R (on the application of Wellington Paul Watson) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | O'Connor |
| Judgment Date | 05 April 2018 |
| Neutral Citation | [2018] UKUT 165 (IAC) |
| Date | 05 April 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2018] UKUT 00165 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Mr Justice Lane, President
Upper Tribunal Judge O'Connor
and
Having considered all documents lodged and having heard the parties' respective representatives, Ms S Naik QC and Mr B Hoshi, of counsel, instructed by Duncan Lewis Solicitors, on behalf of the applicant and Mr S Kovats QC, of counsel, instructed by the Government Legal Department, on behalf of the first respondent, and there being no attendance on behalf of the second respondent, at a hearing at Field House, London on 8 March 2018.
R (on the application of Watson) v (1) Secretary of State for the Home Department and (2) First-tier Tribunal (Extant appeal: s94B challenge: forum)
(1) Where an appellant's appeal has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 and the appellant has been removed from the United Kingdom pursuant to that certificate, the First-tier Tribunal is the forum for determining whether, in all the circumstances, the appeal can lawfully be decided, without the appellant being physically present in the United Kingdom. The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).
(2) If the First-tier Tribunal stays the appeal proceedings because it concludes that they cannot progress save in a manner which breaches the procedural rights safeguarded by Article 8, then it is anticipated the Secretary of State will promptly take the necessary action to rectify this position. If this does not happen, then an application for judicial review can be made to the Upper Tribunal to challenge the Secretary of State's decision and compel him to facilitate the appellant's return.
(3) If the First-tier Tribunal decides that the appeal process is Article 8 compliant, the Tribunal's substantive decision will be susceptible to challenge, on appeal to the Upper Tribunal, on the ground that the Tribunal was wrong so to conclude.
Judge O'Connor
This case raises issues as to the correct approach in an application for judicial review made to the Upper Tribunal challenging the maintenance of a certificate issued by the Secretary of State for the Home Department (“SSHD”) pursuant to section 94B of the Nationality, Immigration and Asylum Act 2002 (“2002 Act”), in cases where (i) that certificate was issued prior to the Supreme Court's decision in Kiarie v SSHD; R (Byndloss) v SSHD [2017] UKSC 42; [2017] 1 WLR 2380 (“ Kiarie and Byndloss”), (ii) the applicant was subsequently removed from the United Kingdom and (iii) the applicant has an extant appeal before the First-tier Tribunal against a decision, made prior to removal, refusing a human rights claim made on Article 8 European Convention on Human Rights (“ECHR”) grounds.
The applicant applies for permission to challenge the SSHD's ongoing decisions, most recently documented in letters of the 22 December 2017 and 10 January 2018, to:
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(a) maintain the section 94B certification of his Article 8 human rights claim; and
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(b) refuse to facilitate his return from Jamaica to the UK in order that he may engage in his pending appeal before the First-tier Tribunal.
The applicant also seeks permission to challenge the First-tier Tribunal's decision of 15 January 2018 refusing to stay the hearing of his appeal pending the final resolution of the instant application for judicial review. The appeal is listed for hearing on the 25 and 26 June 2018.
By way of interim relief, the applicant requests an order that his appeal proceedings before the second respondent be stayed pending resolution of this application.
By way of substantive relief, the applicant seeks:
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(i) An order quashing the section 94B certification of his human rights claim;
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(ii) A declaration that the first respondent failed to lawfully consider the exercise of her discretion in making and/or maintaining the section 94B certification;
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(iii) A mandatory order requiring the first respondent to reconsider her decision on the section 94B certification in accordance with the law;
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(iv) A mandatory order requiring the first respondent to facilitate and fund his return from Jamaica to the UK;
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(v) A declaration that the first respondent breached/or continues to breach his rights under Article 8 ECHR;
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(vi) A declaration that the first respondent breached/or continues to breach the rights of his children and/or failed to take account of the children's best interests in making and/or maintaining the section 94B certification;
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(vii) An order quashing the decision of the second respondent refusing to stay the applicant's appeal pending the resolution of these judicial review proceedings;
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(viii) Damages under section 8 Human Rights Act 1998.
The applicant was born on 3 August 1978 and is a national of Jamaica.
His eldest son, RW, was born in the United Kingdom on 1 September 1997 to SY. On 13 May 2000 the applicant was refused leave to enter the United Kingdom as a visitor but was granted temporary admission until the following day. He failed to report as required. On 16 December 2000 the applicant and SY married. They separated in 2003.
In 2004 the applicant began a relationship with JH. JW was born of that relationship in May 2008. In 2006 the applicant made an application to the SSHD for indefinite leave to remain as the father of RW, but such application was refused by the SSHD in November 2009. An appeal against this decision was dismissed by the First-tier Tribunal on 27 April 2010 and, thereafter, by the Upper Tribunal on 28 September 2010.
On 4 July 2013 the SSHD granted the applicant limited leave to remain in the United Kingdom for 30 months, as a consequence of his relationship with JW — it being concluded that the applicant had a parental relationship with JW and that it was not reasonable to expect JW to leave the United Kingdom. However, on 13 February 2014 the applicant was convicted of supplying Class A controlled drugs and was sentenced to fourteen months' imprisonment. This caused the SSHD to serve notice on the applicant on 24 May 2014 of his liability to deportation. This notice alerted the applicant to the fact that he was required to submit any reasons why he should not be deported, with documentary evidence in support where available.
In response, on 19 June 2014 the applicant raised a human rights claim relying upon his relationship with his children and JH. On 23 February 2015, the SSHD made a decision to deport the applicant and also refused the applicant's human rights claim, detailed reasons being given for the latter in a twelve-page decision letter of the same date. This decision letter concluded with a consideration of whether to certify the applicant's human rights claim under section 94B of the 2002 Act, the following being said:
“Consideration has been given to whether your Article 8 claim should be certified under Section 94B of the 2002 Act. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. The Secretary of State does not consider that such a risk exists in light of the above. Therefore, it has been decided to certify your Article 8 claim under Section 94B and any appeal you may bring can only be heard once you have left the United Kingdom. …
Appeal
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You may appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against the decision to refuse your human rights claim under Section 82(1) of the 2002 Act. You may only exercise your right of appeal from outside the United Kingdom.”
The applicant brought a challenge to the section 94B certification by way of judicial review proceedings issued on 24 March 2015 (JR/3490/2015). Within the confines of the judicial review proceedings he put forward further evidence supporting his Article 8 claim. This led the SSHD to issue a supplementary decision letter on 30 April 2015, in which she refused to treat the further evidence as a fresh claim pursuant to paragraph 353 of the Immigration Rules, refused to revoke the deportation order and maintained the section 94B certification. In relation to the latter decision the following was stated:
“Your claims and evidence have been considered, but it is not accepted that you have demonstrated that removing you prior to the hearing of any appeal against a decision to make you the subject to a deportation order would give rise to a risk of serious irreversible harm for you, your children, or their respective mothers.”
Permission to bring judicial review proceedings challenging the decisions of 23 February and 30 April 2015 was refused on the papers by Upper Tribunal Judge Perkins on 18 August 2015. A decision on the oral renewed application for permission was subsequently stayed to await the Court of Appeal's decision in Kiarie and Byndloss. Thereafter, the matter came before Upper Tribunal Judge Blum on 22 June 2016 and, after having heard Counsel for both parties, Judge Blum refused permission to bring judicial review proceedings on the basis although the certification decision was unlawful as a consequence of the SSHD misdirecting herself to the appropriate legal consideration, it had not been...
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