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) [2017] UKSC 42

Robert Parkin, immigration barrister at Invictus Chambers, considers whether the Supreme Court’s recent decision marks an end to “Deport First Appeal Later”.

Deportation of migrants who commit serious crimes is a politically charged legal topic. The Prime Minister, in her former capacity as Home Secretary, sought to characterise herself as tough on both migration, crime, and Convention rights. That approach was clearly popular with much of the public. Where immigration, criminal, and human rights laws coincide, a particularly stringent approach is perhaps to be expected. Entirely dispassionate commentary, including in the higher courts, is a relative rarity.

Perhaps unsurprisingly in that context, deportation cases have, for several years, been at the forefront of the development of constitutional law. The courts have proven to be a major battlefield, with setbacks to both the government and its opponents. Kiarie is one of several such Supreme Court decisions. This article attempts to explain the context within which Kiarie was decided and the likely impact on deportation cases going forward.

Background

The term “deportation” does not, despite its widespread use as such, refer to any form of removal from the UK. Whereas a person who requires, but does not or ceases to have the right to remain in the UK may be “administratively removed” from the country; the power to “deport” a person from the UK is a punitive sanction for migrants who are in the UK lawfully or otherwise who have committed serious crimes. It is a venerable power, dating at the very least to the inception of modern immigration control in Immigration Act 1971.

For certain categories of offender, deportation is at the discretion of the Secretary of State for the Home Department (“Home Secretary”), for others, the process is automatic with limited exceptions. This article considers deportations of the automatic category.

Persons affected by immigration decisions may generally appeal against that decision. This includes persons subject to deportation orders. However, a right of appeal is not automatic, and again since Immigration Act 1971, it has been a feature of immigration control that some appeals may not be conducted from inside the UK.

Legal Framework

The statutory scheme is as follows:

The Home Secretary has been granted the power by Parliament to deport a person where she “deems his deportation to be conducive to the public good”- s.3(5)(a) Immigration Act 1971.

The deportation of a person who is not a British citizen, but has been sentenced to a period of imprisonment equalling or exceeding twelve months is always to be treated as conducive to the public good- s.32(4) UK Borders Act 2007.

The deportation of such persons is automatic unless certain exceptions apply, most commonly, that it the deportation would breach his rights under the ECHR- s.32(5) of the 2007 Act.

A person may, in principle, appeal against such a decision under ss.82(1) and (3A) Nationality, Immigration, and Asylum Act 2002.

However, ss.92(1) and (4)(a) of the 2002 Act provide that such an appeal may only be brought in the UK insofar as it claims the deportation would amount to a breach of his Convention rights.

Thus, a deportee could appeal in the UK against a decision that the deportation would amount to no more than a proportionate interference with his Art.8 rights, but if he wished to challenge a finding that he was not a British citizen or had been sentenced to 12 months or more imprisonment, he would either have to resort to judicial review or appeal from abroad.

Moreover, under ss.94(1) and (2) of the 2002 Act, A human rights claim, including a claim challenging deportation, which the Home Secretary deems to be totally without merit may be certified, requiring any appeal to be made from abroad.

However, the provision of the greatest relevance in the present case is s.94B of the 2002 Act. This power was created by s.17(3) Immigration Act 2014 and had effect from 28 July 2014. At the time of these appeals, it read:

“(1)      This section applies where a human rights claim has been made by a person (‘P’) who is liable to deportation under –

(a)section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or

(b)…

(2)The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3)The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”

Under this power, the Home Secretary may, therefore, deport an applicant while his appeal is pending so long as she is satisfied that the deportee “would not suffer serious irreversible harm” and that the removal itself would not be in violation of the deportee’s Convention rights. This applies irrespective of whether or not the Home Secretary considers that the appeal might, or even probably would succeed.

From 1 December 2016, the power was extended to other, non-deportation immigration decisions by the coming into force of s.63 Immigration Act 2016, though that was not of direct relevance in Kiarie.

The Present Cases

The court was confronted with circumstances which may be described as typical. Both Kiarie and Byndloss had been granted indefinite leave to remain in the UK many years before their offending. They had both been here for a very extended period. They had substantial family ties to the UK. On the other hand, there should be no illusion that either was anything other than a serious criminal- they had both been sentenced to several years imprisonment as dealers of Class A drugs.

