Category: IAU

Kiarie & Byndloss v SSHD – ‘deport first, appeal later’

R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent) R (on the application of Byndloss) (Appellant) v Secretary of State for the Home Department (Respondent)



The Supreme Court (‘SC’) was asked to consider: where the law gives such a person a right to appeal to a tribunal against a deportation order, then, however difficult it may be for him to succeed, does the Home Secretary breach his human rights by deporting him before he can bring the appeal and without making proper provision for him to participate in the hearing of it?


The SC allowed the appeals and held that the SSHD had exercised her power under s. 94B to certify claims of foreign criminals in the absence of a Convention- compliant system. The appellants could not effectively appeal against the decision from outside the UK and therefore this breached their Article 8 rights.


The appeals were brought by way of judicial review of the s.94B certificates, the only mechanism in which the certificates could be challenged. In both cases the decision to certify the appeals had been taken after the deportation orders had been made, after the power to do so had come into force. At the time of making the decision to deport the appellants, the SSHD did have the power to certify the claims under s. 94, if the SSHD was of the view the human rights claims were ‘clearly unfounded’. The SSHD did not to exercise this power and thus the claims were deemed arguable.


Objective of S.94B

Lord Wilson, gave the leading judgment. In arriving at that their decision to allow the appeal, the SC held that the objective of s.94B was to prevent appellant’s seeking to delay the determination of their appeals in order to strengthen personal and family connections. The SC further held that the stronger public interest in s. 94B was to prevent appellants from reoffending pending their appeals. Therefore, there was a public interest in removal before appeal. Lord Wilson went one step further stating that, that public interest may be outweighed by a wider public interest, the right to an effective appeal.


Analysis of S.94B

The SC confirmed that the criteria for s.94B was that removal pending appeal would not breach the claimant’s human rights and would only do so if there was a real risk of serious irreversible harm.


The guidance given to case workers meant that they were applying a different test. The guidance advised that s.94B allowed a human rights claim to be certified where the appeal process has not begun or had not been exhausted, where it was considered that the person liable to deportation would not, before the appeal is exhausted, face a real risk of serious irreversible harm if removed to the country of return.


Wilson LJ held that based on this understanding of the test it was understandable why the certification decisions were based on the conclusion that they (appellants) would not face a real risk of serious irreversible harm if removed to their countries in advance of their appeal.


In the Court of Appeal (CA), Richards LJ (gave leading judgment) conceded that the two certifications were based on a legal misdirection. Nevertheless, he held that the misdirection in Mr. Kiarie’s case was not material because even if the correct test had been applied, the SSHD would have certified his claim. In relation to Mr. Byndloss, the legal misdirection was cured by a supplementary decision which had been conceded by all parties as amounting to the decision subject to challenge.


Lord Wilson wholly departed and disassociated himself from that view. He stated that the approach adopted by the CA would lull case-workers into thinking that they would be safe to concentrate on weighing a real risk of serious irreversible harm to the prospective appellant himself. But, a specific focus on the risk of serious harm to the prospects of his appeal might very well ground a conclusion that his removal in advance of it would breach his Convention rights.


Judicial Review

The SC also considered the how to treat their approach in deciding whether deportation would breach the appellant’s Article 8 rights. Clearly in a substantive appeal, the tribunal would have to decide whether a breach would occur and assess for itself the proportionality of deportation.


During a judicial review hearing, the court must assess whether deportation in advance of appeal would breach the appellant’s Article 8 rights. In making that decision it must assess the proportionality of deportation at that stage.


The issue arose as to how the court should treat the SSHD’s findings of fact in assessing whether deportation in advance of appeal would breach an appellant’s convention rights. In the CA, Richards LJ held that the findings of fact were open to review only on Wednesbury standards of unreasonableness.


Lord Wilson was of a wider view, for the Court to discharge its duty under s.6 of the Human Rights Act 1998 the court needed to be more proactive and needed to recognize its residual power to determine facts and receive evidence including hearing oral evidence.


Article 8

The SC held that the certificates did breach the appellant’s Article 8 rights as they would be deprived of effective remedy; an effective appeal.


In arriving at that decision LJ Wilson took into account two main points, the weakening of Article 8 claims on appeal and the difficulties in presenting an appeal.


