England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
NICHOLAS PADFIELD QC SITTING AS A DEPUTY HIGH COURT JUDGE
Claim No CO/4355/2017

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/18

Lord Justice Hickinbottom:

Introduction

1. On 28 February 2017, the Applicant was deported from the United Kingdom ("the UK") to Pakistan.
2. He now seeks permission to appeal against the Order of Nicholas Padfield QC sitting as a Deputy High Court Judge dated 8 December 2017, in which he refused, as totally without merit, permission to proceed with a judicial review of the "continuing failure and refusal" of the Secretary of State (i) to accept that his decisions of 25 April 2016 and 10 February 2017 to certify the Applicant's human rights claims under section 94B of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") were unlawful, and (ii) to return the Applicant to the UK to pursue an in-country right of appeal against the refusal of his claim for leave to remain on human rights grounds. In the proposed judicial review, the Applicant also sought relief in respect of two periods of allegedly unlawful detention, a claim linked to the certification decisions.
3. In addition, before this court, in an application dated 9 March 2018, the Applicant seeks interim relief in the form of a mandatory order requiring the Secretary of State immediately to return the Applicant to the UK.
4. Before us, Manjit Gill QC appeared for the Applicant, and Lisa Giovannetti QC for the Secretary of State. Their respective submissions were most helpful.

The Legislative Background

5. Section 3(5)(a) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good.
6. Section 32 of the UK Borders Act 2007 makes provision for "automatic deportation": subject to section 33, the Secretary of State must make a deportation order in respect of a "foreign criminal", i.e. a person who is not a British citizen, who has been convicted in the UK of an offence, and who has been sentenced to a period of imprisonment of at least 12 months for any offence or for a term of any length for a specified offence. Section 33 provides for a number of exceptions, including where removal would breach a person's rights under the European Convention on Human Rights ("the ECHR") (section 33(2)(a)).
7. Section 82(1)(b) of the 2002 Act provides a person with a right to appeal to the First-tier Tribunal from a decision to refuse a human rights claim made by that person. Section 92 of that Act determines the place from which such an appeal may be brought or continued. Generally, by section 92(3), it must be brought and may be continued in the UK ("an in-country appeal"). However, section 92(3)(a) and (6) provide that, where the Secretary of State has certified a claim under specified provisions, including section 94(1) and section 94B, then the claim must be brought from outside the UK or, if brought inside, continued outside ("an out-of-country appeal"). References in this judgment to "section 94(1)" and "section 94B" are to those sections of the 2002 Act.
8. Under section 94(1), the Secretary of State may certify a human rights claim if he considers it is "clearly unfounded". Under section 94B, the Secretary of State may certify a human rights claim if he considers that, despite the appeals process not having begun or not having been exhausted, removing the particular individual from the UK would not be unlawful under section 6 of the Human Rights Act 1998, i.e. not in breach of the ECHR. Section 94B(2) provides that the grounds upon which the Secretary of State may certify a claim include where the applicant would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country to which it is proposed to remove him.
9. Thus, certification under section 94B effectively removes the right to an in-country right of appeal in respect of the refusal of a claim that removal from the UK would be a breach of article 8 of the ECHR, leaving the applicant to pursue any appeal out-of-country.
10. In R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42; [2017] 1 WLR 2380 ("Kiarie & Byndloss"), the Supreme Court considered the effect of such a certificate in the context of a proposed deportation. The court emphasised that a section 94B certificate could only be made if the Secretary of State considers that removing the applicant will not breach article 8 despite an appeal not having runs its full course, and section 94B(2) (the absence of "a real risk of serious irreversible harm") was only an example of the ways in which that might be evidenced. More generally, the court held that:

i) A proposed deportation engages, and gives rise to a potential breach of, article 8.

ii) As an inherent aspect of the article itself, a proposed deportee is entitled to an effective procedure for appealing against a threatened breach of article 8.

iii) Oral evidence from the appellant will often be necessary for a proper article 8 assessment; and an out-of-country appellant faces considerable practical difficulties in giving such evidence (e.g.) by video-link, as well as in obtaining supporting professional evidence and effectively obtaining, instructing and taking advice from legal representatives.

iv) Given the potential interference with the proposed deportee's article 8 rights, once the issue is in play, the burden is upon the Secretary of State to establish that that interference is justified and proportionate.

