ON APPEAL FROM THE UPPER TRIBUNAL
Upper Tribunal Judge Kopieczek
AND ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
The Hon Mr Justice Males
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE McCOMBE
| The Queen (on the application of Kevin Kinyanjui Kiarie)
|- and -
|The Secretary of State for the Home Department
|The Queen (on the application of Courtney Aloysius Byndloss)
|- and -
|The Secretary of State for the Home Department
Manjit Singh Gill QC, Ramby de Mello, Tony Muman and Jessica Smeaton (instructed by J.M. Wilson Solicitors LLP) for Mr Byndloss
Lord Keen of Elie QC (Advocate General for Scotland), Lisa Giovannetti QC and Susan Chan (instructed by The Government Legal Department) for the Secretary of State
Hearing dates : 23-24 September 2015
Crown Copyright ©
Lord Justice Richards :
"94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation
(1) This section applies where a human rights claim has been made by a person ('P') who is liable to deportation under –
(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) …
(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed."
That section was brought into force with effect from 28 July 2014 and was in force at the date of each of the decisions to which these proceedings relate.
i) In relation to the period from 20 October 2014, that effect was clear on the face of the version of section 92 substituted by a provision of the 2014 Act brought into force on that date: section 92(3) of the substituted version provides that "In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if – (a) the claim to which the appeal relates has been certified under … section 94B …".
ii) In relation to the period between 28 July and 20 October 2014, the period during which the original decision in each of the present cases was made, the same result was achieved by Article 4 of the Immigration Act 2014 (Commencement No.1, Transitory and Saving Provisions) Order 2014 and was thereafter maintained by Article 15 of the Immigration Act 2014 (Commencement No.3, Transitional and Savings Provisions) Order 2014.
I am appalled by the complexity of that legislative jigsaw but there is no dispute that the result is as stated.
i) The guidance indicated, in paragraphs 3.2-3.3, that the Government was seeking initially to "test" the newly acquired power and that, for the initial test phase, certification should normally only be considered in circumstances where (i) the individual was aged 18 or over at the time of the deportation decision, and (ii) the individual "does not have a parental relationship … with a dependent child or children".
ii) It was made clear in paragraphs 3.5-3.6 that the power under section 94B should be used only after it had been decided that other certification powers, including the power to certify a claim under section 94 as "clearly unfounded", were not appropriate. What this means is that certification under section 94B would fall for consideration only in cases where the relevant human rights claim was accepted to be arguable and thus to engage a right of appeal.
iii) It was also made clear in paragraph 3.5 that it would not be appropriate to use the power in section 94B to certify claims made on the basis of article 2 or article 3, since removal in circumstances where a claim under those articles was not clearly unfounded would necessarily carry with it a real risk of serious irreversible harm.
iv) The general tenor of the guidance was that in every case the relevant question when deciding whether to certify was whether removal pending any appeal would create a real risk of serious irreversible harm. For example, paragraph 1.2 stated that section 94B "allows a human rights claim to be certified … where it is considered that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return". Paragraph 3.9 stated that where all that remained in an appeals process was an article 8 claim "and there is not a real risk of serious irreversible harm, and the person is otherwise removable (e.g. a travel document is now available), it is likely that certification will be appropriate". The guidance contained nothing to direct the decision-maker to consider whether, apart from real risk of serious irreversible harm, removal pending determination of an appeal might be unlawful under section 6 of the Human Rights Act, in particular by reason of a breach of the person's rights under article 8 of the Convention.
"3.2 The Government's policy is that the deportation process should be as efficient and effective as possible. Case owners should therefore seek to apply section 94B certification in all applicable cases where doing so would not result in serious irreversible harm.
3.5 … In order for certification not to be possible, there must be a real risk of harm that would be both serious and irreversible.
3.6 By way of example, in the following scenarios where a person is deported before their appeal is determined it is unlikely, in the absence of additional factors, that there would be a real risk of serious irreversible harm while an out-of-country appeal is pursued ….
3.7 Although the serious irreversible harm test sets a high threshold, there may be cases where that test is met. Such cases are likely to be rare, but case owners must consider every case on its individual merits to assess the likely effect of a non-suspensive right of appeal …."
