Abiodun Juba v The Secretary of State for the Home Department

An appeal certified under section 94B must be assessed by reference to whether removal has caused an actual impediment to obtaining legal representation, giving instructions or receiving advice. The tribunal must distinguish such an impediment from the inconvenience inherent in conducting an appeal from abroad. Where the position is unclear, it may determine that question after hearing the evidence, but must not assume that a smooth hearing proves the absence of an impediment.

For deportation appeals, factors relevant to the statutory exceptions may also be considered collectively under section 117C(6) of the Nationality, Immigration and Asylum Act 2002. A settled migrant’s early arrival and long residence remain material to proportionality. Adverse credibility findings and the fact that the person was not born in the United Kingdom do not, without more, remove the relevance of the Maslov principle.

The appellant, a Nigerian national who arrived in the United Kingdom as a young child and later obtained indefinite leave to remain, was deported following conviction for child abduction. His human-rights appeal was certified under section 94B of the Nationality, Immigration and Asylum Act 2002, so that it was pursued from Nigeria.

An earlier First-tier Tribunal dismissal was set aside in the same litigation. At the rehearing, the appellant gave evidence by video link from Lagos. The First-tier Tribunal found that the appeal had been effective, rejected material parts of his evidence about reintegration in Nigeria, and dismissed his Article 8 claim.

On this further appeal, the Upper Tribunal considered whether the appellant’s removal had prevented effective access to his lawyers, whether the credibility findings were lawful, and whether the proportionality assessment under section 117C(6) had wrongly excluded the relevance of his childhood residence and the Maslov principle.

1. The appeal was allowed in part. The First-tier Tribunal made no material error in finding that the appellant had been able to obtain representation, give instructions and receive advice from his United Kingdom lawyers. Its conclusion was fact-specific. Although communications from Nigeria were difficult and suboptimal, the detailed evidence and extensive preparation justified the finding that there had been no actual impediment to justice.

2. Section 94B does not diminish the common-law requirement of unimpeded access to justice. The first question is whether removal has deprived the person of effective access to legal advice and representation, rather than whether communication from abroad has been less convenient. Where it is clear before a hearing that lawyers cannot mount an effective case because the appellant is abroad, it would be wrong to proceed. Where that is not clear, the tribunal may decide the question after the hearing, while remaining alert to impediments which may emerge during it.

3. The challenges to the First-tier Tribunal’s credibility findings and its assessment of support and reintegration in Nigeria failed. Those factual findings were preserved.

4. It was unnecessary to read down section 117C(4) to avoid alleged discrimination contrary to Article 14 of the European Convention on Human Rights. Matters concerning early arrival, long residence and integration may instead be weighed collectively in the more nuanced proportionality exercise required by section 117C(6).

5. The First-tier Tribunal nevertheless erred in treating the appellant’s place of birth and adverse credibility findings as excluding the relevance of Maslov v Austria [2009] INLR 47. Those matters may affect weight, but do not disapply the principle unless they negate its factual basis. The error could have affected the Article 8 balance. The First-tier Tribunal decision was set aside only as to the section 117C(6) proportionality assessment. The Upper Tribunal retained the remaking.

• Upper Tribunal (Immigration and Asylum Chamber): The appeal was allowed in part. The First-tier Tribunal decision was set aside only in respect of the Article 8 proportionality exercise under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.
• First-tier Tribunal: At the rehearing, it found that the out-of-country appeal had been effective and dismissed the appellant’s Article 8 appeal.
• Earlier Upper Tribunal stage: An earlier First-tier Tribunal dismissal was set aside in the same litigation because it had not assessed whether the appeal could be determined fairly while the appellant was outside the United Kingdom.