QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department

Factual and Procedural Background

The Applicant, a national of Pakistan, was deported from the United Kingdom to Pakistan on 28 February 2017. He seeks permission to appeal against an order dated 8 December 2017 by a Deputy High Court Judge who refused permission to proceed with a judicial review. The judicial review challenged the Secretary of State’s decisions dated 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, which effectively removed his right to an in-country appeal against deportation on human rights grounds. The Applicant also sought relief concerning two periods of alleged unlawful detention linked to those certification decisions.

The Applicant initially entered the UK on a student visa in 2009 but overstayed unlawfully. He was convicted of a serious offence in 2015 and sentenced to 16 months' imprisonment, triggering automatic deportation under the UK Borders Act 2007. Following his release from prison, the Applicant’s article 8 human rights claim was refused and certified under section 94B, resulting in an out-of-country appeal requirement. The Applicant was detained pending removal in early 2017 and was ultimately deported despite ongoing legal challenges.

Subsequent to the Supreme Court’s judgments in Kiarie & Byndloss (2017), which clarified the law on certification and out-of-country appeals, the Applicant sought judicial review of the later certification decision and interim relief requiring his return to the UK pending appeal. The Deputy High Court Judge refused permission to proceed with judicial review on grounds of delay and merit. The Applicant appealed that refusal.

Legal Issues Presented

1. Whether the decisions to certify the Applicant’s human rights claims under section 94B of the 2002 Act were lawful.
2. Whether an out-of-country appeal procedure adequately protects the Applicant’s rights under article 8 of the European Convention on Human Rights.
3. Whether permission to proceed with judicial review should be granted despite delay in bringing the claim.
4. Whether interim relief in the form of a mandatory order requiring the Secretary of State to return the Applicant to the UK pending the appeal should be granted.

Arguments of the Parties

Appellant's Arguments

• The decisions to certify under section 94B are unlawful because they focused solely on the risk of serious irreversible harm and failed to properly assess whether an out-of-country appeal is effective to protect article 8 rights.
• Oral evidence from the Applicant is essential for an effective appeal, and the Secretary of State has produced no evidence that appropriate video link facilities are available in Pakistan.
• The difficulties in obtaining instructions and evidence from abroad fatally undermine the effectiveness of an out-of-country appeal.
• The delay in bringing the judicial review should be excused due to the change in the law following the Supreme Court’s decision in Kiarie & Byndloss and the time needed to take instructions from abroad.
• Interim relief should be granted requiring the Secretary of State to return the Applicant to the UK pending the appeal.

Respondent's Arguments

• The certification decisions were lawful at the time they were made and are not plainly distinguishable from established case law.
• Irwin LJ’s refusal of interim relief before removal was sound, based on the law as understood then.
• The public interest in removing foreign criminals extends beyond risk of reoffending, including the risk of absconding.
• The Applicant failed to raise concerns about the efficacy of an out-of-country appeal in a timely manner, undermining claims of unlawfulness in removal.
• Video link facilities have been used successfully in the First-tier Tribunal, and the tribunal is the appropriate forum to consider the effectiveness of out-of-country appeals.
• Interim relief requiring return is not appropriate or proportionate at this stage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the Applicant's challenge primarily as a judicial review of the 10 February 2017 certification decision under section 94B. It acknowledged that the previous refusal of permission to proceed with judicial review was based on delay and a view that Kiarie & Byndloss was distinguishable. However, the court disagreed with that assessment, holding that the Supreme Court’s guidance on the necessity of an effective out-of-country appeal applies directly to this case.

The court applied the framework from Mitchell and Denton to assess the delay in bringing judicial review and found the delay excusable due to the change in law after Kiarie & Byndloss and the practical difficulties of taking instructions from abroad. Consequently, an extension of time was granted and permission to proceed with judicial review was given.

Regarding the interim relief application for mandatory return, the court considered the principles set out in Nixon & Tracey and related authorities. It accepted that the certification might be unlawful and that deprivation of an in-country appeal is a strong factor in favour of return. Nonetheless, the court balanced this against public interest considerations, including the Applicant’s status as a foreign criminal and the risk of absconding, the apparently lawful deportation order at the time of removal, and the fact that no stay on removal was in place.

The court also considered the family circumstances and the impact of separation but found the ties were not strong enough to outweigh other factors. It noted evidence of ongoing, albeit limited, contact with family and the availability of video link facilities demonstrated in other cases, suggesting out-of-country appeals can be effective in some circumstances.

The court emphasised that the First-tier Tribunal is the appropriate forum to assess the effectiveness of the out-of-country appeal in detail, including factual findings about video link facilities and the appellant’s ability to participate. The pending case management conference in the First-tier Tribunal reinforced the court’s view that interim return was not justified at this stage.

Accordingly, the court refused the interim relief application but granted permission to proceed with judicial review, remitting the matter to the Administrative Court for substantive determination.

Holding and Implications

The court’s final decision was to grant permission to proceed with judicial review in respect of the 10 February 2017 certification decision, but to refuse permission relating to the 25 April 2016 certification decision due to delay and procedural grounds. The judicial review was remitted to the Administrative Court for further directions and substantive hearing.

The court also refused the application for interim relief requiring the Secretary of State to return the Applicant to the UK pending the appeal, finding that such an order would not be appropriate or proportionate at this stage.

This decision clarifies that challenges to section 94B certifications must be brought promptly but that extensions of time may be granted in light of significant legal developments. It confirms that the effectiveness of out-of-country appeals is a fact-specific inquiry best conducted by the First-tier Tribunal, which has the expertise and procedural mechanisms to assess such issues. The ruling reinforces the balance between protecting article 8 rights and the public interest in deporting foreign criminals, without establishing a broad new precedent beyond the application of established principles.