Out of Country Human Rights Appeals

By Alexandra Pease - Barrister Partner

23 Dec 2016

Section 63 of the Immigration Act 2016 came into force on 1st December 2016 (see Immigration Act 2016 (Commencement No. 2 and Transitional Provisions) Regulations 2016 (SI 2016/1037SI2016/1037) which allows the Secretary of State for the Home Department to certify human rights appeals.

This allows the Home Office to remove a person who pursues an appeal based on human rights even while the appeal is pending. Previously this applied only to foreign criminals. The impact of this provision will be wide ranging given that most cases are based on family relationships, relationships with children or on the basis of private life.

Applicants could appeal against a decision and still potentially be separated from family for the duration of an appeal.

The case of Kiarie [2015] EWCA Civ 1020 is perhaps a good starting point, although this case of course deals with the previous deportation proceedings, pursuant to section 94B of the Nationality, Immigration and Asylum Act 2002, amended by the Immigration Act 2014, which came into on 28th July 2014. This case essentially found that removal while there is an appeal will usually not be unlawful.

In this case both appellants were liable to deportation by reason of “serious criminal offending”. They both claimed removal would breach their right to private/family life pursuant to Article 8. Both had brought judicial review proceedings. The main issue in this case was “whether, in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certificate was in breach of (i) the procedural guarantees inherent in article 8 and/or (ii) the appellant’s substantive rights under Article 8. The first question focuses on the effectiveness and fairness of an out of country appeal in deportation cases. The second question focuses on the proportionality of any interference with the appellant’s private and/or family life pending determination of an appeal”.

The Court concluded that the Secretary of State cannot lawfully certify unless she considers that removal pending the outcome of an appeal would not be in breach of any person’s Convention rights. The risk of serious irreversible harm is “the overarching test”. Consideration must be given to whether removal for the interim period is proportionate, this is a fact examined in each individual decision. The Secretary of State still has a discretion whether to certify or not.

On behalf of the Appellants it was argued that out of country appeals are less effective than in country appeals and that Appellants would face “practical difficulties in procuring, preparing and presenting evidence” for the appeals, it would impact on the fairness and appearance of fairness in proceedings, requiring an Appellant to appeal out of country was likely to “diminish chances of success”.

The Court concluded: “an out of country appeal will be less advantageous to the appellant than an in country appeal. But article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. It requires access to a procedure that meets the essential requirements of effectiveness and fairness,” (paragraph 64) and “The Secretary of State is entitled, in my view, to rely on the specialist immigration judges within the tribunal system to ensure that an appellant is given effective access to the decision-making process and that the process is fair to the appellant, irrespective of whether the appeal is brought in country or out of country”, (paragraph 65). The Court found, at paragraph 66, that electronic communication could be used with a lawyer and the Tribunal can be addressed and receive evidence as to how the Appellant was reintegrated to their country, in Mr Kairie’s case in Kenya.

New guidance was published on 1st December 2016 and explains how decision makers should consider certifying a refused human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002.

The guidance makes clear that section 94B “continues to be potentially applicable to all deport cases where a human rights claim has been refused”.

There is an important concession for those non-deportation cases:

“The power to certify non-deport cases should be applied on or after 1 December 2016 where the case under consideration meets both of the criteria below:

1. the claimant did not have existing leave at the point that they made their human rights claim (for example, overstayers or illegal entrants)
2. the claimant does not rely on their relationship with a British national family member.

For the purposes of identifying this cohort, the term ‘family member’ means a partner, parent, or child, where there is evidence of the relationship”.

Both criteria need to be met.

The guidance confirms that the caseworker must in making their decision consider:

1. The best interests of any children affected by the decision, in compliance with section 55;
2. Risk of serious irreversible harm to the Applicant and others pending the outcome of the appeal;
3. Whether the removal pending the outcome breaches the human rights of any claimant or any other person for any other person;
4. The evidence demonstrating procedural unfairness
5. Whether there been a request for the exercise of discretion

The guidance still contains examples of where certification may be appropriate in the absence of additional factors. In light of the concession may be more relevant to deportation cases:

1. The fact that the Claimant will be separated from their partner for a period of time whilst they appeal;
2. The Claimant is the parent of a UK child but there is no subsisting relationship and although there is a family case this can be pursued abroad;
3. A child or partner is undergoing a medical conditions and the Claimant is not a carer;
4. A Claimant has strong private life which may be disrupted;
5. The use and impact of this new provision remains to be seen.

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