11. Mr Gill submitted that the Supreme Court held that "out-of-country appeals in section 94B cases cannot take place consistently with article 8" (see paragraph 51 of the Grounds of Appeal). However, that is not the case. The court held that the public interest in removing a foreign criminal prior to his appeal being heard to avoid the risk of reoffending has to be balanced against the public interest in ensuring that the appeal remains effective for the purposes of protecting the relevant article 8 rights. It held that the public interest in a foreign criminal's removal in advance of an arguable appeal is outweighed unless it can be said that, if brought abroad, the appeal would remain effective (see [35] per Lord Wilson JSC, with whom the remaining members of the court save for Lord Carnwath JSC agreed). Lord Wilson was sceptical as to the practical availability and effectiveness of the equipment required to give evidence from abroad (see [61] and following), and he also had concerns about the practical availability of supporting professional evidence (see [74]) and ready legal advice (see [60]; and also at [96] per Lord Carnwath JSC). Lord Carnwath was much less sceptical about the ability of modern technology to enable effective oral evidence to be given (see [103]). In any event, the court made clear that whether these concerns can be addressed is quintessentially a fact-specific matter, the relevant question being whether the Secretary of State has established that, in all the circumstances, an out-of-country appeal is effective for the particular individual.
12. The Supreme Court concluded that, on the available evidence, the appellants in each case before it would not have a proper opportunity of presenting their case remotely; and so an out-of-country appeal would not be an effective procedure for the protection of their article 8 rights.

The Facts

13. The Applicant is a Pakistan national, born on 10 May 1989.
14. On 20 December 2009, aged 20, he first entered the UK with a Tier 4 student visa valid to 25 June 2011. After that date, he remained in the UK unlawfully. He was encountered by police and arrested on 8 August 2014, when he was served with notice as an illegal overstayer but released on conditional temporary admission. Within a week, it seems that he had failed to report as required.
15. In October 2014, through solicitors, the Applicant applied for leave to remain on article 8 grounds, on the basis of a former relationship in the UK with an Australian girlfriend, who by the time of the application had returned to Australia where she had had a child of whom the Applicant was the father. There is no evidence as to what happened to that application; but, on its face, it appears to have been hopeless.
16. In November 2014, the Applicant started a relationship with SH, a British citizen of Pakistani origin. On 2 May 2015, the Applicant and SH entered into an Islamic marriage.
17. However, before they did so, the Applicant had committed a serious offence. In April 2015, over the course of about a week, to enforce a purported business debt, the Applicant and several other men (one of whom was the creditor) threatened to kill or at least seriously injure the debtor if he did not make good the debt. On 13 October 2015, on a plea of guilty, the Applicant was sentenced to 16 months' imprisonment for his part in that blackmail.
18. As the Applicant had been sentenced to more than 12 months, the Secretary of State determined to deport him under section 32 of the UK Borders Act 2007. That decision was made and dated 28 October 2015, but it was served on the Applicant in prison on 17 November 2015. The decision letter was accompanied by a "one-stop notice" served under section 120 of the 2002 Act; and the letter expressly included the following (emphasised by underlining in the original):

"If you have reasons why you should not be expected to appeal only after you have left the UK, you must inform us within 20 working days of the date of service given at the end of this letter [i.e. 28 October 2015]".

19. On 27 January 2016, through solicitors, the Applicant made representations against the decision to deport him on article 8 grounds. SH was pregnant, with their child due to be born in June 2016. The representations included evidence from the Applicant and his wife, to the effect that SH and her parents were born in the UK without family in Pakistan. She was a British citizen, fully integrated into the wider community with a full-time job as a night club events manager, who had only been to Pakistan for three short visits of less than a month in total. The representations also relied on the adverse effect on her health during pregnancy that would result from the Applicant's removal from the UK, although, of course, the Applicant was at that stage not at home but in prison.
20. The Applicant was due to be released from prison on 22 March 2016, but he remained in immigration detention. On 25 April 2016, he was served with a notice of decision refusing his article 8 claim, and a deportation order. The article 8 claim was not certified under section 94(1) (as "clearly unfounded"); but it was certified under section 94B on the basis that his removal before the appeal was heard would not breach article 8.
21. On 29 April 2016, the Applicant's solicitors sent a pre-action letter; and, on 9 May 2016, they issued judicial review proceedings in the Upper Tribunal (Immigration and Asylum Chamber) challenging the certification. On 17 May 2016, the Applicant was released on bail on condition that he spent each night at the flat he shared with SH.
22. On 12 June 2016, SH gave birth to a daughter. The child is a British citizen.
23. On 27 June 2016, Upper Tribunal Judge Blum refused permission to proceed with the judicial review, a decision that was confirmed at an oral hearing before Upper Tribunal Judge Rimington on 4 October 2016. On 11 October 2016, the Applicant lodged an appeal with this court.
24. The Applicant was detained pending removal on 31 January 2017. Despite representations for his release on temporary admission on the basis of new evidence as to his daughter's birth and SH's further pregnancy, that detention continued until 10 February 2017 when the Secretary of State issued a new decision to refuse the Applicant's claim based on the new material and to certify that claim under section 94B. At the same time, the Applicant was served with removal directions for 28 February 2017. He remained in detention.
25. On 16 February 2017, the Applicant's solicitors sent the Secretary of State a further witness statement of SH saying that they still lived together; they were expecting a second child in May 2015; though she continued to work, she was finding it hard to carry out daily tasks with which the Applicant played a crucial part; and she had been told she would need gall bladder surgery after the birth of her second child. She confirmed that she could not live in Pakistan, because she had visited only three times and on the last occasion in 2012 she had been ill throughout her time there.
26. The Applicant issued an application in this court for an order restraining removal, which included an application to amend the judicial review grounds to include a challenge to the 10 February 2017 certification decision.
27. On 24 February 2017, on the papers, whilst not expressly dealing with the application to amend the grounds for judicial review, on all the material before him Irwin LJ refused permission to appeal and the application for interim relief. It seems that that order was sealed and sent to the parties on 27 February 2017. It was in an outdated and therefore incorrect form, because its rubric indicated that there was a right to an oral reconsideration of the refusal of permission which, after October 2016, there was not; although, on 1 March 2017, the Applicant's solicitors made an application for an oral reconsideration. An amended order in the correct form was issued on 2 May 2017. In the meantime, the Applicant was removed to Pakistan on 28 February 2017, arriving the following day.
28. On 13 March 2017, the Applicant lodged an appeal against the 10 February 2017 refusal of his article 8 claim with the First-tier Tribunal.
29. On 22 May 2017, SH gave birth to a second child, also a British citizen.
30. On 14 June 2017, the Supreme Court handed down their judgments in Kiarie & Byndloss.

