Category: IAU

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)

Background

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.

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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.

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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.

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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.

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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.

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.