R, on the application of Yusuf Arman v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 13 May 2021 |
| Neutral Citation | [2021] EWHC 1217 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/954/2021 (Arman) and CO/957/2021 (GY) |
| Date | 13 May 2021 |
[2021] EWHC 1217 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Heard remotely via Microsoft Teams
Mr Justice Mostyn
Case Nos: CO/954/2021 (Arman) and CO/957/2021 (GY)
and
Ramby de Mello (instructed by Thompson & Co Solicitors) for the Claimant in Arman
Manjit Gill QC and Priya Solanki (instructed by Duncan Lewis Solicitors) for the Claimant in GY
Steven Kovats QC (instructed by the Government Legal Department) for the Defendant in both cases
Hearing date: 5 May 2021
Approved Judgment
I certify pursuant to the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 that in other proceedings this judgment may be cited and/or included in a bundle of authorities.
Before me are the applications for permission to pursue judicial review proceedings by Yusuf Arman (YA) and GY (who has been granted anonymity).
YA was born in Turkey in 1971, and came to the UK in 1973 with his family. He is a Turkish citizen but was granted indefinite leave to remain in the UK in 1976. He got married in 1992, but the marriage did not last. He has accumulated no fewer than 33 convictions for 96 offences spanning the period from April 1991 to November 2015. On 6 May 2016, it was decided that he should be deported. YA then made an asylum and protection claim and a human rights claim (after which he continued to commit further criminal offences). On 31 March 2017 the Home Secretary (a) refused YA's asylum and protection claim and certified them under s.94 of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded; (b) refused his human rights claim and certified it under s.94B of that 2002 Act; and (c) made a deportation order. YA was deported to Turkey on 10 June 2017. He has been living in Turkey since that date. Shortly after his arrival in Turkey YA appealed against his deportation. The delay in dealing with this appeal has been extraordinary. It has been derailed by the commencement by YA of two sets of judicial review proceedings and also impacted by the COVID-19 pandemic.
YA says he has not been able to find employment in Turkey, and that he has been ‘sofa-surfing’ with friends and family, or sleeping on the street. He suffers from various conditions, including diabetes and asthma, and he has had suicidal thoughts since his deportation. He says he does not speak Turkish and has difficulty understanding and communicating with others. YA confirms that by his telephone he has regular contact via public Wi-Fi with his family in England.
YA commenced judicial review proceedings challenging the s.94B certification in April 2018. Permission was refused on 23 May 2018. On 26 June 2020 this application for judicial review, seeking essentially the same thing, was filed. Permission was refused on the papers by UTJ Pitt on 7 September 2020, and, curiously, for a second time by Swift J on 29 March 2021. YA has exercised his right to an oral renewal of his application and that is the matter before me.
GY was born in Turkey in 1987, and moved to the UK in around 1996 with his family. He is a Turkish citizen, but was granted indefinite leave to remain in 2004. He got married in 2008, and has two children with his wife. He too has accumulated numerous convictions, including for grievous bodily harm under s.20 of the Offences against the Person Act 1861. On 22 October 2015, it was decided that he should be deported. He had by then made a human rights claim. On 29 October 2015 the Home Secretary refused the human rights claim and certified it under s.94B. GY was deported to Turkey on 9 March 2017. He appealed against his deportation on 23 May 2017. The delay in dealing with his appeal has been equally extraordinary. However, a two-day hearing fixed for 7 & 8 April 2020 was derailed by these judicial review proceedings.
He commenced these judicial review proceedings challenging the s.94B certification on 30 September 2020. On 29 March 2021 Swift J refused permission on the papers. GY has exercised his right to an oral renewal of his application and that matter is also before me.
Since his deportation GY has been living in a small village named Karatavuk, in the north-west of Turkey, with his grandmother. The nearest town to Karatavuk is Akcakoca, which is about 20km away. His wife and children remain living in the UK.
In the period since GY's arrival in Karatavuk, the village has gone from having just one landline to having mobile phone coverage, which would appear to be mainly a 3G data network, but in places 4G, provided by Turk Telecom. Now, GY is able to communicate with his solicitor and presumably would be able to tether a laptop to his telephone to enable him to participate in his appeal reasonably.
