The Queen (on the application of Kevin Kinyanjui Kiarie) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Elias,Lord Justice McCombe |
| Judgment Date | 13 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1020 |
| Docket Number | Case No: C2/2015/1004 and C4/2015/0213 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 October 2015 |
[2015] EWCA Civ 1020
COURT OF APPEAL
Richards, Elias and McCombe LJJ
Mr R Drabble QC and Mr J Markus instructed by Turpin Miller LLP, for Mr Kiarie;
Mr M Singh Gill QC, Mr R de Mello, Mr T Muman and Ms J Smeaton instructed by JM Wilson Solicitors LLP, for Mr Byndloss;
Lord Keen of Elie QC (Advocate General for Scotland), Ms L Giovannetti QC and Ms S Chan instructed by the Government Legal Department, for the Secretary of State.
Bugdavcay v Secretary of State for the Home Department [1986] UKHL 3; [1987] AC 514; [1987] 2 WLR 606; [1987] 1 All ER 940; [1987] Imm AR 250
Lord Chancellor v Detention ActionUNK [2015] EWCA Civ 840; [2015] 1 WLR 5341
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MK (section 55 — Tribunal options) Sierra Leone [2015] UKUT 223 (IAC)
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R v Secretary of State for the Home Department ex parte Khawaja [1983] UKHL 8; [1984] AC 74; [1983] 2 WLR 321; [1983] 1 All ER 765; [1982] Imm AR 139
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R (on the application of Giri) v Secretary of State for the Home DepartmentUNK [2015] EWCA Civ 784; [2015] WLR(D) 341
R (on the application of Gudanaviciene) v Director of Legal Aid CaseworkUNK [2014] EWCA Civ 1622; [2015] 1 WLR 2247; [2015] 3 All ER 827
R (on the application of Lim and Siew) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 773; [2008] INLR 60
R (on the application of Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60; [2015] AC 945; [2014] 3 WLR 1404; [2015] 2 All ER 453
R (on the application of MK (Tunisia)) v Secretary of State for the Home DepartmentUNK [2010] EWHC 2363 (Admin)
R (on the application of PE (Cameroon)) v Secretary of State for the Home DepartmentUNK [2009] EWCA Civ 119; [2009] INLR 284; [2009] QB 686; [2009] 2 WLR 1370
R (on the application of RK (Nepal)) v Secretary of State for the Home DepartmentUNK [2009] EWCA Civ 359; [2010] Imm AR 21; [2010] INLR 37
SS (Nigeria) v Secretary of State for the Home DepartmentUNK [2013] EWCA Civ 550; [2014] WLR 998, [2013] Imm AR 1106
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; [2011] 2 WLR 148; [2011] 2 All ER 783; [2011] Imm AR 395; [2011] INLR 369
Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] WLR 3690; [2014] 1 All ER 638; [2014] Imm AR 479; [2014] INLR 262
Borders, Citizenship and Immigration Act 2009, section 55
European Convention on Human Rights, Articles 2, 3 & 8
Human Rights Act, section 6
Immigration Act 2014 (Commencement No 1, Transitory and Saving Provisions)
Order 2014, section 4
Immigration Act 2014 (Commencement No 3, Transitory and Saving Provisions)
Order 2014, section 15
Nationality, Immigration and Asylum Act 2002, sections 82, 92, 94 & 94B
Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber)
Rules 2014, rule 15
UK Borders Act 2007, sections 32 & 33
Human rights — Article 8 of the ECHR — procedural guarantees — proportionality — procedure and process — certification — out-of-country appeals — section 94B of the 2002 Act — statutory condition — inaccurate and misleading Home Office guidance
These conjoined appeals concerned the interpretation of section 94B of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), which came into effect on 28 July 2014. Where a person liable to deportation had a human rights claim refused and had a right of appeal against that decision, section 94B empowered the Secretary of State for the Home Department to certify the claim if she considered that the 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 1998 Act’). The effect of certification was that any appeal must be brought from outside the United Kingdom.
