Introduction

The case of Watson v Secretary of State for the Home Department & Anor ([2018] UKUT 00165 (IAC)) adjudicated by the Upper Tribunal (Immigration and Asylum Chamber) on April 5, 2018, addresses critical issues surrounding the procedural fairness and effectiveness of out-of-country appeals under Section 94B of the Nationality, Immigration and Asylum Act 2002 (2002 Act). The applicant, Wellington Paul Watson, challenges the decisions of the Secretary of State for the Home Department (SSHD) to maintain a Section 94B certification of his Article 8 European Convention on Human Rights (ECHR) claim and to refuse his return to the United Kingdom (UK) to engage in his ongoing appeal process before the First-tier Tribunal.

The key issues revolve around whether the current procedural arrangements allow for a fair and effective appeal process when the appellant is removed from the UK, and whether the SSHD's decisions infringe upon the applicant's procedural and substantive rights under Article 8 ECHR.

Summary of the Judgment

The Upper Tribunal, presided over by Judge O Connor, considered the applicant's application for permission to bring judicial review proceedings against the SSHD's decisions. The applicant sought to challenge the maintenance of his Section 94B certification and the refusal to facilitate his return to the UK for his appeal.

The Tribunal focused on four primary grounds of challenge:

• Grounds 1 & 2: Procedural challenges alleging that the out-of-country appeal would breach Article 8 ECHR and the common law duty of procedural fairness.
• Grounds 3 & 4: Substantive challenges claiming that the removal infringes the applicant's and his family's Article 8 rights.

The Tribunal, referencing the Supreme Court's decision in Kiarie and Byndloss v SSHD, deliberated on the effectiveness and fairness of the appeal process when the appellant is outside the UK. The decision concluded that the First-tier Tribunal is better positioned to assess the factual circumstances of each case regarding Article 8 compliance. Consequently, the application for judicial review challenging Grounds 1 & 2 was stayed, allowing the First-tier Tribunal to determine the effectiveness of the out-of-country appeal. Grounds 3 & 4 were also not disposed of at this stage, recognizing that the First-tier Tribunal is the appropriate forum for such substantive assessments.

Analysis

Precedents Cited

The judgment extensively references the landmark Supreme Court decision in Kiarie and Byndloss v SSHD [2017] UKSC 42, which redefined the approach to assessing the lawfulness of Section 94B certifications. In this decision, the Supreme Court emphasized the need to evaluate not just the substantive aspects of Article 8 but also the procedural fairness of the appeal process when conducted out of the country. Additionally, the case cites R (Nixon and Another) v SSHD [2018] EWCA Civ 3, which further explored the practicalities of conducting fair appeals via video-link for deported individuals.

Legal Reasoning

The Tribunal adopted a nuanced approach, recognizing the inherent challenges in assessing procedural fairness and effectiveness from the Upper Tribunal level. It acknowledged that the First-tier Tribunal, with its specialized judges and contextual understanding, is better equipped to evaluate case-specific factors that determine whether an out-of-country appeal meets the requirements of Article 8 ECHR.

The Tribunal highlighted a step-by-step approach derived from Kiarie and Byndloss and synthesized in subsequent cases like AJ (s94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC). This approach involves assessing:

• The appellant's ability to secure effective legal representation and communicate with counsel.
• The likelihood of obtaining crucial professional evidence while being abroad.
• The necessity and feasibility of delivering oral evidence via video-link.
• The overall effectiveness of the appeal process in safeguarding procedural rights.

In Watson's case, the Tribunal found that while there were logistical challenges, they did not conclusively demonstrate that the appeal process would be inherently unfair or ineffective. The decision to stay the application allowed for the First-tier Tribunal to address these factual disputes directly.

Impact

This judgment reinforces the layered judicial approach to handling procedural fairness in immigration appeals, particularly when appellants are deported. By deferring the assessment of procedural fairness to the First-tier Tribunal, the Tribunal ensures that factual nuances and case-specific details are adequately considered. This delineation of responsibilities upholds the principles established in Kiarie and Byndloss and ensures that appellants have a fair opportunity to present their cases, even from abroad.

Moreover, the judgment underscores the growing reliance on technological solutions like video-link for conducting hearings, highlighting both their potential and limitations. While acknowledging existing challenges, the Tribunal remains open to the effective use of such technologies, provided they do not compromise the fairness of the proceedings.

Complex Concepts Simplified

Conclusion

The Upper Tribunal's decision in Watson v Secretary of State for the Home Department & Anor reinforces the importance of procedural safeguards in immigration appeals, especially when appellants are removed from the UK. By deferring the assessment of procedural fairness to the First-tier Tribunal, the Tribunal ensures that each case is evaluated on its specific merits and factual circumstances, aligning with the Supreme Court's directives in Kiarie and Byndloss.

This judgment highlights the judiciary's commitment to balancing the state's interest in deporting individuals against the appellant's rights to a fair and effective appeal process. It underscores the necessity for tailored assessments in Section 94B cases and paves the way for more nuanced evaluations of procedural fairness in the evolving landscape of immigration law.

Ultimately, Watson serves as a crucial reminder that while the state retains the authority to enforce immigration controls, such actions must be tempered with rigorous procedural protections that uphold the fundamental rights enshrined in the ECHR.