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

A judicial review challenge to an out-of-country appeal certification is ordinarily premature where the First-tier Tribunal can give directions enabling the appellant to prepare for and participate effectively in the appeal. The assessment is fact-sensitive and must reflect current technological and practical conditions.

Earlier authority concerning remote appeals must be understood in its factual and technological context. A Turkish worker’s rights under the Ankara Agreement and Decision 1/80 do not create a suspensory in-country appeal where the relevant instruments provide only for legal redress in the Member State. Judicial review claims must also be filed promptly and, in any event, within three months of the grounds first arising.

The claimants, Yusuf Arman and GY, were Turkish nationals deported from the United Kingdom after criminal convictions. Their human rights claims had been certified under section 94B of the Nationality, Immigration and Asylum Act 2002, with the result that their appeals against deportation had to be pursued from Turkey.

Both sought permission to bring judicial review proceedings. They argued that out-of-country appeals breached Article 8 of the ECHR and that the Ankara Agreement, its Additional Protocol and Decision 1/80 conferred a suspensory in-country right of appeal. GY also relied on the GDPR. The court considered whether the challenges were arguable, whether an adequate alternative remedy existed before the First-tier Tribunal, and whether the claims were brought in time.

1. Permission refused. The applications were not arguable and were in any event brought several years out of time.
2. The court accepted the Supreme Court’s decision in R (on the applications of) Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42 as correct when decided. At that time, technological and practical difficulties could make an out-of-country appeal incompatible with Article 8. Conditions had materially changed by 2021. Remote hearings, electronic bundles and ordinary access to laptops and 3G or better connectivity meant that, in almost all cases, an overseas appellant could reasonably prepare for and participate in an appeal.
3. The relevant question was whether the appellant could realistically and reasonably communicate with legal representatives and participate in the First-tier Tribunal appeal. Directions could require the Home Secretary to meet genuine costs of data or equipment where necessary. If access remained inadequate, the Tribunal could determine that the appeal could not lawfully proceed, with judicial review then available if the Home Secretary failed to respond.
4. The Ankara Agreement and its ancillary instruments did not confer a suspensory in-country appeal. Article 41(1) of the Additional Protocol concerned restrictions on establishment and services, not remedies. The provisions relied on in Directive 2003/109/EC required legal redress in the Member State, but did not require the appellant to remain there pending appeal. The interpretation advanced would insert words into the instruments and would place Turkish workers in a better position than EEA nationals, contrary to Article 59 of the Additional Protocol.
5. The GDPR argument was misconceived. A video conference between persons in the EU and Turkey was not, merely for that reason, unlawful. Johnson v Secretary of State for the Home Department [2020] EWCA Civ 1032 was binding and materially indistinguishable.
6. Under CPR 54.5(1), time began when the alleged unlawfulness occurred, namely when each section 94B certificate was made. Continuing effects did not restart the limitation period. No adequate explanation for the delay was established.