Home Office issues guidance on ‘remove first, appeal later’ in human rights appeals

The Home Office has published guidance on how the new certification process will operate under the Immigration Act 2016.

Legislation

Section 94B of the Nationality, Immigration and Asylum Act 2002 contains a process which is known as certification. This means that an immigration appeal can only be lodged and heard, or continued if the claim is certified after the appeal is lodged, whilst the claimant is outside the United Kingdom. Therefore, just because an individual does have the right to appeal, it does not mean they cannot be removed from the country. This principle has recently been enforced in Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020.

The power provided under s.94B has been amended under the new s.63 of the Immigration Act 2016 and certification now extends to all Human Rights related appeals.

It is subject to certain conditions, most importantly that this requirement would not be unlawful under s.6 of the Human Rights Act. However, it is important to note that it is a discretionary power, so a decision maker may take into account other factors when choosing whether or not it should be exercised.

When s.94B is considered

The usage of the power under s.94B will be considered:

• In all deport cases;
• In non deport cases on or after 1 December 2016 where the claimant did not have leave when they made their human rights claim and when the claimant does not rely on their relationship with a British national family member (note that both criteria must be met).

Exceptions

There are certain exceptions to s.94B. No certification will be allowed under any circumstances if the case involves:

1. Appeals where a temporary removal from the country would create a situation which is unlawful under s.6 of the HRA;
2. Any claims which engages Article 2 (right to life) and/or Article 3 (right to freedom from torture) cannot be certified;
3. Fresh claims which raise Human Rights grounds. If a further application raises human rights grounds, and are considered under para. 353 of the Immigration Rules, the application will not be certified if it is decided that the submissions do not amount to a fresh claim. This is because there will be no right of appeal;
4. Claims which are late as there is no right of appeal (see s.96 of the 2002 Act);
5. Claims which are clearly unfounded, for the same reason (see s. 94 of the 2002 Act);
6. Where the individual’s whereabouts are unknown, the claim will not be certified. In the situation where their whereabouts is discovered, the certification will be reconsidered.

In addition, there are a number of cases in which certification will not generally be considered suitable.

1. Where the individual is serving an indeterminate sentence in prison.
2. When the claim involves an unaccompanied child.
3. When the individual may be a victim of human trafficking.

Considerations When Deciding Whether or not to Certify

Home Office employees must consider all the evidence they have related to a case when considering whether or not to certify. In addition to considering whether they fall into any of the exceptions above, they must also consider whether or not the certification is proportionate and procedurally correct. If the individual is a child, they must consider whether certification will harm their education and/or health. There is also discretion on public interest grounds, should it look likely that certification would pose a risk to the general public.

They are not, however, required to do any additional research into the case except in exceptional circumstances, such as in the case of a child. As established in case law, it is for the claimant to prove that they fall into one of the exceptions.

Contact our Immigration Barristers in London

For more information about Certification and/or ‘out of country’ appeals, contact our experienced immigration barristers in Covent Garden, London on 0203 617 9173 or via our online enquiry form.