R (Kiarie) and R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42

In the Conservative Party Conference 2013 Theresa May, then Home Secretary, announced her flagship policy to deport foreign criminals before they could appeal their deportation decisions – said appeal having to be filed from outside the UK.  The Immigration Act 2016 sought to extend this power to all arguable human rights cases.

For reasons explained in its judgment, the Supreme Court has this morning declared this power to be unlawful, which means that the Home Office cannot compel those who have made human rights claims to first leave the UK before they can appeal.

Tony Muman of 43templerow chambers, counsel for Mr Byndloss, said:

“The Court does not say anything about the merits of either of these two appeals.  That is a matter for the Immigration tribunal when it comes to hear these cases.  This judgment is all about procedural fairness and the Court has concluded that the system for dealing with appeals from abroad in human rights cases does not provide an effective right of appeal in such cases.  This is welcome news in particular to all those who were facing the grim prospect of having to leave the UK just so that they could then appeal the Home Secretary’s rejection of their human rights claims, and then to return at their own expense if they won.”

Key Points:

• The ‘deport first, appeal later’ regime was introduced in July 2014 by section 94B of the Nationality, Immigration and Asylum Act 2002 which confers a power on the Home Secretary to certify the human rights claims of individuals liable to deportation, where she is satisfied that deportation pending the outcome of an appeal would not breach human rights. The effect of such a certification is that the individual may appeal against his deportation only after removal from the UK.

• Between 28 July 2014 and 31 December 2016 1,175 certificates had been issued pursuant to section 94B. By 31 December 2016, only 72 of those individuals had filed a notice of appeal with the tribunal from abroad. As the Supreme Court noted this is probably due to the practical, financial and logistical difficulties involved. As of 13 February 2017, not one of the 72 appeals had succeeded.

• In October 2015 the Court of Appeal heard judicial review claims by Mr Kiarie and by Mr Byndloss, who had each committed crimes in the UK but who wished to appeal against deportation on grounds that it would interfere unjustifiably with their private and family lives. The Court of Appeal dismissed the claims, whilst holding the Home Secretary’s Guidance to staff to be unlawful in certain respects.

• In the time that it has taken for the case to reach the Supreme Court, the certification power has been extended by the Immigration Act 2016 to any human rights claim, irrespective of whether the individual is liable to deportation. The Supreme Court has specifically said that its judgment on section 94B will impact on the exercise of the extended power.

Manjit Gill QC of No. 5 Chambers and Tony Muman of 43 Temple Row Chambers was instructed by Sanjeev Sharma of J M Wilson Solicitors.

For any further enquiries please contact Tony Muman’s clerks on 0121 237 6035 or visit this link