The decision in respect of Mr Kiarie
"45. Consideration has been given to whether your Article 8 claim should be certified under section 94B …. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. The Secretary of State does not consider that such a risk exists. As outlined above, you do not meet any of the exceptions to deportation and there are no very compelling circumstances present in your case.
46. It is acknowledged that your parents and siblings are in the United Kingdom. However, any relationships you may have with family members can be continued through modern means of communication upon your return to Kenya. There is nothing to suggest that you would be unable to obtain employment in Kenya. You are 20 years old and have no serious medical conditions. Furthermore, any skills/qualifications you have gained in the United Kingdom can only serve to assist you in finding employment in Kenya and therefore it is considered that there would be no communication barriers upon your return.
47. For all the above reasons, it is not accepted that you face a real risk of serious irreversible harm if removed to Kenya while you pursue your appeal against deportation, should you choose to exercise that right.. Therefore, it has been decided to certify your Article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom."
The decisions in respect of Mr Byndloss
"Consideration has been given to whether your Article 8 claim should be certified under section 94B …. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. The Secretary of State does not consider that such a risk exists. Therefore, it has been decided to certify your Article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom" (emphasis in the original).
"This letter is supplementary to the decision that section 32(5) of the UK Borders Act applies, issued on 6 October 2014.
Material from the letter of 6 October 2014 has been consolidated into this letter so that the Secretary of State's complete reasoning is contained in one document. However, a copy of the letter of 6 October 2014 is also enclosed for your reference."
"Whilst it is accepted that you have established Article 8 rights in the UK, with which your deportation constitutes an interference, it is considered that the decision to deport you is a proportionate one, for the reasons set out above".
"From 20 October 2014, all foreign criminals who were notified of a decision to deport them from the UK were warned that in certain circumstances any appeal against an adverse decision could only be brought after they have left the UK. They were given the opportunity to make representations about why they should not be expected to appeal from abroad. The letter to you of 6 October 2014 was issued before that change in process and as such you have never been asked to submit such reasons in your case. It has always been open to you however, to make such submissions at any time in the 10 months since you were served with the decision to deport you. It is noted that you have been represented throughout this period.
In your witness statement of 5 November 2014 at paragraphs 14 to 16, you set out the reasons why you should not be expected to appeal from abroad."
Those reasons are then summarised and considered. They relate essentially to alleged difficulties in conducting an appeal from overseas. The letter concludes that the matters referred to would not constitute a breach of the procedural guarantees provided by article 8.
"Consideration has been given, on the basis of all information currently available, to whether the decision to certify your Article 8 claim under section 94B of the 2002 Act should be maintained. The Secretary of State has considered whether your removal pending the outcome of any appeal you may bring would be unlawful under section 6 of the Human Rights Act 1998 and whether there would be a real risk of serious irreversible harm to you or members of your immediate family before any appeal you may bring is finally concluded.
The Secretary of State does not consider that your removal pending the outcome of any appeal would be unlawful under section 6 of the Human Rights Act 1998 and considers that there is no real risk of serious irreversible harm in your case. It is considered that your removal pending your appeal would be proportionate in all the circumstances. As explained in the decision dated 6 October 2014 and in this letter, you lived in Jamaica until you were 21 years old and there is no evidence that you would be unable to reintegrate or pursue a private life there. You speak English which is an official language of Jamaica and as such you will be able to communicate with others on your return. You are 35 years old with no apparent health concerns and you were living an independent life prior to imprisonment.
The evidence you have provided does not demonstrate that it would be unlawful under section 6 of the Human Rights Act 1998 in respect of the Article 8 or other rights of your wife, your former partners or any of your children if you were removed pending the final outcome of any appeal you may bring. As explained in the decision dated 6 October 2014, it is not accepted that any of your children are dependent on you for their ability to reside in the UK, as they are British citizens and remain in the care of their respective mothers. As you were in prison and immigration detention from 10 May 2013 to 15 April 2015, in the event of your deportation the status quo in respect of your children would be maintained and there would be no disruption either to the effectiveness of their care or their day-to-day lives: as far as your children are concerned, their daily lives would continue in the ways to which they are accustomed – i.e. in the care of their respective mothers who play the parenting role in each of the children's daily lives. It is therefore concluded that you have made no meaningful, parental contribution to your children's daily lives and as such, your removal will not be unlawful under section 6 of the Human Rights Act in respect of the article 8 or other rights of your wife, former partners or children. On this basis, it is not accepted that your removal would cause harm that would meet a minimum level of severity, or would have a permanent or long lasting detrimental impact upon any of your claimed family members. Full consideration has been given to the Secretary of State's duty to promote and safeguard the welfare of children under s55 of the Borders, Citizenship and Immigration Act 2009. It is considered that your children's best interests would be served by them remaining in the UK in the care of their respective mothers in order that they should continue to pursue the lives that they are well accustomed to. Given that you play no meaningful parental role in any of the children's daily lives, it is not considered that the Secretary of State's statutory duty under s55 would be breached by not affording you an in-country right of appeal against the decision to refuse your Article 8 claim.