The Home Secretary had not elected to certify that their appeals were totally without merit under s.94. She had, however, certified that the decisions under s.94B of the 2002 Act. There being no right of appeal, the certifications were challenged by way of judicial review, eventually reaching the Supreme Court.

The Decision

The Supreme Court quashed the certificates. It gave the following reasons:

  • In a claim for judicial review, the Tribunal is expected to form its own view on the proportionality of the deportee’s removal pending the appeal; but the residual power of an appeal court to make findings of fact supported by oral evidence must be recognised.
  • Anything other than an effective appeal would not be compliant with the Convention. An appeal in which oral evidence was not heard was very unlikely to be effective.
  • One concern was that the deportee’s interim removal would have the effect of undermining the substantive merits of his appeal (as his private/family life in the UK would already have been disrupted).
  • However, of greater concern was the impact on the fairness of proceedings. A deportee would find it difficult to the point of impossible to appoint legal representatives from abroad; and if he could, would be unable to obtain legal aid or give full instructions. He would be deprived of the opportunity to give oral evidence in person, although a procedure for summoning the deportee for the purposes of giving evidence, it was ineffective and impractical. Evidence via video link would be adequate (though not ideal) but arrangements in the Tribunal for video evidence were essentially non-existent and no thought had been given to facilities for giving such evidence abroad.
  • Given such an inadequate system for the conduct of appeals from abroad, the Home Secretary could not satisfy herself that certification under s.94B was Convention compliant. In such circumstances, she had exceeded her powers under s.94B(2) of the 2002 Act or at the very least had acted irrationally in the exercise of them. This would apply in all cases where a deportation appeal might turn on oral evidence.
  • The certificates were therefore quashed. Kiarie and Byndloss are by no means home and dry, but will have the opportunity to appeal within the UK.

Summary

The decision has been an embarrassing setback for the government. A key component of an important immigration policy cannot be exercised in its current form.

That said, rumours of the death of the “Deport First, Appeal Later” scheme have been greatly exaggerated. All that has changed in reality is that a meritorious or arguably meritorious appeal cannot now be certified on the grounds that interim deportation would be Convention compliant. Many, perhaps even most deportees will still find that they may only appeal from abroad:

  • Sections 92(1) and (3A) of the 2002 Act are unaffected. An appeal brought on grounds other than convention rights may still only be brought after the deportee has left the UK.
  • Sections 94(1) and (2) of the 2002 Act are also unaffected. A claim may still be certified, requiring any appeal to be made from abroad. Given the high threshold for human rights claims in deportation cases, this is likely to apply to a significant number of deportees.
  • It remains open to the Home Secretary to devise a more robust appeal system permitted a fair hearing to be conducted from abroad. This was a door which the Court specifically held open. If so, Kiarie would no longer be applicable. The challenges would, however, be very significant.

Nevertheless, an important weapon in the Home Secretary’s arsenal has been disarmed. How the government will react is not clear, and the precedents are divided:

  • In R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, the Home Secretary lost the power she had assumed to hold to pass laws by way of policy statements; her response was to work within the restrictions placed upon her power to formulate an essentially indistinguishable scheme. There is scope for a similar approach here.
  • However, in The Lord Chancellor v Detention Action [2015] EWCA Civ 840; she lost the right to decide asylum claims under the detained fast track procedure. In that case, the Home Secretary seemed to tire of defending the procedure and there has been no indication that a similar procedure will re-emerge.
  • It should be recalled that the Home Secretary has also succeeded in defending key policies in Ali and Bibi, R (on the applications of) v Secretary of State for the Home Department (Rev 1) [2015] UKSC 68 and MM (Lebanon) & Ors, R (on the applications of) v Secretary of State and another [2017] UKSC 10. These policies remain in place despite concerns about their Convention compatibility.

Kiarie is probably to be cautiously welcomed as a technically correct decision. The imperatives underlying the policy are, however, compelling. In general terms, it behoves the Home Secretary to ensure that the appeal system is sufficiently swift, efficient and robust to deal with foreign national offenders. Kiarie, rightly, points out severe deficiencies which are symptomatic of wider problems.

Robert Parkin