Plainly, once an appellant advancing an article 8 claim had been deported, their integration in UK society and their relationship with their family would have seized. Home Office statistics suggested that bringing and appeal from abroad would be likely to be heard within five months of filing the relevant notice. Even if the five- month period was not seen as an optimistic time frame, the delay would significantly weaken an arguable appeal. In response to the SSHD’s argument that such rupture to the appellant’s integration into society and family ties would have already been caused by the period in incarceration, Lord Wilson was of the view that immediate removal from the UK would have been far more damaging than prior incarceration.


In deciding that the certificates obstructed the appellant’s ability to effectively present his appeal, the SC considered the likelihood of an appellant having legal aid, whether an NGO could assist with his appeal and whether he would actually be represented at the hearing. Even if the appellant had legal representation, he and his lawyer would face insurmountable difficulties in being able to present his case and in obtaining instructions.


The appellant would be responsible for arranging video link conferences and for financing such conferences. In some countries, it was simply not possible to set up or to even have access to such facilities let alone afford it. Furthermore, the appellant would be denied the opportunity to give oral evidence and participate at his hearing. The appellant would also face appellant insurmountable difficulties in obtaining supporting professional evidence, from probation and social services. Moreover, such reports would be meaningless if the appellant could not give evidence about his family ties and relationships.


Between the 28th of July 2014 and 31st of December 2016 the Home Secretary issued 1,175 section 94B certificates in relation to foreign criminals, all, with arguable appeals. Of those 1,175 persons, the vast majority were no doubt duly deported in advance of their appeals. But by 31 December 2016 only 72 of them had filed notice of appeal with the tribunal from abroad. It may be that on 13 February 2017 a few of those appeals remained undetermined. However, as of that date, not one of the 72 appeals had succeeded.


Carnwarth LJ, also gave judgment, allowing the appeals. However, he provided a more moderately toned judgment, softening much of the criticisms made by Wilson LJ. He said it was necessary to distinguish between the substantive and the procedural aspects of rights afforded by Article 8. He was of the view that their substantive rights would not be disproportionately infringed by temporary removal pending a decision on their appeals.


He distinguished two separate elements: first, the ability of the appellant from abroad to assemble evidence and prepare and present his case; secondly, his ability to give oral evidence. From the evidence provided by BID, Carnworth LJ concluded, it was difficult to see how an appellant from abroad could realistically prepare and present an effective appeal as there would be major logistical problems in ensuring that documents were made available and instructions obtained before and during the course of the hearing.


Further, he saw no reason in principle why the use of modern video facilities could not provide an effective means of providing oral evidence and participation from abroad, so long as the necessary facilities and resources were available.








Immigration Law Update: Tier 1: Iqbal & Dependants v The Secretary of State for the Home Department [2015] EWCA Civ 169

Follow the link to read the full judgment.

The Court of Appeal considered submissions regarding third party funding and the specified documentary requirements contained in paragraph 41-SD, in Appendix A of the Immigration Rules, applicable to Tier 1 (Entrepreneur) applicants.
Paragraph 41-SD requires the appropriate amount to be shown as;
(a) cash money,
(b) that the applicant is permitted to use to invest in a business in the UK, and
(c) that money is either held in a UK regulated financial institution or is transferable to the UK.
At [12], the Court confirmed that although the requirements only refer directly finances held by “applicants”, compliance was still required where some or all of the relevant funds was being provided by third parties.
The First Appellant submitted that in the case of third parties, the aim of the Rules was to identify that the third party had the requisite funds, and it was sufficient, through a “purposive” interpretation, to show that the (third party) account holder could show the appropriate amount of money under the Rules.
The Court rejected this approach. Firstly, the Rules were clearly aimed at establishing the availability of requisite funds to the applicant rather than just the third party purporting to offer them (see [14]). Secondly, the Court cited with approval the ratios regarding literal interpretation in the linked UT decisions in Fayyaz (Entrepreneurs) [2014] UKUT 296 (IAC), Durrani (Enterpreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC), and Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC) (see [16]-[18]). The words mean what they say, and they achieve the underlying purpose of paragraph 41 in Appendix A to the Rules.
The Second Appellant went on to submit, however, that the financial institutions providing evidence of third party funds would not provide such documentary evidence that included the applicant’s permission to use the funds to invest as required, and thus a “purposive interpretation” necessitates that such documents need only show that the funds are available to the (third party) account holder, and the amount of money available to that account holder. However, this submission was dismissed at [26] on the ground that there had not been any evidence to show that the relevant financial institution would not, or could not, provide the documentary evidence in the format required.