The Current Legal Proceedings

31. On 31 July 2017, in the light of Kiarie & Byndloss, the Applicant's solicitors sent a pre-action letter to the Secretary of State claiming that the decisions to detain and remove the Applicant were based on unlawful certification under section 94B, and seeking (i) the withdrawal of the 25 April 2016 certification, (ii) the immediate return of the Applicant to the UK, and (iii) compensation for the Applicant's detention from 31 January 2017 until his removal and for the removal itself. The Secretary of State responded on 11 August 2017. No points were conceded, and the decision to certify the claim was maintained.
32. The Applicant lodged judicial review proceedings on 25 September 2017. The claim was cast in rather oblique terms, the challenge being to:

"Continuing failure & refusal of SSHD to (1) return the [Applicant] to the UK to pursue an in-country appeal, (2) accept the decisions to certify of 25/4/16 & 10/2/17 as unlawful (3) detention 22/3/16 to 17/3/16 & 31/1/17 to 2/3/17…".

33. On 8 December 2017, Nicholas Padfield QC sitting as a Deputy High Court Judge considered the permission application on the papers. He treated the claim as in substance seeking to challenge the decisions of 25 April 2016 and 10 February 2017 to certify the Applicant's article 8 claim under section 94B. He found that claim had been brought neither promptly nor within three months; that no explanation had been given for the delay; and that there was no basis for extending time in anticipation of a favourable result to the claim following Kiarie & Byndloss. He refused the application on that basis, but also commented that (i) this case was "plainly distinguishable" from Kiarie & Byndloss, and (ii) the Applicant had produced no cogent evidence to support the contention that an out-of-country appeal would in any way prejudice his ability to pursue his right of appeal. He declared the claim to be totally without merit, thereby removing the Applicant's right to an oral reconsideration of the application for permission to proceed in the High Court.
34. The Applicant's appeal against that order was issued in this court on 15 December 2017. The grounds are, at 21 pages, long – in my view, too long – but in essence they contend that, following Kiarie & Byndloss, neither of the two decisions to certify under section 94B is upholdable, because (i) they each focused exclusively on whether removal would cause "serious irreversible harm", and (ii) they each failed properly to approach the issue of whether an out-of-country appeal was procedurally effective to protect the relevant article 8 rights. It is said that oral evidence from the Applicant would be an essential part of any effective appeal procedure, and the Secretary of State has produced no evidence of the availability of appropriate video link facilities in Pakistan that could be used by the Applicant, a matter that is made more problematic by the issue of whether transmission of the hearing bundle to and then a video link with (e.g.) the British High Commission in Pakistan would be lawful under EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the EU Data Directive) and EU Directive 2002/58/EC on Privacy and Electronic Communications (the EU Privacy and Electronic Communications Directive). As it is, a year after issuing the out-of-country appeal, there is still no hearing date for it. In any event, it is submitted that the difficulties of obtaining instructions from the Applicant in Pakistan etc are itself fatal to an out-of-country appeal being an effective protection of the Applicant's article 8 rights.

