact-sensitive. It requires consideration of legal representation and instructions, professional evidence, the need for oral evidence, and the adequacy of video-link facilities.

The First-tier Tribunal has a continuing duty to monitor fairness under Article 8. If it concludes that a fair hearing cannot proceed without return to the United Kingdom, it should stay the appeal and give reasons. A judicial-review challenge to the Secretary of State’s refusal to return the appellant can then be pursued. If the First-tier Tribunal finds the appeal compliant, that finding may be challenged by appeal to the Upper Tribunal.

The applicant, a Jamaican national subject to a deportation order, had his Article 8 human-rights claim certified under section 94B of the Nationality, Immigration and Asylum Act 2002. He was removed to Jamaica in September 2016 and brought an out-of-country appeal to the First-tier Tribunal against the refusal of his human-rights claim.

After the Supreme Court’s decision in Kiarie v SSHD; R (Byndloss) v SSHD [2017] UKSC 42, he sought judicial review of the Secretary of State’s continued maintenance of the certificate and refusal to facilitate his return. He also challenged the First-tier Tribunal’s refusal to stay his appeal pending the judicial-review proceedings.

The central issue was whether the Upper Tribunal should now determine whether the out-of-country appeal was procedurally compliant with Article 8, or leave that fact-sensitive question to the First-tier Tribunal while the appeal remained extant.

1. The challenge to the Secretary of State’s decisions was stayed. The challenge to the First-tier Tribunal’s refusal to stay the appeal was refused. The applicant could apply to lift the stay within 21 days of the ultimate outcome of his tribunal appeal.

2. An appeal created by Parliament must be effective, but Article 8 and common-law fairness do not require the best possible procedure. Whether an out-of-country appeal meets the essential requirements of effectiveness and fairness is fact-sensitive.

3. In a post-removal section 94B case with an extant appeal, the First-tier Tribunal is ordinarily the appropriate forum to determine whether the appeal can lawfully proceed without the appellant’s physical presence. It has specialist experience, can determine factual disputes, and can assess the facilities actually available rather than a hypothetical system.

4. The First-tier Tribunal must apply the staged approach in AJ (s94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC). It should consider the appellant’s ability to obtain representation and give instructions, secure necessary professional evidence, give oral evidence, and participate satisfactorily by video link. Its duty is continuing because the practical conditions of an appeal may change.

5. On the evidence then available, the difficulties in taking instructions from Jamaica were inconvenient but did not prevent effective legal assistance. There was no evidence that the relevant professional evidence could not be obtained, or that adequate video-link arrangements could not be made for the substantive hearing. The grounds alleging procedural unfairness were therefore weak, but were stayed so that the position could be revisited in light of how the appeal proceeded.

6. If the First-tier Tribunal finds that a fair and effective appeal cannot proceed unless the appellant returns, it should stay the proceedings and give written reasons. The Secretary of State is expected promptly to remedy that position; if she does not, judicial review may be used to challenge the refusal to facilitate return. Conversely, if the First-tier Tribunal finds the process Article 8 compliant, an adverse substantive decision may be challenged on appeal to the Upper Tribunal on that basis.

7. The applicant’s evidence did not make it arguable that his continued exclusion pending the appeal was a disproportionate interference with substantive Article 8 rights. That aspect of the judicial-review application was nevertheless also stayed as a practical consequence of the stay on the procedural grounds.

• Upper Tribunal (Immigration and Asylum Chamber): On this application for permission to bring judicial review proceedings, the Tribunal stayed the challenge to the Secretary of State’s maintenance of certification and refusal to facilitate return, and refused permission to challenge the First-tier Tribunal’s refusal to stay the appeal.
• First-tier Tribunal (Immigration and Asylum Chamber): The applicant had an extant out-of-country appeal against refusal of his human-rights claim. The First-tier Tribunal had refused to stay that appeal on 15 January 2018.