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.