The Applications: Discussion and Conclusion

35. On that basis, Mr Gill on behalf of the Applicant contends that permission to appeal should be granted, and, by way of interim relief, an order should be made requiring the Secretary of State immediately to return the Applicant pending the outcome of the appeal.
36. It would be helpful to clear the decks.
37. First, although the claim for judicial review is put in somewhat curious form, I agree with the Deputy Judge: it is essentially a challenge to the decisions on 25 April 2016 and 10 February 2017 to certify the Applicant's claims that to remove him would breach article 8. The claims for unlawful detention and unlawful removal effectively stem from those decisions.
38. Second, the 25 April 2016 decision to certify has been the subject of a previous judicial review. As I have described, permission to proceed with a judicial review of that decision was refused by the Upper Tribunal both on paper and at an oral reconsideration; and permission to appeal to this court was refused by Irwin LJ on 24 February 2017. No application to reopen that appeal has been made. I appreciate that, at least to an extent, this certification might arguably bear upon the lawfulness of the first period of detention; but, if an application to reopen were to be made now, it seems to me that it would be highly unlikely to succeed. In any event, on the applications before this court now, I need not consider further the 25 April 2016 decision to certify.
39. Consequently, this court's focus must be on whether the 10 February 2017 certification was unlawful – or rather, as we are concerned only with permission, whether it is arguably unlawful.
40. Only four days before the Applicant was deported on 28 February 2017, Irwin LJ refused an application to restrain the Applicant's removal, on the basis that it was not arguable that his removal could breach article 8.
41. Mr Gill submitted that Irwin LJ was at fault in not considering specifically the application to amend the grounds of judicial review to include a challenge to the decision to certify on 10 February 2017. However, I do not see any force in that. Irwin LJ had before him evidence of the then-current position with regard to the Applicant and his family, so far as their family life was concerned; and, on the basis of that evidence, he concluded that the Applicant's removal would not breach article 8.
42. However, Irwin LJ made that decision on the basis of the law as it was understood prior to the Supreme Court judgments in Kiarie & Byndloss, which were not handed down until four months later. I am afraid I cannot agree with the Deputy Judge's view that Kiarie & Byndloss is irrelevant to this claim, or that this claim is plainly distinguishable from that case. Of course, each article 8 case is necessarily fact-specific; but, like this claim, Kiarie & Byndloss was concerned with whether an out-of-country appeal would be effective for the protection of the article 8 rights of the particular applicant and his family members. The approach mandated by Kiarie & Byndloss to such matters applies to this case. However, neither Irwin LJ (in his decision of 24 February 2017) nor the Secretary of State (in the letter of 10 February 2017) nor the Deputy Judge (in his decision of 8 December 2017) adopted that approach.
43. These applications are directly concerned with the Deputy Judge's decision. As I have described, the Deputy Judge considered that the challenge to the 10 February 2017 certification decision was late, in that the judicial review was not lodged until 13 September 2017 (and, as a consequence, not issued until 25 September 2017), four months after the expiry of the three month period in which such claims are to be issued as prescribed by CPR rule 54.5. The Deputy Judge considered Kiarie & Byndloss to be distinguishable and irrelevant, so that there was no reasonable explanation for the delay.
44. Mr Gill has put forward a number of reasons for the delay, which, he contends, make it reasonable. Some I do not find persuasive. For example, he submits that the Applicant did make an application within time, because he sought to amend his grounds of judicial review in February 2017. However, as the Applicant well-knew, that application was not dealt with on its merits at that time. Of no greater force is the allied submission that the Applicant thought that the Court of Appeal had agreed that Irwin LJ's refusal of permission to appeal could be reconsidered at an oral hearing, at which the subject of an amendment of the pleading could also have been considered. The Applicant, who was legally represented, should have appreciated that there was no right to any reconsideration of Irwin LJ's order, no matter what the out-of-date rubric of the form said. In any event, that could not have accounted for the delay in issuing proceedings to 25 September 2017, which was four months after the corrected order of Irwin LJ was served on the Applicant's solicitors.
45. The proper approach to an extension of time in the circumstances of this case is that set out in respect of relief from sanctions in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537; [2014] 1 WLR 795 and Denton v TH White Limited [2014] EWCA Civ 906; [2014] 1 WLR 3926. It involves three stages.

i) The court must first identify and assess the seriousness and significance of the relevant failure to comply with any rule, practice direction or court order, taking into account the materiality of the breach including its effect on the conduct of the litigation and of litigation generally. If the breach is neither serious nor significant, then the court will likely grant relief.

ii) If it is serious and/or significant, then the court will consider why the default occurred. If good reason for the breach is shown, then again relief will usually be granted.

iii) Finally, the court will evaluate all the circumstances of the case, so as to enable it to deal justly with the application, giving particular (although not paramount) importance to the factors in CPR rule 3.9(1), i.e. the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.

