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Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department
Factual and Procedural Background
Two foreign nationals (“Appellant 1” of Kenyan nationality and “Appellant 2” of Jamaican nationality) had each lived in the United Kingdom since childhood or early adulthood and held indefinite leave to remain. Both were convicted of serious drug-related offences and therefore met the statutory definition of “foreign criminals.” The Respondent (the Home Secretary) made deportation orders against them in October 2014. At the same time, the Respondent issued certificates under section 94B of the Nationality, Immigration and Asylum Act 2002. The certificates required any appeals against deportation to be brought only after the Appellants had left the United Kingdom (“out-of-country appeals”).
The Appellants sought judicial review of the certificates, contending that removal prior to their appeals would violate their Article 8 rights (private and family life). The High Court refused permission, but the Court of Appeal dismissed their renewed challenges on the merits. The Supreme Court (constituted by Judge Wilson, Judge Hale, Judge Hodge, Judge Toulson and Judge Carnwath) granted permission and delivered the present judgment.
Legal Issues Presented
- Whether the Respondent’s certification decisions under section 94B were lawful and compatible with Article 8 of the European Convention on Human Rights.
- Whether requiring an appellant to pursue a deportation appeal from abroad provides an “effective” remedy, as required by Article 8 (read with Article 13).
- What level of judicial scrutiny applies to the Respondent’s factual findings when certification is challenged by judicial review.
Arguments of the Parties
Appellants' Arguments
- Deportation prior to the appeal would make their Article 8 appeals ineffective, primarily because they could not realistically give live evidence or secure legal representation from abroad.
- The Respondent misdirected herself by focusing solely on whether there was a “real risk of serious irreversible harm” to the individuals, rather than on whether the appeals themselves would remain effective.
- The certificates were issued without procedural fairness; the Appellants were not consulted before certification, and later “supplementary” decision-making letters altered the basis of the decisions at the last moment.
Respondent's Arguments
- The public interest in the prompt deportation of foreign criminals is weighty; Parliament intended section 94B to reduce delay and prevent abuse of the appeal process.
- Out-of-country appeals remain effective: written statements, evidence from UK-based relatives, and modern communication methods (video-link or Skype) can adequately protect procedural rights.
- The Respondent’s factual findings should only be set aside on traditional Wednesbury principles; there was no irrationality in concluding that removal would not breach Article 8.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ali v Secretary of State for the Home Department [2016] UKSC 60 | Very compelling reasons are required to outweigh the public interest in deporting foreign criminals. | Used to illustrate the high hurdle Appellants face but distinguished when assessing procedural fairness. |
| Mamatkulov v Turkey (2005) 41 EHRR 25 | ECtHR interim-measure practice; “serious irreversible harm” criterion. | Referenced to show the origin of the phrase relied on by the Respondent. |
| Al-Nashif v Bulgaria (2003) 36 EHRR 655 | Need for an adversarial process before removal decisions affecting fundamental rights. | Supports requirement that appeals be effective and procedurally robust. |
| De Souza Ribeiro v France (2014) 59 EHRR 10 | Article 13 requires an “effective possibility” of challenging expulsion decisions. | Adopted as the leading authority on what makes a remedy effective under Article 8. |
| Khlaifia v Italy [2016] ECHR 1124 | Affirmed De Souza Ribeiro principles on effective remedies. | Quoted approvingly in defining effectiveness. |
| W v United Kingdom (1988) 10 EHRR 29 | Parents must be sufficiently involved in decisions affecting family life. | Extended to immigrants’ Article 8 claims. |
| R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622 | Legal aid may be required to secure effective access to a court under Article 8. | Used to assess difficulties Appellants would face without in-country legal representation. |
| R (Lord Carlile) v Secretary of State [2014] UKSC 60 | Court must form its own view on proportionality where human rights are at stake. | Cited on the court’s duty to scrutinise proportionality independently. |