Immigration Law Update: Tier 1: Hossain & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 207

Click here to read the full case.

This appeal sees the Court of Appeal considering again the controversial “date of award” requirement under the now closed Tier 1 (Post-Study Work) Migrant route – that is, the requirement that the applicant must have made the application “within 12 months of obtaining the relevant qualification”. The A was one of many who applied under the route, shortly before it closed, at a time when he had completed his studies but not yet been awarded his degree.

His representative sought to distinguish the decisions in Nasim and others (Raju: reasons not to follow?) [2013] UKUT 00610 (IAC), and Rasheed and others v Secretary of State for the Home Department [2014] EWCA Civ 1493 by founding the argument on the text of the application form which at § G5 referred to the option to send “an original letter from the institution giving details of the awarding body, and confirmation that the certificate of award will be issued”. This, it was argued, created a legitimate expectation that the strict requirement of the rules would be waived.

The appeal was dismissed with the Court of Appeal following Nasim and Rasheed. The Court held that § G5 required “confirmation that the certificate of award will be issued” which the A’s letter did not. Moreover, part G as a whole is concerned with the nature of the qualification, and not with the date on which it was awarded, which is dealt with in part K.

Immigration Law Update: R (on application of Jamar Brown (Jamaica)) (Respondent) v The Secretary of State for the Home Department

Follow the link to read the full judgment.

The SC, in a unanimous judgment dismissed the appeal of the SSHD against the majority view of the CA allowing the R’s appeal. The CA had decided, where a serious risk of persecution exists in a state for an entire section of the community, then it cannot be said there is “in general” no serious risk of persecution in that state. The state is Jamaica and the community is the LGBT community. Consequently, it was unlawful to place Jamaica, pursuant to s94(5) of the NIA 2002, on the list of states in which claims are presumed to be “clearly unfounded”. The majority of the SC agreed with the judgment of Lord Toulson. Lord Hughes, although concurring with the result, giving a minority judgment. Of note:

i. The expression “in general” in section 94(5) NIA 2002 is taken to mean that persecution occurs in the ordinary course of things as opposed to isolated incidents;

ii. The inclusion of a state on the s94(3) NIAA 2002 list of countries does change the complexion of the analysis given to the claim of someone from that state;

iii. The CA were right to refuse to admit Hansard material as the language of s94(5) is not ambiguous, statements relied upon in Hansard did not have the requisite degree of clarity and nothing said during the debate on the Order could be admissible as an aid to construing the parent Act. In relation to the latter reason, this however is not a rigid rule e.g. where the wording of the later Act is materially identical to that of the Order;

iv. Generally speaking, a later amendment to an Act cannot affect the construction of an Act as originally enacted. As such, the later introduction of s94(5A) to (5C) to NIA 2002 should not influence the interpretation of s94(5); and

v. Lord Hughes, although concurring with the result, took the view that the expression “in general” in s94(5) of NIA gives the SSHD a degree of flexibility in considering the manifold different political and social situations which may arise in different foreign states. The SSHD should not be prevented from designating a state under s94(4) on the basis that a group or section of the community may suffer persecution. The SSHD, in any event, is required to give individual consideration to each case before reaching a decision whether to certify the asylum claim as clearly unfounded. If certification is challenged, then this is to be given the most anxious scrutiny by the courts.

Immigration Law Update: Sponsor Licence: 360 GSP College Ltd v The Secretary of State for the Home Department [2015] EWHC 526

Click here to read the full case.

Case involving Sponsor licensing unit. C, the College, sought judicial review of the D, Secretary of State’s, withdrawal of the Tier-4 sponsor licence. The issue was whether the D’s decision was irrational or unreasonable.

The Administrative Court dismissed the application, held that the Secretary of State had been entitled to be suspicious about the robustness of the C’s compliance with its duty to assess the English language ability of its students. She had been entitled to conclude that the Claimant had posed a serious risk to immigration control.