46. In this case, the delay was lengthy – I accept that it was serious and/or significant – but the overwhelming reason for it was the change in the law as properly understood after Kiarie & Byndloss. After the Supreme Court judgments were handed down, the Applicant wrote a pre-action letter to the Secretary of State within about six weeks. I accept that that was not focused on the 10 February 2017 certification; but the Secretary of State did not then, and has not subsequently, made any great issue about that. In considering the time taken to issue proceedings, the fact that the Applicant's solicitors had to take instructions from abroad has to be taken into account.
47. In all the circumstances of the case, I would not bar the Applicant's claim for judicial review on the grounds of delay. I would give him the necessary extension of time so that his claim is in time.
48. Following Kiarie & Byndloss, I would also be minded to grant him permission to proceed with the judicial review. It seems to me that his challenge to the 10 February 2017 certification is at least arguable; and that it would be most appropriate, rather than grant permission to appeal, to grant permission to proceed with an application for judicial review and to remit that application to the Administrative Court for determination. Given that there may be findings of fact to be made in relation to the claim, it seems to me that that is the most appropriate forum to deal with the substantive application for judicial review. It can also deal with any linked claim for unlawful detention.
49. That leaves the application for interim relief in the form of a mandatory order requiring the Secretary of State immediately to return the Applicant to the UK.
50. I considered such orders recently in R (Nixon and Tracey) v Secretary of State for the Home Department [2018] EWCA Civ 3; [2018] HRLR 7 ("Nixon & Tracey"). Having reviewed the relevant authorities (particularly R (CM (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 160 and R (YZ (China) v Secretary of State for the Home Department [2012] EWCA Civ 1022, as read in the light of Kiarie & Byndloss), I set out the following propositions that could be derived from them (at [75]).

"(i) Where the Secretary of State rejects a human rights claim of a proposed deportee, an out-of-country appeal will not always be ineffective in protecting the human rights involved. Whether it will be effective will depend upon the facts and circumstances of the particular case.

(ii) Where the Secretary of State precludes an in-country appeal, by (e.g.) certifying a human rights claim under section 94B, that is not necessarily unlawful; but it is sufficient to establish a potential interference with the proposed deportee's article 8 rights, such that a burden is imposed on the Secretary of State to establish that that interference is justified and proportionate, and that removal from the UK without waiting for an appeal to run its course strikes a fair balance between the adverse effect of deportation at that stage on relevant rights under article 8 and the public interest. In particular, the Secretary of State will need to show that an out-of-country appeal will be effective to protect the article 8 rights in play.

(iii) Where an individual is deported on the basis of an unlawful certificate, the court has a discretion as to whether to make a mandatory order against the Secretary of State to return him to the UK so that he can (amongst other things) conduct his appeal in-country. That discretion is wide, and there is no presumption in favour of return, even where certification is unlawful. The exercise of the discretion will be fact-sensitive. However, when assessing whether it is just and appropriate to make a mandatory order for return of a deportee, the fact that that person has been unlawfully deprived of an in-country appeal to which he is entitled under statute is the starting point and a factor telling strongly in favour of ordering his return.

(iv) It will be a highly material consideration if the deportation was lawful or apparently lawful, in the sense that, even if a human rights claim that a deportation order should not be made or maintained has been unlawfully certified, the individual was deported on the basis of a deportation order that was not bad on its face and was not, at the relevant time, the subject of any appeal; and/or an application for a stay on removal had been refused or the court had directed that any further proceedings should not act as a bar to removal. On the other hand, it will also be material if the individual has been removed in the face of a stay on removal, or even if there is an active relevant appeal or judicial review in which the issue of a stay on removal has not been tested.

(v) The extent to which the individual's appeal will be adversely affected if he is not returned to the UK will also be highly relevant. It will be adversely affected if it is assessed that, if he is restricted to bringing or maintaining an out-of-country appeal, that will be inadequate to protect the article 8 rights of the individual and his relevant family members. The continuing absence of the individual from the UK may adversely affect his ability to present his appeal properly in a variety of ways, for example he may be unable properly to instruct legal representatives; he may be unable to obtain effective professional expert evidence; he may be unable to give evidence, either effectively or at all. If the court assesses that, even if the exercise would be more difficult than pursuing his appeal in the UK, the deportee could effectively pursue his appeal from abroad, that is likely to be finding of great weight and will often be determinative in favour of exercising the court's discretion not to make a mandatory order for return. On the other hand, if the court assesses that he could not effectively pursue an appeal from abroad, then that may well be determinative in favour of exercising that discretion in favour of making a mandatory order for return.

(vi) In addition to these procedural matters, the deportee's continuing absence from the UK may be a breach of article 8 in the sense that he is deprived from being with his family, and they from being with him, pending the outcome of the appeal. Generally, such a breach will not be irremediable. However, in addition to that being a potential substantive breach of article 8, it may result in his article 8 claim in the deportation case being undermined on a continuing basis, which may be a factor of some importance. These matters too may be relevant to the assessment of whether to make a mandatory order for the deportee's return.