The Claimants each possessed indefinite leave to remain in the United Kingdom. K, a citizen of Kenya, had lived in the United Kingdom along with his parents and siblings since the age of three. B, a citizen of Jamaica, entered the United Kingdom as a visitor and subsequently married a British citizen. He had four children with his wife and a further four children by two other partners. The Claimants were liable to deportation under section 32 of the UK Borders Act 2007 (‘the 2007 Act’) by reason of serious criminal offending attracting custodial sentences longer than 12 months. They both argued that deportation would be in breach of their rights under Article 8 of the ECHR. In October 2014, in each case the Secretary of State made a deportation order, refused the human rights claim, and certified the claim under section 94B of the 2002 Act. In B's case, she issued a supplementary decision letter in September 2015 taking into account further representations. The Claimants brought judicial review proceedings to challenge the certification decisions but permission was refused. On appeal against the refusal of permission, the Claimants submitted that an out-of-country appeal would not provide them with fair and effective involvement in the appellate process and would not meet the procedural guarantees inherent in Article 8 of the ECHR. They further argued that removal from the United Kingdom pending their appeal would interfere with their substantive rights under Article 8 of the ECHR.
Held, allowing the appeals but refusing the substantive applications:
(1) The central provision in section 94B of the 2002 Act was in subsection (2), which provided that the power to certify only arose where removal pending the outcome of the appeal would not be unlawful under section 6 of the 1998 Act. Under section 94B(3) a ground for certification was that the person would not “face a real risk of serious irreversible harm if removed”. That ground did not displace the statutory condition in section 94B(2) and did not constitute a surrogate for that condition. The Home Office guidance entitled “Section 94B certification guidance for Non European Economic Area Deportation Cases” (‘the guidance’) was inaccurate and misleading, because it focused on the criterion of serious irreversible harm in subsection (3) and failed to focus on the central provision in subsection (2) (paras 8 and 34 – 36).
(2) Consideration needed to be given to whether removal pending deportation would interfere with Article 8 rights, and if so, whether removal for that interim period met the requirements of proportionality. In general terms, and subject to specific factors such as the risk of re-offending, it might be thought that less weight attached to the public interest in removal in the context of section 94B than when considering the underlying issue of deportation for the longer term. The very fact that Parliament had chosen however to allow removal for that interim period, provided that it did not breach section 6 of the 1998 Act, showed that substantial weight must be attached to the public interest in that context also. Parliament had carried through the policy of the deportation provisions of the 2007 Act into section 94B. In deciding the issue of proportionality in an Article 8 case, the public interest was not a trump card but it was an important factor in favour of removal (paras 38 and 44).
(3) An out-of-country appeal was less advantageous to an applicant than an in-country appeal. Article 8 did not require an applicant to have access to the best possible appellate procedure or even the most advantageous procedure available. It required access to a procedure that met the essential requirements of effectiveness and fairness. The Secretary of State was entitled to rely on the specialist immigration judges within the tribunal system to ensure that applicants received effective access to the decision making process and that the process was fair, irrespective of whether the appeal was brought in or out of country. If particular procedures were needed in order to enable an applicant to present his case properly or for his credibility to be properly assessed there was sufficient flexibility within the system to ensure that such procedures were put in place. That applied most obviously to the provision for video conferencing or, if truly necessary, the issue of a witness summons. There were difficulties for any applicant, particularly if unrepresented, in preparing for an appeal, but those difficulties were not much greater where the appeal was brought out-of-country so as to amount to a denial of effective participation in the decision making process or to render the procedure unfair (paras 64 – 66).
(4) There was no merit in the suggestion that removal would unfairly weaken an applicant's case on appeal because it forced him to integrate into the country to which he was deported. It was not unfair for a tribunal to receive evidence of an applicant's actual experience, irrespective of whether that supported the Secretary of State's case or the applicant's case. There was no significance to the fact that the requirement to bring an appeal from outside the United Kingdom was the result of the Secretary of State's own decision to certify under section 94B. The decision did not impede the applicant's ability to present...
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