Immigration Law Update: European Law: The Secretary of State for the Home Department v NA (Pakistan) [2015] EWCA Civ 140

The CA referred three questions (see §30) concerning the issues below to the Court of Justice of the European Union. NA is a Pakistani national. Following the break down of her marriage to a German national she retained custody of their two German national children, who were born in the UK. The SSHD appealed the decision of the UT that the A has a right of residence, under Article 20 of the Treaty on the Functioning of the European Union (“the TFEU”)/Ruiz Zambrano v Office national de l’emploi [2012] QB 265, and under Article 12 of Regulation (EEC) No. 1612/68 (“Regulation 1612/68”). The SSHD did not appeal against the UT’s Article 8 decision; the appeal was allowed after the SSHD conceded that it was not realistic to expect the children (the EU citizens) to live in Germany.

The appeal centred on whether the finding that removal to Germany would be a breach of Article 8 was equally applicable to the Article 20/Zambrano claim, the argument being that once there had been a finding that it was not realistic for NA and her children to live in Germany they would in practice be obliged to leave the territory of the EU. The CA found that there is no authority on the question of whether an EU citizen has a right to reside in a host Member State where it had been accepted that removal would breach Article 8.

The second challenge concerned the finding by the UT that domestic provisions (derivative rights of residence conferred by regulation 15A of the Immigration (European Economic Area) Regulations 2006) imposed a further condition not outlined in Regulation 1612/68, which provides for children’s access to education when residing in a Member State. The CA found that the authorities cited did not expressly preclude or support an implied condition that the EU national parent must be in the host Member State when the child enters education.

Immigration Law Update: R (on the application of Ronald Blaise) v The Secretary of State for the Home Department [2015] EWHC 391

R (on the application of Ronald Blaise) v The Secretary of State for the Home Department [2015] EWHC 391 (Admin)

Refusal of leave to enter and a decision to remove was held to be well within the range of reasonable and lawful responses to the C.  The C had ILR and a NTL stamp in his passport but it was not genuine having been issued by an employee of the Home Office who had pleaded guilty to misconduct in a public office and had specifically pleaded guilty to issuing the C with false status papers.  It was held that ILR had never been properly issued and was therefore invalid and had no effect. It was not necessary to decide whether the C had acted in bad faith to reach this decision (although the Judge went on to find that the C was dishonestly involved).  No in-country right of appeal arises where the individual has no status, had not been granted leave to enter and had not raised human rights, Alighanbari v SSHD & FTT [2013] EWHC 1818 (Admin) considered.  The length of residence, ex-wife and grown child was held to be insufficient to found a human rights claim which would have attracted an in-country right of appeal.

Immigration Law Update: AP (India) v The Secretary of State for the Home Department [2015] EWCA Civ 89

This was an entry clearance case in which an adult son, who sought to joint his British father, was the only member of the family who had not succeeded in his appeal below.  The CA considered the part which redressing historic injustice can play in an Article 8 proportionality assessment. Here the historic injustice was the restriction on the right of entry to the UK imposed by the Commonwealth Immigration Act 1968 on people who were CUKCs (citizens of the UK and Colonies) under the British Nationality Act 1948, which persisted until May 2003 and particularly effected East African Asians.  The court accepted, despite very limited evidence, that were it not for the historical injustice the Appellant’s father would have settled in the UK earlier, with the consequence that the Appellant would have sought entry as a minor rather than as an adult, and in all likelihood would have been granted a right of entry just as his mother and sister were.  Elias LJ took the view that that Court should not be “unduly rigorous” in its application of the causation test, given that its significance was to redress historical injustice (§37).  Referring to Patel v ECO Mumbai [2010] EWCA Civ 17 and R (on the application ofGurung) v SSHD [2013] EWCA Civ 8 the Court allowed the appeal, the need to correct historic injustice influencing the proportionality assessment decisively.
There are also some useful comments in the concurring judgments of McCombe LJ (§45) and King LJ (§ 51) about the fact that in contemporary society young adults, especially students, commonly continue to form part of the family in which they have grown up rather than necessarily “making their own way in the world”.