(vii) There is a public interest in deporting foreign criminals – and in not returning foreign criminals who have been deported – although that may be a point of little weight where the relevant individual would have had the right to remain in the UK during the course of his appeal but for an (unlawful) certificate. There is also a public interest in public money not being expended on arranging for returning a deportee to this country to conduct an appeal which could adequately and fairly be conducted from abroad.

51. Like Byndloss & Kiarie itself (see paragraph 11 above), these propositions emphasise the fact that the requirement for the assessment of effectiveness for these purposes is focused on the particular individual circumstances of the case. That is reflected in the approach taken by the Upper Tribunal since Kiarie & Byndloss. In AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC) ("AJ (Nigeria)"), a constitution of the Upper Tribunal (Immigration and Asylum Chamber) comprising Mr Justice Lane P and Upper Tribunal Judge Hanson, having considered both Byndloss & Kiarie and Nixon & Tracey, gave the following guidance (as set out in the head note):

"(1) In the light of [Kiarie & Byndloss], the First-tier Tribunal should adopt a step-by-step approach, in order to determine whether an appeal certified under section 94B of the Nationality, Immigration and Asylum Act 2002 can be determined without the appellant being physically present in the UK.

(2) The First-tier Tribunal should address the following questions:

1. Has the appellant's removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from [UK] lawyers?

2. If not, is the appellant's absence from the [UK] likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?

3. If not, is it necessary to hear live evidence from the appellant?

4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?

(3) The First-tier Tribunal should not lightly come to the conclusion that none of the issues covered by the first and second questions prevents the fair hearing of the appeal.

(4) Even if the first and second questions are answered in the negative, the need for live evidence from the appellant is likely to be present. A possible exception might be where the respondent's case is that, even taking a foreign offender appellant's case at its highest, as regards family relationships, remorse and risk of re-offending, the public interest is still such as to make deportation a proportionate interference with the Article 8 rights of all concerned.

(5) If the First-tier Tribunal concludes that the appeal cannot be lawfully determined unless the appellant is physically present in the [UK], it should give a direction to that effect and adjourn the proceedings."

52. So, I come to the question as to whether interim relief should now be granted to require the Secretary of State to take immediate steps to return the Applicant to the UK.
53. I do not consider that the court's discretion should be exercised to make any such order at this stage. In coming to that conclusion, I have particularly taken into account the following matters.

i) For present purposes, I accept that, as a result of Kiarie & Byndloss, the approach of the Deputy Judge below to the lawfulness of the section 94B certificate dated 10 February 2017 was wrong; and I accept that that certificate was at least arguably unlawful.

ii) Furthermore, as I said in Nixon & Tracey at [75 (iii)], the fact that a person has been deprived of an in-country appeal to which he may be entitled under statute is a factor telling strongly in favour of ordering his return.

iii) In addition, as a matter of fact, the Applicant and his family have been living apart as a result of his removal for over 15 months, and will continue to do so until he successfully appeals the deportation removal on human rights grounds or the court orders his return. The infringement of the relevant article 8 rights continues.

iv) However, as Ms Giovannetti submitted, we are here concerned with more than the lawfulness of the original decision. "Foreign criminals" who are deported under the automatic deportation provisions of Section 32 of the UK Borders Act 2007 (see paragraph 6 above) have, by definition, committed and been convicted of a serious criminal offence in the UK. At [35] of Kiarie & Byndloss, Lord Wilson suggested that the only public interest in removing a criminal before his appeal against the refusal of his article 8 claim is to remove the risk of reoffending – and Mr Gill submitted that in this case the risk of the Applicant reoffending was vanishingly small. The National Probation Service report dated 3 February 2017 assessed the Applicant as posing a "a medium risk of harm, however his risk of reoffending is low". However, in my view, the risk of reoffending is not the only public interest in removal in these circumstances: for example, it also removes the risk of absconding. Furthermore, Lord Wilson was only talking in terms of whether an individual should be removed prior to his appeal. In this case, the Applicant was removed about 15 months ago; and, in assessing (amongst other things) the best interests of the children, we have to take into account (e.g.) the possibility of the trauma that might be caused if the Applicant were to be returned to the UK and shortly thereafter removed again.

v) Although I am proceeding on the basis that the removal of the Applicant was or may have been unlawful, he was nevertheless deported on the basis of a deportation order that was at least apparently lawful. Mr Gill submits that, as the Applicant was removed after the argument had been heard by the Supreme Court but before their judgments had been delivered, the Secretary of State well-knew there were serious questions about the legality of his approach to section 94B certifications and about the reliability of the Court of Appeal decision. He criticised the Secretary of State's conduct in this regard. However, the Secretary of State had certified the Applicant's human rights claim in accordance with the authorities as they then stood; and, on the basis of full and up-to-date evidence, only a few days before the Applicant's removal, Irwin LJ had refused a stay on his removal. As at the date of the removal, there were no outstanding appeals or other proceedings seeking to challenge the certification or the removal itself.

