Upper Tribunal (Immigration and asylum chamber), 2022-05-05, [2022] UKUT 00156 (IAC) (R (on the application of Watson) v Secretary of State for the Home Department (s. 94B process, s. 25 powers))
| Judge | The Hon. Mr Justice Lane, President |
| Status | Reported |
| Published date | 20 June 2022 |
| Date | 05 May 2022 |
| Hearing Date | 04 February 2022 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | s. 94B process, s. 25 powers |
| Appeal Number | [2022] UKUT 00156 (IAC) |
UT Neutral citation number: [2022] UKUT 00156 (IAC)
R (on the application of Watson) (s. 94B process; s. 25 powers) v Secretary of State for the Home Department
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at Field House
THE IMMIGRATION ACTS
Heard on 4 February 2022
Promulgated on 5 May 2022
Before
THE HON. MR JUSTICE LANE, PRESIDENT
Between
THE QUEEN
on the Application of
WELLINGTON PAUL WATSON
(ANONYMITY DIRECTION not MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the applicant: Ms S Naik QC and Mr A Bandegani, instructed by Duncan Lewis Solicitors
For the respondent: Mr S Kovats QC, instructed by the Government Legal Department
(1) In determining whether, in the case of a person removed from the United Kingdom pursuant to a certificate under section 94B of the Nationality, Immigration and Asylum Act 2002, there has been a breach of Article 8 ECHR in its procedural or substantive form, the actions of the Secretary of State do not necessarily fall to be examined in isolation from the position of the United Kingdom’s judicial organs. It will therefore be of particular relevance whether the person concerned has, at all material times, had access to a court or tribunal that was able to ensure compliance with Article 8.
(2) In the course of an appeal under section 12 of the Tribunals, Courts and Enforcement Act 2007, where the appellant is outside the United Kingdom following removal pursuant to a section 94B certificate, section 25 of the 2007 Act empowers the Upper Tribunal to require the Secretary of State to return the appellant to the United Kingdom.
JUDGMENT
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This is an application for judicial review, made on 29 January 2018, in which the applicant challenges the respondent’s “ongoing decisions” (1) to maintain the certification of the appellant’s human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002; and (2) to refuse to facilitate his return from Jamaica to the United Kingdom, until the order of the Upper Tribunal on 3 May 2019 in which, pursuant to section 25 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal ordered the respondent to revoke the section 94B certificate and take all necessary steps to facilitate and fund the applicant’s return from Jamaica to the United Kingdom as soon as practicable for both parties.
A. HISTORY
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The Upper Tribunal’s order followed its finding that the decision of the First-tier Tribunal in the applicant’s appeal, following a hearing at which the applicant had appeared by video-link from Jamaica, contained an error of law and should be set aside. In essence, the Upper Tribunal concluded that the applicant’s appeal could not be “effective”, as explained by the Supreme Court in Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42; [2017] Imm AR 1299, because his presence in the United Kingdom was necessary for the preparation of an assessment and report in respect of his children, J and RN.
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On 31 March 2018, the Upper Tribunal (Lane J, President; Upper Tribunal Judge O’Connor) had stayed the present judicial review proceedings. At that point, the proceedings challenged not only the respondent’s decision to maintain the section 94B certificate in respect of the applicant but also the respondent’s refusal to facilitate the applicants return from Jamaica. The decision to stay the proceedings is reported as R (on the application of Watson) v (1) Secretary of State for the Home Department and (2) First-Tier Tribunal (Extant appeal; s.94B challenge: forum) [2018] UKUT 00165 (IAC); [2018] Imm AR 1094. In so deciding, the Upper Tribunal followed the guidance in AJ (s.94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC); [2018] Imm AR 976. The guidance explained that it is for the First-tier Tribunal to apply the step-by-step approach derived from the judgment of the Supreme Court in Kiarie and Byndloss in order to determine whether an applicant can have an effective appeal, unless he or she is in the United Kingdom.
