R QR v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 17 January 2020 |
| Neutral Citation | [2020] EWHC 363 (Admin) |
| Docket Number | No. CO/4355/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 January 2020 |
[2020] EWHC 363 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Linden
No. CO/4355/2017
Mr M. Gill QC and Mr R. De Mello appeared on behalf of the Claimant.
Mr S. Kovats QC appeared on behalf of the Defendant.
Introduction
This is an application (a) to lift the stay of the claimant's application for judicial review which was ordered by Supperstone J on 5 September 2018, and (b) for an order that the Secretary of State take the necessary steps to return the claimant to the United Kingdom.
Mr Manjit Gill QC appeared with Mr de Mello for the claimant and Mr Steven Kovats QC for the Secretary of State. I am grateful to all counsel for their submissions in this case.
Mr Gill agreed that logically I should consider whether to lift the stay first. It would only be if I am persuaded that I should do so that the question of ordering the claimant's return on an interim basis would arise. He also agreed that the question whether to lift the stay turned on an application of the overriding objective, albeit he rightly pointed out that the factors which went to the two limbs of his application overlapped with each other and that I should look at the position in the round. I have done so.
Mr Gill also confirmed that he is not seeking a stay of the claimant's appeal before the First-tier Tribunal (which I will refer to as the “FTT”) and that no application for a stay of that appeal has been made.
The legal context
The broad legal context for this application is set out in [6]–[9] of the judgment of the Court of Appeal in the present case ( [2018] EWCA Civ 1413):
“6. Section 32 of the UK Borders Act 2007 makes provision for ‘automatic deportation’: subject to section 33, the Secretary of State must make a deportation order in respect of a ‘foreign criminal’, i.e. a person who is not a British citizen, who has been convicted in the UK of an offence, and who has been sentenced to a period of imprisonment of at least 12 months for any offence or for a term of any length for a specified offence. Section 33 provides for a number of exceptions, including where removal would breach a person's rights under the European Convention on Human Rights (‘the ECHR’) (section 33(2)(a)).
7. Section 82(1)(b) of the 2002 Act provides a person with a right to appeal to the First-tier Tribunal from a decision to refuse a human rights claim made by that person. Section 92 of that Act determines the place from which such an appeal may be brought or continued. Generally, by section 92(3), it must be brought and may be continued in the UK (‘an in-country appeal’). However, section 92(3)(a) and (6) provide that, where the Secretary of State has certified a claim under specified provisions, including section 94(1) and section 94B, then the claim must be brought from outside the UK or, if brought inside, continued outside (‘an out-of-country appeal’). References in this judgment to ‘section 94(1)’ and ‘section 94B’ are to those sections of the 2002 Act.
8. Under section 94(1), the Secretary of State may certify a human rights claim if he considers it is ‘clearly unfounded’. Under section 94B, the Secretary of State may certify a human rights claim if he considers that, despite the appeals process not having begun or not having been exhausted, removing the particular individual from the UK would not be unlawful under section 6 of the Human Rights Act 1998, i.e. not in breach of the ECHR. Section 94B(2) provides that the grounds upon which the Secretary of State may certify a claim include where the applicant would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country to which it is proposed to remove him.
9. Thus, certification under section 94B effectively removes the right to an in-country right of appeal in respect of the refusal of a claim that removal from the UK would be a breach of article 8 of the ECHR, leaving the applicant to pursue any appeal out-of-country.”
I respectfully add that by section 81 and 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a human rights claim in this context is essentially a claim that deportation would breach the claimant's rights under the European Convention on Human Rights (“ECHR”).
The facts
The facts, at least as they stood in March 2018, are set out more fully at [13]–[30] of the judgment of the Court of Appeal in the present case. I do not need to repeat them in as much detail here.
The claimant is a citizen of Pakistan. He is also what is termed a “foreign criminal”, having pleaded guilty to blackmail at Wood Green Crown Court and having been sentenced to 16 months' imprisonment, i.e. a sentence of more than 12 months, for immigration and deportation purposes. On 18 April 2016, pursuant to section 94B of the 2002 Act, the Secretary of State certified a human rights claim which had been made by the claimant and served a deportation order on him.
On 9 May 2016, the claimant lodged a judicial review which challenged this section 94B certificate and the refusal of the leave to remain.
On 2 August 2016, permission to apply for judicial review was refused by Upper Tribunal Judge Blum.
On 10 February 2017, the Secretary of State refused a further human rights claim by the claimant and certified it pursuant to section 94B.
On 24 February 2017, permission to appeal in the judicial review proceedings as refused by Irwin LJ, who also refused a claim for interim relief preventing the claimant's deportation. On 28 February 2017, therefore, the claimant was deported to Pakistan.
On 13 March 2017, the claimant lodged an out-of-country appeal in the FTT against the refusal of his human rights claim pursuant to sections 81 and 82(1)(b) of the 2002 Act. The issues in that appeal arise out of the decision of the Supreme Court in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] 1 WLR 2380, which in broad terms held that the infringement of an appellant's rights under Article 8 of the ECHR occasioned by deporting him, following a section 94B certificate, requires the Secretary of State to prove that the right of appeal to the FTT is effective on the facts of the particular appeal, despite the fact that the appeal has to be conducted by the appellant from abroad. This will be a heavy burden for the Secretary of State to discharge.
In the claimant's FTT appeal, he therefore argues, in very broad terms, that his deportation infringes Article 8 ECHR and that the procedure by which his appeal is heard must ensure that the appeal is effective to safeguard his human rights, despite the fact that he is out of the country. His case is that the FTT appeal process cannot be an effective process or, at least, will not be an effective process and that the FTT should therefore allow his appeal.
Returning to the chronology, on 25 September 2017, the claimant lodged a second claim for judicial review challenging the second section 94B certificate. The issues in the judicial review are similar in that they challenge the issuing of the certificate as being contrary to Article 8 ECHR and advance arguments as to why an appeal to the FTT would not be effective to protect those rights. The bases on which it is said that an appeal would not be effective are very similar to the arguments which the claimant is running in the FTT, albeit the FTT will not have the power to quash the section 94B certificate and will approach the issues on that basis.
On 8 December 2017, permission was refused in the second set of judicial review proceedings by Mr Nicholas Padfield QC sitting as a Deputy High Court Judge. However, on 21 June 2018, the Court of Appeal granted permission to proceed with the claimant's second judicial review, but not the first, and remitted the matter to the Administrative Court for directions, taking into account the claimant's appeal to the FTT. The Court of Appeal also refused the claimant's application for an order that he be returned to the UK on an interim basis.
It is worth noting what Mr Gill QC and the Court of Appeal had to say about where the issues raised by the claimant in the judicial review proceedings and in his FTT appeal were best dealt with. At [50]–[58], the Court of Appeal dealt with the claimant's application for interim relief, which it refused. In that context and as one of the reasons for refusing interim relief, at [53(xiv)] Hickinbottom LJ said this:
“Mr Gill accepted that the First-tier Tribunal not only has the jurisdiction to consider whether the proceedings before it are compliant with the procedural obligations of article 8, but the tribunal has an obligation to ensure compliance; and he accepted that the tribunal is the optimal forum for determining such an issue. I firmly agree...
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