vi) Indeed, as Ms Giovannetti emphasised, despite the request in the 28 October 2015 decision letter requiring the Applicant promptly to identify any reason why he should not be expected to appeal out-of-country (see paragraph 18 above), the Applicant did not suggest that he would have any difficulties in appealing from abroad then, or in the original judicial review (which was brought on different grounds, e.g. the article 8 rights of the unborn child). Although the Applicant and his legal team were aware that Kiarie & Byndloss had been heard in the Supreme Court, no application was made in the original judicial review (even before Irwin LJ, shortly before the removal directions were due to be implemented) that the claim/appeal should be stayed pending the outcome of that case in the Supreme Court. Indeed, no claim on the basis of any deficiency in an out-of-country appeal was made until some weeks after the Supreme Court judgments in Kiarie & Byndloss had been handed down. In my view, this at the very least substantially undermines Mr Gill's submission that the Secretary of State's conduct in removing the Applicant as and when she did was in any way reprehensible.

vii) As a factor in the balancing exercise, the article 8 rights, whilst substantial, are not the strongest. I fully appreciate that the rights of two children who are British citizens are involved – and their rights are a primary consideration. However, the Applicant married his wife after he committed the serious offence that led to the deportation order. They had been in a relationship for only six months. He was deported about two years after the marriage, of which he had spent about 12 months in prison or detention. He has in fact had little contact with either of his children. The family have lived apart since his deportation in February 2017, having during that time met only relatively briefly in Dubai. Although I appreciate that the family has been split because of the removal which the Applicant contends is unlawful, as Lord Wilson indicated in Kiarie & Byndloss at [58], actual separation unfortunately but inevitably undermines the strength of the ties upon which article 8 rights depend.

viii) Furthermore, although of course the family have been split, the evidence of the adverse impact on the Applicant, his wife and children does not suggest it has been of the gravest kind. In a witness statement dated 12 September 2017, i.e. when she was pregnant with her second child, SH said she was finding it difficult to cope, and she feared that she would not be able to carry on working after the child was born. She was concerned about the practicalities of living in a fourth floor flat with two young children. Communications are not easy, because of the time difference (five hours), and the limited internet access in Pakistan. There is no more recent statement from her, although the Applicant's solicitor (Hamza Malik) in a statement dated 8 March 2018, says that SH is reluctant to take the children to Pakistan at all because of security issues and the fact that the Applicant has no proper residential facilities there. However, it is clear from the statement of Mr Malik (paragraph 5 and following) that the Applicant does see his wife and children in Dubai, to where they all travel, from time-to-time. I accept that that is not the same as living in a household together on a permanent basis; but the statement refers to the "frequent and at times lengthy travels", which suggests that, despite the expense and effort involved, these visits enable the family to make meaningful contact with each other whilst they wait for a decision on the Applicant's appeal.

ix) Mr Malik says (at paragraph 12 of his statement) that he would usually expect to instruct expert social workers in relation to an article 8 case such as this; and Mr Gill expressed concern that it will not be possible to prepare a social services report on how the family with the Applicant function. However, I do not consider that the submission that the Applicant is required in the UK so that an independent social worker report can be prepared on the basis of observations of the relationships working in practice. Even if he were to be returned now, the relationship and any family life they would enjoy are likely to be slow to form or reform, and would be almost entirely new.

x) Nor is the evidence of difficulties obtaining instructions etc suggestive of insuperable difficulties, as opposed to mere inconvenience.

xi) I do not consider that the fact that, following Kiarie & Byndloss, the Secretary of State directed that section 94B certificates should not be issued for the time being to be of any assistance to the Applicant. In the light of the judgments in that case, it was understandable that the Secretary of State introduced such a policy until the efficacy of new systems for out-of-country appeals had been tried and tested.

xii) Importantly, the interim relief sought by the Applicant is in fact the final relief he seeks by way of the judicial review, i.e. his immediate return to the UK. We are not here concerned directly with the difficulties that the Applicant may have in contesting an out-of-country appeal. We are concerned with the difficulties he will have in prosecuting the claim for judicial review that will determine whether an out-of-country appeal will be sufficient protection for the relevant article 8 rights. The challenges with regard to the Applicant being in Pakistan are therefore somewhat different, and less acute.

