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

In a challenge to the maintenance of a certificate under Nationality, Immigration and Asylum Act 2002, section 94B, procedural compliance with Article 8 must be assessed by reference to the State’s process as a whole. The Secretary of State’s conduct is not examined in isolation where the person has access to a tribunal able to ensure an effective appeal and Article 8 compliance.

Section 55 of the Borders, Citizenship and Immigration Act 2009 does not generally require separate inquiries into every affected child. Further inquiry is required only where unusual circumstances make the available representations insufficient. During an appeal under section 12 of the Tribunals, Courts and Enforcement Act 2007, section 25 empowers the Upper Tribunal to direct return to the United Kingdom where that procedural step is incidental to re-making an effective appeal.

The applicant, a foreign criminal, was removed to Jamaica after his human-rights claim was certified under section 94B. His statutory appeal was initially heard by video link. The Upper Tribunal later set aside the First-tier Tribunal’s decision because his presence in the United Kingdom was necessary to obtain evidence concerning his children, and ordered his return under section 25 of the Tribunals, Courts and Enforcement Act 2007.

After his return, the Upper Tribunal re-made and dismissed his appeal against deportation. This judicial-review claim challenged the continued maintenance of the section 94B certificate, alleging procedural and substantive breaches of Article 8 and a failure to comply with section 55 of the Borders, Citizenship and Immigration Act 2009. It also challenged the Upper Tribunal’s power to make the return order.

1. The judicial-review application was dismissed. The applicant’s removal was lawful and the Secretary of State did not act unlawfully by maintaining the section 94B certificate until the Upper Tribunal directed otherwise.

2. Article 8 procedural compliance had to be assessed by reference to the United Kingdom’s institutions as a whole. The applicant had access throughout to the First-tier Tribunal and the Upper Tribunal, both of which could determine whether an out-of-country appeal was ineffective and could secure compliance with Article 8. He could have sought an AJ-style direction before the substantive hearing, and any refusal by the First-tier Tribunal was amenable to judicial review.

3. The later finding that the First-tier Tribunal had erred did not retrospectively establish a legal failing by the Secretary of State. The decisive obstacle to obtaining a social-work report was the children’s mother’s later refusal to cooperate. That obstacle was not apparent at removal or for some time afterwards.

4. The Secretary of State had sufficiently considered the information and submissions then available about the children. Section 55 of the Borders, Citizenship and Immigration Act 2009 imposed no general obligation to make separate inquiries about an affected child. The facts disclosed no unusual circumstance requiring further inquiry, particularly during the applicant’s absence from the United Kingdom.

5. There was no substantive Article 8 breach. The lawful appellate process ultimately produced an undisturbed judicial finding that deportation would not breach section 6 of the Human Rights Act 1998. That finding left no legitimate basis for treating the interim period as a separate substantive breach.

6. The return order was within section 25 of the Tribunals, Courts and Enforcement Act 2007. It was procedural, not prerogative relief, and was incidental to the Upper Tribunal’s section 12 function of setting aside and re-making the appeal decision. Facilitating the appellant’s return was closely analogous to the express power concerning witnesses and fell within section 25(2)(c).

• Court of Appeal: permission to appeal against the Upper Tribunal’s re-made dismissal of the deportation appeal was refused by Laing LJ on 21 June 2021.
• Upper Tribunal: after directing the applicant’s return from Jamaica, the Tribunal re-made the statutory appeal decision on 24 February 2020 and dismissed the appeal.
• Upper Tribunal: the present judicial-review proceedings had previously been stayed in R (on the application of Watson) v Secretary of State for the Home Department and First-tier Tribunal, [2018] UKUT 00165 (IAC). The stay was later lifted and permission was granted for this judicial-review claim.