Therefore, the decision of 6 October 2014 to certify your Article 8 claim under section 94B is maintained and, as previously explained, any appeal you may bring can only be heard once you have left the UK"
The refusal of permission in the court/tribunal below
"7. In the circumstances, I am satisfied that the respondent was unarguably entitled to certify the human rights claim under Section 94B of the 2002 Act, concluding that there would not be a risk of serious irreversible harm if removed, pending his appeal against the decision to make a deportation order. I am not satisfied that there is anything in the particular circumstances of his case which arguably reveals that he would not be able fully to participate in the appeal with the assistance of his family in the UK. The arguability of the underlying Article 8 claim does not affect the lawfulness of the respondent's decision."
Amenability to judicial review
The correct general approach to section 94B in the context of article 8
"54. I draw particular attention to the provision contained in section 33(7) [of the UK Borders Act 2007]: 'section 32(4) applies despite the application of Exception 1 …', that is to say, a foreign criminal's deportation remains conducive to the public good notwithstanding his successful reliance on article 8. I said at para 46 above that while the authorities demonstrate that there is no rule of exceptionality for article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under article 8 if it is to prevail. The pressing nature of the public interest here is vividly informed by the fact that by Parliament's express declaration the public interest is injured if the criminal's deportation is not effected. Such a result could in my judgment only be justified by a very strong claim indeed."
"42. … [In] approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase 'exceptional circumstances' is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals."
Whether an out of country appeals meets the procedural requirements of article 8
"46. The general principles established by the European Court of Human Rights are now clear. Inevitably, they are derived from cases in which the question was whether there was a breach of article 6.1 in proceedings which had already taken place. We accept the following summary of the relevant case law given by Mr Drabble: (i) the Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts …; (ii) the question is whether the applicant's appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily …; (iii) it is relevant whether the proceedings taken as a whole were fair …; (iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through 'in the teeth of all the difficulties' does not necessarily mean that the procedure was fair …; and (v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent …."
At paragraph 56 the court described the critical question as being "whether an unrepresented litigant is able to present his case effectively and without obvious unfairness".
"70. It is true that the test for article 8 as it is stated in the Strasbourg jurisprudence (whether those affected have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests) differs from the test for article 6.1 (whether there has been effective access to court). The article 8 test is broader than the article 6.1 test, but in practice we doubt whether there is any real difference between the two formulations in the context with which we are concerned. There is nothing in the Strasbourg jurisprudence to which our attention has been drawn which suggests that the European Court of Human Rights considers that there is any such difference. In practice, the court's analysis of the facts in the case law does not seem to differ as between article 6.1 and article 8. This is not surprising. The focus of article 6.1 is to ensure a fair determination of civil rights and obligations by an independent and impartial tribunal. Article 8 does not dictate the form of the decision-making process that the state must put in place. But the focus of the procedural aspect of article 8 is to ensure the effective protection of an individual's article 8 rights. To summarise, in determining what constitutes effective access to the tribunal (article 6.1) and what constitutes sufficient involvement in the decision-making process (article 8), for present purposes the standards are in practice the same.
71. As Ms Kaufmann submits, the significance of the cases lies not in their particular facts, but in the principles they establish, viz (i) decision-making processes by which article 8 rights are determined must be fair; (ii) fairness requires that individuals are involved in the decision-making process, viewed as a whole, to a degree that is sufficient to provide them with the requisite protection of their interests: this means that procedures for asserting or defending rights must be effectively accessible; and (iii) effective access may require the state to fund legal representation."