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In the event, as I have mentioned, although the First-tier Tribunal found that the applicant could have such an effective appeal, the Upper Tribunal concluded that the First-tier Tribunal had erred in law.
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On 29 April 2019, the applicant applied to lift the stay. On 7 May 2019, Upper Tribunal Judge O’Connor decided that this application should itself be stayed, in the light of the terms of the Upper Tribunal’s order in appeal HU/22903/2016, directing the appellant’s return for the purposes of his appeal being re-made in the Upper Tribunal; and that the application for judicial review in the present proceedings should remain stayed pursuant to the decision of 31 March 2018.
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On 18 June 2019, the applicant was returned to the United Kingdom. On 9 January 2020, a hearing took place in the Upper Tribunal (Lane J, President; Upper Tribunal Judge O’Connor) in respect of the re-making in the Upper Tribunal of the decision in the applicant’s appeal in HU/22903/2016. The applicant was present at this hearing. In a decision of 24 February 2020, the Upper Tribunal re-made the decision in the applicant’s appeal by dismissing it.
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The applicant applied to the Upper Tribunal for permission to appeal to the Court of Appeal against the re-made decision. The Upper Tribunal refused permission.
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On 7 January 2021, the Upper Tribunal (Lane J, President) refused a new application by the applicant for permission to lift the stay on the judicial review proceedings and to amend the relief sought. The Upper Tribunal explained that the reasons why the stay had originally been imposed continued to apply, in that the appeal proceedings were still extant, since the applicant had made a renewed application for permission to appeal to the Court of Appeal. Although the application to amend the grounds presented them as minor in nature, they were far from being so. They would have materially enlarged the scope of the challenge by covering the human rights of the minor children of the applicant. The children were sought to be added as parties, although it did not appear at the time that legal aid for this was currently available.
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Permission to appeal was refused by Laing LJ in the Court of Appeal on 21 June 2021. Following that refusal of permission, the Upper Tribunal (Lane J, President; Upper Tribunal Judge O’Connor) ordered on 10 November 2021 that the stay on the judicial review should be lifted. The applicant was given permission to bring judicial review proceedings. The applicant was also given permission to amend his grounds, in order to contend that the Upper Tribunal did not have power under section 25 of the 2007 Act to direct the respondent to make provision for the applicant’s return to the United Kingdom. That ground was also held to be arguable.
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Although the present judicial review was brought against decisions of both the respondent and the First-tier Tribunal, Immigration and Asylum Chamber, the applicant’s amended grounds no longer seek to challenge any decision of that Tribunal.
B. THE SECTION 94B CHALLENGE
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For those with an interest in the immigration jurisdiction, the terms of section 94B of the Nationality, Immigration and Asylum Act 2002 are by now well-known. The Secretary of State may certify a human rights claim made by P if she considers that, despite the appeals process not having been begun or not having been exhausted, refusing P entry to, removing P from, or requiring P to leave the United Kingdom, pending the outcome of the 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).
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In summary, the applicant contends that the certificate made under section 94B in his case was unlawful. It involved a breach of section 55 of the Borders, Citizenship and Immigration Act 2009 and, but for the asserted unlawful action of the respondent, the applicant would have been living with his family in the United Kingdom for the period up to and including the final determination of his statutory appeal against deportation. The section 94 decision and its ongoing maintenance led to a forced separation between the applicant and his British children for a lengthy period, constituting a “colossal and unjustified interference” severing the relationship between the applicant and his elder daughter and preventing the relationship developing between him and his son, who was born shortly after the appellant’s deportation from the United Kingdom.
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The qualitative and quantitative nature of the applicant’s relationship with his children during the period of his absence in Jamaica was, thus, damaged, which in turn affected the merits of his appeal against the refusal of his human rights claim, in which he contended that his deportation as a foreign criminal would be contrary to section 6 of the 1998 Act.
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Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to make arrangements for ensuring that (inter alia) any function in relation to immigration, asylum and nationality is discharged having regard...
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