The grounds relied on by both claimants are the same, to all intents and purposes. It is for this reason that the two renewal applications have been linked and heard together. The grounds are as follows:
i) The s.94B certifications, with the consequence that any appeal must be heard out-of-country, were a clear breach of Article 8 of the European Convention on Human Rights (“the ECHR ground”);
ii) The 1963 EEC-Turkey Association Agreement, as supplemented by the Additional Protocol of 23 November 1970 and Decision 1/80 of its supervisory Association Council, together with EU law principles of proportionality, have the legal effect of overriding these statutory provisions and of granting the claimants a deportation-suspensory in-country right of appeal (“the Ankara Agreement ground”). These EU provisions are applicable in this case because both the relevant events, and the making of the claims, occurred before the completion of Brexit on 31 December 2020.
Both grounds are strongly disputed by Mr Kovats QC on behalf of the Home Secretary. In addition, he says that quite apart from the lack of merits of the two grounds, the applications for judicial review are grossly out of time and for that reason, if none other, permission should be refused in both cases.
GY has advanced a further ground under the GDPR which in my judgment is wholly misconceived, and which I deal with shortly below.
The ECHR ground
In her speech to the Conservative party conference on 30 September 2013 the then Home Secretary, the Rt. Hon. Theresa May, said:
“Where there is no risk of serious and irreversible harm, we should deport foreign criminals first and hear their appeals later.”
In R (on the applications of) Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42 at [31] Lord Wilson quoted this pledge and went on to explain with his customary clarity the statutory arrangements which were put in place to give effect to it. First, at [10] – [14], he explained the features of the statutory regime as it was prior to 28 July 2014:
i) Section 3(5)(a) of the Immigration Act 1971 states that a person who is not a British citizen is liable to deportation from the UK if the Home Secretary deems his deportation to be conducive to the public good: [10].
ii) Section 32(4) of the UK Borders Act 2007 states that, for the purpose of s.3(5)(a) of the 1971 Act, the deportation of a foreign criminal is conducive to the public good. Section 32(1) and (2) defines a foreign criminal as a person who is not a British citizen and who is convicted in the UK of an offence for which he is sentenced to a period of imprisonment of at least 12 months: [11].
iii) Section 32(5) of that 2007 Act states that, unless an exception specified in s.33 applies, and unless his removal would breach his rights under the ECHR, the Home Secretary must make a deportation order in respect of a foreign criminal: [12].
iv) Section 82(1) and (3A) of the Nationality, Immigration and Asylum Act 2002 at that time provided that, where a deportation order in respect of a person was stated to have been made in accordance with s.32(5) of the 2007 Act, he might appeal to the First-tier Tribunal (“FTT”). By s.82(4), however, the right of appeal was subject to limitations: [13].
v) Section 92(1) of the 2002 Act stated that an appeal under s.82 could not be brought while the appellant was in the UK unless it fell within one of the specified exceptions. Section 92(4)(a) gave an exception where the appellant had made a human rights claim while in the UK. But s.94(1) and (2) gave an exception to that exception by providing that an appellant could not rely on s.92(4)(a) to bring his appeal from within the UK if the Home Secretary certified that his human rights claim was clearly unfounded: [14].
To give effect to the conference pledge, s.17(3) of the Immigration Act 2014 was swiftly passed. This introduced s.94B into the 2002 Act, and rewrote s.92. It came into force on 28 July 2014. The new s.92(3)(a) stated that where pursuant to s.94B the Home Secretary had certified a human rights claim made by a person liable to deportation (“P”), his appeal could be brought only from outside the UK.
To certify a human rights claim under s.94B the Home Secretary must have concluded that despite the appeals process not having even started or, if begun, not having been exhausted, the removal of P to the proposed overseas place, pending the outcome of P's appeal, would not be unlawful under the ECHR (s.94B(2)). Section 94B(3) stated, by way of example, that the grounds upon which the Home Secretary 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...
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