"… The fact is that, especially but not only where credibility is in issue, the pursuit of an appeal from outside the United Kingdom has a degree of unreality about it. Such appeals have been known to succeed, but in the rarest of cases. The reason why the Home Office is insistent on removal pending appeal wherever the law permits it is that in the great majority of cases it is the end of the appeal."
Reference is also made to the observations of Collins J in R (MK) Tunisia)) v Secretary of State for the Home Department  EWHC 2363 (Admin), as endorsed by the Court of Appeal in R (E (Russia))  EWCA Civ 357,  1 WLR 3198, where Sullivan LJ said this at paragraph 43 of his judgment:
"I endorse the view expressed by Collins J (a former President of the Immigration and Asylum Tribunal) in MK at first instance … that common sense indicates that a claimant who has to pursue an appeal while he is out of the country faces considerable disadvantages, particularly in the context of an appeal to SIAC …. "
Mr Drabble acknowledged that the particular features of an appeal to SIAC do not apply in this case but he submitted that Sullivan LJ's general observation remains valid.
"It is sufficient for me to say that, if (contrary to my view) the rules themselves are procedurally fair and enable an appellant to present his appeal fairly and justice to be achieved, then I do not consider that the fact that an appellant is in the fast track system as a result of the decision of the SSHD is relevant. Ex hypothesi, the decision of the SSHD has not impeded the ability of the appellant to present his case fairly and the FTT to decide the appeal justly."
That reasoning can be applied with equal force to an out of country appeal in a deportation case.
The lawfulness of the certification decision in respect of Mr Kiarie
i) First, Mr Kiarie was not informed in advance that consideration was being given to the certification of his claim under section 94B and he was not given a fair opportunity to make representations on the subject: he could not reasonably have been expected to make such representations in the absence of notice, given that the section was not even in force at the date when he was notified of the intention to make a deportation order against him. The course adopted was procedurally unfair.
ii) Secondly, the decision to certify, in line with the guidance, focused erroneously on the question of serious irreversible harm and failed to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Kiarie's procedural or substantive rights under article 8. Thus, the decision was based on a legal misdirection.
The lawfulness of the certification decisions in respect of Mr Byndloss
"… whilst you are the biological father of at least seven children, you have no relationship with any of them whereby you provide a consistent or parental presence in their daily lives. There is nothing to demonstrate that you make any meaningful contribution in terms of practical, financial or emotional support and nothing to show that you play any part in taking decisions about the children's daily lives. The children's day to day needs are and will continue to be provided by their respective mothers."
In relation to T, to whose position Mr Gill drew particular attention, the letter points out that Mr Byndloss had not provided documentary evidence of her date of birth, and his representative had stated that a birth certificate had not been provided as Mr Byndloss was not listed as the father. There were letters from the mother stating that he was the father but there was no evidence to demonstrate that he was the biological father. He had not demonstrated that he was living with the mother or T as a family either before or at the point of his imprisonment. He had provided no evidence of any meaningful parental involvement in T's life. In any event, it was not accepted that it would be unduly harsh for T to live in Jamaica.
"In considering the best interests of your children, the Home Office has considered the following:
Is there a genuine and subsisting parental relationship: for the reasons set out in the sections above which consider your relationship with your individual children, the Home Office does not accept that you have a genuine and subsisting parental relationship with any of your children. Specifically, you have not demonstrated that you had such a relationship prior to your imprisonment, that such a relationship was created or maintained during your imprisonment and no evidence has been provided as to your relationship with your children since your release.
Are the children in question British Citizens or have they lived in the UK for a continuous period of 7 years: each child (apart from [T], whose nationality has not been verified) is a British citizen and has an unqualified right to remain in the United Kingdom.
Would it be unduly harsh to expect the British Citizen children to leave the UK: in the event of your deportation, it is considered that the best interests of your children would be served by remaining in the UK in the care of their respective mothers. This would ensure the continuance of the daily family life that each child is well accustomed to, given that you do not fulfil a parenting role in their daily lives and there is no genuine and subsisting parental relationship between you and your children. However, it is also accepted that the question of whether any or all of the children should re-locate to Jamaica to be with you, with or without their respective mothers, is a matter for you and those mothers to decide. In the event that a decision was taken to relocate, it is noted that Jamaica has a functioning health and education system, such that the children's welfare could be sustained, with the support of their parents."
Lord Justice Elias :
Lord Justice McCombe :