The Queen (on the application of Kevin Kinyanjui Kiarie) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards,Lord Justice Elias,Lord Justice McCombe
Judgment Date13 October 2015
Neutral Citation[2015] EWCA Civ 1020
Docket NumberCase No: C2/2015/1004 and C4/2015/0213

[2015] EWCA Civ 1020

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

Upper Tribunal Judge Kopieczek

AND ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Hon Mr Justice Males

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Lord Justice Elias

and

Lord Justice McCombe

Case No: C2/2015/1004 and C4/2015/0213

Between:
The Queen (on the application of Kevin Kinyanjui Kiarie)
Appellant
and
The Secretary of State for the Home Department
Respondent
And between:
The Queen (on the application of Courtney Aloysius Byndloss)
Appellant
and
The Secretary of State for the Home Department
Respondent

Richard Drabble QC and Joseph Markus (instructed by Turpin Miller LLP) for Mr Kiarie

Manjit Singh Gill QC, Ramby de Mello, Tony MumanandJessica Smeaton (instructed by J.M. Wilson Solicitors LLP) for Mr Byndloss

Lord Keen of Elie QC (Advocate General for Scotland), Lisa GiovannettiQC andSusan Chan (instructed by The Government Legal Department) for the Secretary of State

Lord Justice Richards
1

These two appeals, which were heard together, concern the interpretation and application of section 94B of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), as inserted by the Immigration Act 2014 ("the 2014 Act"). Where a person liable to deportation has had a human rights claim refused by the Secretary of State but has a right of appeal against that decision, section 94B empowers the Secretary of State to certify the claim if she considers that removal of the person pending the outcome of such an appeal would not be unlawful under section 6 of the Human Rights Act 1998. The effect of certification is that any appeal must be brought from outside the United Kingdom.

2

Both appellants are liable to deportation by reason of serious criminal offending. They each claimed that deportation would be in breach of their rights to private and/or family life under article 8 of the European Convention on Human Rights. In each case, the Secretary of State decided to make a deportation order, refusing the human rights claim and certifying the claim under section 94B. In the case of Mr Kiarie, the decision letter was dated 10 October 2014. In the case of Mr Byndloss, the original decision letter was dated 6 October 2014 but it was later superseded by a supplementary decision letter dated 3 September 2015, taking into account further evidence and representations.

3

The appellants brought judicial review proceedings to challenge the section 94B certifications. Mr Kiarie's claim was brought in the Upper Tribunal. Permission to apply for judicial review was refused by Upper Tribunal Judge Gill on the papers and by Upper Tribunal Judge Kopieczek on an oral renewal. Mr Byndloss's claim was brought in the Administrative Court. Permission to apply for judicial review was refused by Hickinbottom J on the papers and by Males J on an oral renewal. In each case, permission to appeal to the Court of Appeal was granted at an oral hearing before the Master of the Rolls and Underhill LJ. The formal question on the appeal, therefore, is whether the court or tribunal below ought to have granted permission to apply for judicial review. It was common ground before us, however, that if we took the view that such permission ought to have been granted, the appropriate course would be for us to grant permission, reserve the substantive judicial claim to ourselves and proceed to determine it on the basis of the relevant evidence before the court and the submissions we have heard.

4

There is no dispute that a decision to certify under section 94B is amenable to judicial review. Nor, in the event, is there any real dispute about the correct interpretation of section 94B, though that interpretation is not accurately reflected in the Secretary of State's guidance to caseworkers. The main issues in each case are whether, in allowing the appellant's removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certification was in breach of (i) the procedural guarantees inherent in article 8 and/or (ii) the appellant's substantive rights under article 8. The first question focuses on the effectiveness and fairness of an out of country appeal in deportation cases. The second question focuses on the proportionality of any interference with the appellants' private and/or family life pending determination of an appeal.

5

The evidence before the court has grown substantially in the course of the proceedings and includes a substantial body of material filed at a very late stage. The court received all the material de bene esse but, as explained below, I am satisfied that some of it is irrelevant to the issues we have to decide.

The legislation

6

Section 94B of the 2002 Act reads as follows:

" 94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a person ('P') who is liable to deportation under –

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) …

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State 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 removed to the country or territory to which P is proposed to be removed."

That section was brought into force with effect from 28 July 2014 and was in force at the date of each of the decisions to which these proceedings relate.

7

The effect of certification under section 94B is that any appeal against the decision on the human rights claim must be brought from outside the United Kingdom:

i) In relation to the period from 20 October 2014, that effect was clear on the face of the version of section 92 substituted by a provision of the 2014 Act brought into force on that date: section 92(3) of the substituted version provides that "In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if – (a) the claim to which the appeal relates has been certified under … section 94B …".

ii) In relation to the period between 28 July and 20 October 2014, the period during which the original decision in each of the present cases was made, the same result was achieved by Article 4 of the Immigration Act 2014 (Commencement No.1, Transitory and Saving Provisions) Order 2014 and was thereafter maintained by Article 15 of the Immigration Act 2014 (Commencement No.3, Transitional and Savings Provisions) Order 2014.

I am appalled by the complexity of that legislative jigsaw but there is no dispute that the result is as stated.

The guidance

8

The Secretary of State has issued guidance to caseworkers on the application of section 94B. The version in force at the date of the original decision letters under challenge was Version 1, dated July 2014 and headed "Section 94B certification guidance for Non European Economic Area deportation cases". I pick out three points from it:

i) The guidance indicated, in paragraphs 3.2–3.3, that the Government was seeking initially to "test" the newly acquired power and that, for the initial test phase, certification should normally only be considered in circumstances where (the individual was aged 18 or over at the time of the deportation decision, and (ithe individual "does not have a parental relationship … with a dependent child or children".

ii) It was made clear in paragraphs 3.5–3.6 that the power under section 94B should be used only after it had been decided that other certification powers, including the power to certify a claim under section 94 as "clearly unfounded", were not appropriate. What this means is that certification under section 94B would fall for consideration only in cases where the relevant human rights claim was accepted to be arguable and thus to engage a right of appeal.

iii) It was also made clear in paragraph 3.5 that it would not be appropriate to use the power in section 94B to certify claims made on the basis of article 2 or article 3, since removal in circumstances where a claim under those articles was not clearly unfounded would necessarily carry with it a real risk of serious irreversible harm.

iv) The general tenor of the guidance was that in every case the relevant question when deciding whether to certify was whether removal pending any appeal would create a real risk of serious irreversible harm. For example, paragraph 1.2 stated that section 94B "allows a human rights claim to be certified … where it is considered that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return". Paragraph 3.9 stated that where all that remained in an appeals process was an article 8 claim "and there is not a real risk of serious irreversible harm, and the person is otherwise removable (e.g. a travel document...

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