xiii) Furthermore, that claim will run in parallel with the out-of-country appeal which the Appellant is currently pursuing. There is a case management conference in the First-tier Tribunal in that appeal fixed for today. Mr Gill says that the appeal gives rise to the difficult issues concerning data protection and privacy to which I have already referred. However, in a letter from the GLD dated 7 June 2018, the Secretary of State indicates that the First-tier Tribunal are currently hearing both mock appeals and substantive appeals using video links, with some success. A determination of the First-tier Tribunal has been disclosed in redacted form, in which the tribunal, applying the guidance in AJ (Nigeria), have found that the facilities for a link with Nigeria were sufficient to ensure that the appeal was procedurally fair and sufficient to protect the article 8 rights of the applicant in that case. Two mock hearings have been held using facilities in Pakistan, and lead cases involving links with Pakistan are currently being heard. One was heard two weeks ago, and another is due to be heard this week. Of course, whether a video link is sufficient to give an appellant's article 8 rights adequate protection will necessarily require a fact-specific assessment; but these examples – I accept that they are no more than examples – suggest that video link may be sufficient in at least some cases and that insuperable issues concerning data protection and privacy do not arise in every case.

xiv) Mr Gill accepted that the First-tier Tribunal not only has the jurisdiction to consider whether the proceedings before it are compliant with the procedural obligations of article 8, but the tribunal has an obligation to ensure compliance; and he accepted that the tribunal is the optimal forum for determining such an issue. I firmly agree. The tribunal has advantages over this court – and, indeed, the Administrative Court – in terms of constitution, experience and facilities; and, in these circumstances, the specialist tribunal will be able to look at the details required to ensure an effective appeal (see Kiarie & Byndloss at [104] per Lord Carnwath, and R (W2 and IA) v Secretary of State for the Home Department [2017] EWCA Civ 2146 at [86]-[88] per Beatson LJ in the parallel context of the Special Immigration Appeals Commission). If the tribunal in this case, at any time, considers that the Applicant's appeal cannot be dealt with effectively out-of-country – or cannot be dealt with effectively out-of-country within a reasonable time – then it can and must say so. The guidance in AJ (Nigeria) suggests that, in these circumstances, a direction to that effect should be given by the tribunal, and the appeal should be adjourned, presumably to allow the Secretary of State to consider his position and for the Applicant to make such application to the High Court as he considers appropriate and necessary. In circumstances in which the tribunal is due to hold a case management conference in the Applicant's appeal today, that all appears to me to be a powerful reason for not granting now the interim relief the Applicant seeks.

54. In all the circumstances, I do not consider that justice or fairness demands a mandatory order requiring the Secretary of State to take steps to return the Applicant at this stage. Such an order, in my judgment, would be neither appropriate nor proportionate. If there comes a stage when it appears that an effective out-of-country appeal cannot be conducted – or conducted within a reasonable time – then, as I have indicated, it will of course open to the Applicant to make a further application to the High Court.

Conclusion

55. For those reasons, I would (i) grant permission to proceed with the judicial review in respect of the challenge to the 10 February 2017 decision to certify the Applicant's claim under section 94B (with any consequential decisions, including decisions in relation to detention), but refuse permission on grounds relating to the 25 April 2016 certification; (ii) remit the judicial review to the Administrative Court, initially to the Lead Judge (Supperstone J) for directions taking into account the appeal that is currently proceeding before the First-tier Tribunal; and (iii) refuse the application for an order requiring the Secretary of State to take steps to return the Applicant to the UK in the meantime.

Observations

56. I understand from Ms Giovannetti that there are several hundred cases in which the Secretary of State removed individuals from the UK under deportation orders on the basis of a section 94B certificate, prior to Supreme Court judgments in Kiarie & Byndloss, of which Nixon & Tracey and this case are but examples.
57. I have emphasised that whether an out-of-country appeal will be effective will depend upon the circumstances of a particular case; and, therefore, the extent to which it is possible to give guidance in respect of other cases is necessarily limited. However, as I have indicated, it is my view that the natural and appropriate forum for considering and determining issues as to whether such an appeal will be effective is the First-tier Tribunal. The issue is likely to require the consideration of evidence, and findings of fact, in relation to, amongst other things, the availability and accessibility of appropriate video link equipment to the appellant, the effectiveness of such a link for the purpose of the appellant giving evidence, and the extent to which the appellant being abroad will adversely impact on his representation and/or his ability to obtain supporting professional evidence. These are matters which the First-tier Tribunal is used to considering, and in my view the tribunal will clearly be the appropriate and best forum for the determination of these matters in the vast majority of cases. The guidance given in AJ (Nigeria) will assist in focusing the minds of the parties in such hearings.
58. Therefore, when parties are considering the appropriate course in these cases, they should consider the possibility of staying any judicial review proceedings (or any appeal from a determination in a judicial review claim) in favour of applying to the First-tier Tribunal for directions for the determination of these issues. In my view, that should be the default position. It is only in the event of some failure in that procedure that parties should resort to the court.

Lord Justice Singh:

59. I agree with the judgment of Lord Justice Hickinbottom.