Immigration Law Update: The Secretary of State for the Home Department v Dube (ss.117A-117D) [2015] UKUT 00090 (IAC)

The UT considered the application of s.117 of the Nationality and Asylum Act 2002 (as inserted by section 19 of the Immigration Act 2014). The Tribunal emphasized the obligation on the Tribunal to consider the matters set out in these provisions in determining an Article 8 claim and that though the SSHD herself was not so obliged that she might wish to in the interests of good and consistent administration and decision making. The Tribunal held that the consideration of the matters set out in s.117 did not however remove the duty to undertake the five-question approach adumbrated in Razgar; and did not either present as a comprehensive list of factors relevant to an Article 8 inquiry vis proportionality. In its own words the Tribunal summarised its conclusions in the following way:

“(1) Key features of ss.117A-117D of the NIA 2002 include the following:

(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to “have regard” to the specified considerations.

(b) these provisions are only expressed as being binding on a “court or tribunal”. It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.

(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase “in particular” in s.117A(2): ” In considering the public interest question, the court or tribunal must (in particular) have regard— “.

(d) section 117B enumerates considerations that are applicable “in all cases”, which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out “additional” considerations that must mean considerations in addition to those set out in s.117B.

(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially about proportionality and justifiability.

(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.”

Immigration Law Update: Deportation: The Secretary of State for the Home Department v Dumliauskas & Ors [2015] EWCA Civ 145

The appeal by the SSHD concerned her right to expel EEA nationals from a Member State. All three As have extensive criminal records, with ME also being detained in a mental hospital where he committed arson. The Court found that once proportionality is engaged, the factors to be taken into account do not vary with the length of legal residence of the person. The latter affects the weight to be given to the respective prospects of rehabilitation and such prospects are not irrelevant unless the offender has a permanent right of residence. Rehabilitation is not infrequently linked to the health of the offender, which was the case in ME and AD. In LW there is a connection between alcohol consumption and his offending. The Court found that it is easier for the SSHD to obtain evidence as to support services in other Member States. The SSHD’s appeal was allowed in all three cases and they were remitted to the Tribunal.

Immigration Law Update: Naturalisation: R (on the application of Xue Zhen Cao) v The Secretary of State for the Home Department

This was an application for JR of the SSHD’s decision to refuse to grant British citizenship, on the basis that the applicant had deliberately attempted to mislead the Secretary of State, and so was not of ‘good character’. Dove J agreed that the SSHD was obliged to treat As fairly (Thamby [2011] EWHC 1763 (Admin)) and to approach the ‘good character’ requirement as a comprehensive exercise of judgement rather than mechanistically (Hiri [2014] EWHC 254). However, he held that the SSHD was entitled to conclude that the provision by the C of three different dates of birth in various applications made by her, without any attempt to explain the position at the time, intentionally misleading: the provision of an accurate date of birth was a matter of considerable importance to the SSHD in establishing identity and administering immigration control.  Application dismissed.

Immigration Law Update: LH and IP (gay men: risk) Sri Lanka Country Guidance [2015] UKUT 00073 (IAC)

This was the first time that the UT had given a reported decision on the issue of the risk to gay or LGBT persons in Sri Lanka, or in relation to civil partnership. After a three day hearing the Tribunal issued the following guidance:
“(1) Having regard to the provisions of articles 365 and 365A of the Sri Lankan Penal Code, gay men in Sri Lanka constitute a particular social group.
(2) “Gay men in civil partnerships” in Sri Lanka do not constitute a particular social group for the purposes of the Refugee Convention. The Sri Lankan authorities’ failure to recognise alternative marital and quasi-marital statuses such as civil partnership or homosexual marriage which are available in other countries of the world does not, without more, amount to a flagrant breach of core human rights.
(3) Applying the test set out by Lord Rodger in the Supreme Court judgment in HJ (Iran) [2010] UKSC 31, in general the treatment of gay men in Sri Lanka does not reach the standard of persecution or serious harm.
(4) There is a significant population of homosexuals and other LGBT individuals in Sri Lanka, in particular in Colombo. While there is more risk for lesbian and bisexual women in rural areas, because of the control exercised by families on unmarried women, and for transgender individuals and sex workers in the cities, it will be a question of fact whether for a particular individual the risk reaches the international protection standard, and in particular, whether it extends beyond their home area.
(5) Where a risk of persecution or serious harm exists in an appellant’s home area, there may be an internal relocation option, particularly for individuals returning via Colombo from the United Kingdom.”