| Manchester City Council v Pinnock [2010] UKSC 45 | Court may reconsider facts to ensure compatibility with Convention rights. | Relied on to justify departing from Respondent’s factual findings if necessary. |
| R (Detention Action) v First-tier Tribunal [2015] EWCA Civ 840 | High standards of fairness required in immigration appeals; timetables must permit proper case preparation. | Analogous support for scrutinising section 94B certificates. |
| Boultif v Switzerland (2001) 33 EHRR 50 | Set criteria for assessing deportation and family life. | Forms backdrop to the “very compelling reasons” test. |
| Maslov v Austria [2008] ECHR 546 | Importance of post-offence conduct in deportation cases. | Discussed regarding rehabilitation evidence. |
| IR v United Kingdom [2014] EHRR SE14 | Remedy must be “as effective as can be” in context. | Supports flexibility but underscores need for genuine effectiveness. |
| R (Khawaja) v Secretary of State [1984] AC 74 | Early concern over effectiveness of out-of-country appeals. | Historical context showing longstanding judicial unease. |
| Huang v Secretary of State [2007] 2 AC 167 | Value of oral evidence in immigration appeals. | Cited in discussion of witness credibility. |
| Secretary of State v Gheorghiu [2016] UKUT 24 (IAC) | Importance of live evidence when rehabilitation is central. | Used to question adequacy of video-link evidence. |
| Secretary of State v Nare [2011] UKUT 443 (IAC) | Criteria for allowing evidence by electronic link. | Forms practical benchmark for tribunal directions. |
| R (Caroopen) v Secretary of State [2016] EWCA Civ 1307 | Handling of late “supplementary” decision letters. | Highlighted procedural concerns in Appellant 2’s case. |
| R (Aguilar Quila) v Secretary of State [2011] UKSC 45 | Four-stage proportionality test under Article 8. | Framework applied when balancing interests. |
| R (Giri) v Secretary of State [2015] EWCA Civ 784 | Application of Wednesbury principles to Home Office fact-finding. | Distinguished; anxious scrutiny alone deemed insufficient here. |
Court's Reasoning and Analysis
Judge Wilson (majority) held that the crucial question was whether an appeal pursued only after removal could still be “effective.” The court accepted that foreign criminals face a high substantive hurdle (very compelling reasons) but emphasised a distinct procedural right: they must enjoy a practical ability to advance that case. The majority found:
- Section 94B requires the Respondent to be satisfied that early removal will not breach Convention rights; focusing solely on “serious irreversible harm” to the individual was a misdirection because it ignored harm to the appeal process.
- Live oral evidence from the Appellant will often be central to credibility, rehabilitation and family-life assessments. Written statements alone are usually inadequate.
- The suggested alternatives—tribunal summonses, video-link, or Skype—were, in practice, illusory. Appellants bear prohibitive costs, face technical and bureaucratic hurdles, and the tribunal lacks reliable equipment or funding. Empirical data showed very few video-link applications and a near-zero success rate for out-of-country appeals.
- The Respondent provided no Convention-compliant system ensuring that appellants could give live evidence or otherwise participate meaningfully. Therefore, removal prior to appeal failed the proportionality test under Article 8.
- Traditional Wednesbury review of the Respondent’s fact-finding was inadequate; courts must independently verify compatibility with Convention rights, including reassessing facts where necessary.
Judge Carnwath agreed in the result but emphasised that the statutory “section 6 pre-condition” obliges the Respondent to have adequate information demonstrating that procedure will be effective before certifying. The evidence before the Respondent fell short of that standard.
Holding and Implications
HELD: The appeals are allowed; the section 94B certificates are quashed.
Immediate Effect: The Appellants may pursue their deportation appeals from within the United Kingdom, and the Respondent must refrain from enforcing removal until those appeals are concluded.
Broader Implications: The judgment significantly restricts the Respondent’s ability to use section 94B unless a robust, accessible system exists to guarantee that out-of-country appellants can give live evidence and obtain effective legal assistance. The decision will influence future certification decisions under both the original and the expanded (post-2016) power, but it sets no new substantive deportation precedent; its impact is procedural and systemic.
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