Post by Bronwen Jones, family and immigration practitioner at Goldsmith Chambers.
In R (on the application of Kiarie) v Secretary of State for the Home Department  UKSC 42, the Supreme Court addressed the lawfulness of what has become known as the ‘deport first, appeal later’ provision of the Immigration, Nationality, and Asylum Act 2002 – section 94B, as amended by section 17(3) of the Immigration Act 2014. The Court determined that this power is incompatible with the procedural requirements of Article 8 of the European Convention on Human Rights, which protects the right to respect an individual’s private and family life.
It is worth setting out the background to this decision by reviewing the complex and interlocking legal framework governing deportation in the UK. Pursuant to section 32 of the UK Borders Act 2007, the Secretary of State ‘must’ make a deportation order in respect of a ‘foreign criminal’ (s. 32(5)), that is a person who is not a British citizen and has been convicted of an offence for which she was sentenced to a period of imprisonment of at least 12 months. Section 32(5) is subject to several exceptions set out in section 33. We are concerned with the exception in section 33(2)(a), which relates to asserted breach of the European Convention on Human Rights.
Circumstances in which there is a breach are set out in paragraphs 398, 399, and 399A of the immigration rules. Taken together these provide:
- A person who has been sentenced to a period of imprisonment of at least 12 months, but less than four years, imprisonment can resist deportation on Article 8 grounds only if (paragraph 398(b)):
- She has a genuine and subsisting relationship with a child who is either British or has lived continuously in the UK for more than 7 years, and it would be ‘unduly harsh’ both for that child to leave the UK and for that child to remain in the UK without the departed person (paragraph 399(a)); or
- She is in a genuine and subsisting relationship with a British partner or a person who is settled in the UK, and it would be ‘unduly harsh’ both for that partner to leave the UK and for that person to remain in the UK without the deported person. It is specified that this test will be met only in ‘compelling circumstances’ which exceed the test in paragraph EX.1 of Appendix FM of there being ‘insurmountable obstacles to family life with that partner continuing outside of the UK’ (paragraph 399(b));
- She has been lawfully resident in the UK for most of her life, is socially and culturally integrated into the UK, and there would be very significant obstacles to her integration into the country to which it is proposed she be deported (paragraph 399A); or
- If none of these exceptions apply, there must be ‘very compelling circumstances over and above’ any of those set out in paragraph 399 or 399A (paragraph 398).
A person who is being deported because, in the view of the Secretary of State, her offending has caused serious harm, or she is a persistent offender, can resist deportation on the same grounds as a person who has been sentenced to a period of imprisonment of at least 12 months, but less than four years (paragraph 398(c)); A person who has been sentenced to a period of at least four years’ imprisonment can only resist deportation on the basis of ‘very compelling circumstances over and above’ any of those set out in paragraph 399 or 399A (paragraph 398(a)) -see for example SSHD v JZ (Zambia).
The threshold for resisting deportation on Article 8 grounds is, therefore, already extremely high.
Deport first, appeal later
The relevant power was introduced by an amendment to the 2002 Act, which came into force on 28 July 2014. A new section 94B, inserted by section 17(3) of the Immigration Act 2014, provides a power to remove a person from the UK pending her deportation appeal, where such removal would not be unlawful. The provision specifies that the ground on which such power may be exercised is that removing the person to the country or territory to which the Home Office proposes to remove her would not cause her to face ‘serious irreversible harm.’ (s. 94B(3)).
The stated purpose of the new provision was to speed up the appeals process and prevent its abuse (§31-35 of Kiarie). Having briefly reviewed the legal framework applicable to the case of Kiarie, I will turn to the analysis of the decision.
The first Appellant, Mr Kiarie, resisted deportation relying on paragraph 399A of the immigration rules on the basis that he had been residing in the UK since the age of 3 and been granted indefinite leave to remain in 2004 before being convicted for serious drugs offences and sentenced in January 2014 to a suspended sentence of two years’ imprisonment, which was activated in May 2014 following further convictions. A notice of liability to deportation was issued on 22 July 2014. Deportation and certification under section 94B followed on 10 October 2014.
The second Appellant, Mr Byndloss, resisted deportation relying on paragraph 399(a) and (b). He was married to a British national with whom he had four children. He also had three or four other children who did not live with him. He was sentenced to three years’ imprisonment, also for serious drugs offences, in May 2013. Notice of liability to deportation was issued on 21 June 2013. More than a year later, on 6 October 2014, the Secretary of State rejected Mr Byndloss’s human rights claim. A deportation order was made. In the interim period, section 94B had come into force. The Secretary of State certified Mr Byndloss’s claim. The Court of Appeal upheld section 94B as lawful and proportionate (§34). The appeal reached the Supreme Court by way of judicial review proceedings.
Although the Supreme Court suggested that the appellants may have difficulties in succeeding in their human rights claims at appeal (§33, §55), it held that this was not the question under consideration. Rather…
The Supreme Court found section 94B unlawful. In its decision, Wilson J stated that it is the responsibility of the Tribunal to guard against the drawing out or abuse of the appeals process; and that, while there may be a public interest in the early removal of a deportee to prevent potential re-offending, such a risk may be outweighed by the ‘broader public interest’ in appeals being effective. This reasoning is based on the relevant case-law of the European Court of Human Rights.
The Court heard considerable evidence concerning the effectiveness of a human rights appeal brought from overseas. The Court’s principal concerns were the ability of deportees to secure, fund, and instruct legal representatives from abroad, the ability to obtain expert evidence where relevant, and, crucially, the ability of the individual to give effective oral evidence, whether in person (which was deemed, in effect, impossible); or by way of video-link (which was impracticable in the vast majority of cases).
Wilson J determined that, in practice, there were such significant barriers facing an Appellant in effectively presenting her human rights appeal from overseas, that the requirement in section 94B will result in a breach to the procedural requirements of Article 8 ECHR, that is the right to an effective appeal against a decision affecting an individual’s right to respect for their private and family life. The appeal was allowed on this basis. Carnwath LJ concurred, albeit with a ‘slightly different emphasis’.
The result is that the Home Office can no longer rely on the ‘deport first, appeal later’ provisions. This is a significant decision on its own right but also because it halted the possibility that the provision is extended to non-deportation cases, as originally envisaged. The Home Office cannot now do this without inviting further judgments declaring the relevant statute incompatible with the European Convention of Human Rights. In practice, the decision requires that an appeal against a decision affecting a person’s family and private life can only effectively be brought from within the UK, and so only an in-country appeal is an effective remedy in these circumstances. The Home Office would have preferred to change the system so that most of these appeals were brought from outside of the country (the cynics amongst us would add, if at all).
Note: Throughout this blog post, the feminine included the masculine, and the singular included the plural.
How to cite this blog post (Harvard style)
Jones, B. (2018) The End of ‘Deport First, Appeal Later’: The Decision in Kiarie and Byndloss. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/03/end-deport-first (Accessed [date]).