The appellants, who were foreign nationals with indefinite leave to remain in the United Kingdom, had been convicted of serious drug-related offences. In deciding to make deportation orders against them, the Secretary of State had issued certificates, the effect of which was that they could bring appeals against those orders only after they had returned to their respective home countries. In allowing their appeals against the issuing of those certificates, the Supreme Court held that the Secretary of State had failed to establish that such deportation had struck the fair balance required by article 8 of the European Convention on Human Rights.

R (on the application of Kiarie) v Secretary of State for the Home Department; R (on the application of Byndloss) v Secretary of State for the Home Department) [2017] UKSC 42

Immigration – Appeal – Certification of human rights claim – Out of country appeal – Appellants liable to deportation as foreign criminals – Secretary of State certifying that appellants could only bring appeals against deportation orders after return to respective countries – Whether deportation pending determination of appeal breaching appellants’ rights to respect for private and family life – Nationality, Immigration and Asylum Act 2002, section 94B – European Convention on Human Rights, article 8.

The present proceedings concerned two separate appeals which were heard together as they raised common issues. The first appellant, K, had Kenyan nationality. In 2004, he had been granted indefinite leave to remain in the UK. The second appellant, B, had Jamaican nationality. In 2006, he had been granted indefinite leave to remain in the UK. Both appellants had been convicted of serious drug-related offences and the Secretary of State had made deportation orders against them. In deciding to make those orders, the Secretary of State had rejected the appellants’ claims that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights (article 8). The appellants had a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against her rejection of their claims and they proposed to exercise it. However, when making the deportation orders, the Secretary of State had also issued certificates, pursuant to the power conferred on her by section 94B of the Nationality, Immigration and Asylum Act 2002 (section 94B). The effect of those certificates was that the appellants could bring their appeals only after they had returned to Kenya and Jamaica. On appeal, the issue for determination was whether those certificates were lawful. The Court of Appeal, Civil Division, took the view that the certificates were lawful and dismissed the appellants’ applications for judicial review of the certificates. The appellants appealed.

In support of their appeal, the appellants argued that their deportation in advance of their proposed appeals would breach their rights under article 8. In that context, the first task was to identify what article 8 required. In that regard, consideration was given to article 13 of the Convention.

The appeals would be allowed.

It was settled law that, in immigration matters, where there was an arguable claim that expulsion threatened to interfere with the alien’s right to respect for his private and family life, article 13 of the Convention, in conjunction with article 8, required that states had to make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order, and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see [50], [80] of the judgment).

In order for their appeals to be effective, the appellants would need, at least, to be afforded the opportunity to give live evidence. They would almost certainly not be able to do so in person. The question was: as a second best, whether they would be able to do so on screen. The evidence of the Secretary of State was that in such appeals applications to give evidence from abroad were very rare. However, that was because of the financial and logistical barriers to the giving evidence on screen were almost insurmountable. The Court of Appeal had indorsed a practice in which the Secretary of State had, not always but routinely, exercised her power under section 94B to certify claims of foreign criminals under article 8. However, she had done so in the absence of a Convention-compliant system for the conduct of an appeal from abroad and particularly in the absence of any provision by the Ministry of Justice of such facilities at the hearing centre, and of some means by which an appellant could have access to such facilities abroad, as would together enable him to give live evidence to the tribunal and otherwise to participate in the hearing. In the circumstances, the appellants had undoubtedly established that the certificates represented a potential interference with their rights under article 8. The burden then fell on the Secretary of State to establish that the interference was justified and proportionate. Specifically, that deportation in advance of an appeal had a sufficiently important objective; that it was rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation struck a fair balance between the rights of the appellants and the interests of the community. While the appellants had in fact established that the requisite balance was unfair, the proper analysis was that the Secretary of State had failed to establish that it was fair (see [76], [78], [80] of the judgment).

The certificates would be quashed (see [79] of the judgment).

R (on the application of Gudanaviciene) v Immigration and Asylum First Tier Tribunal [2017] All ER (D) 72 (May) approved; Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765 considered; Al-Nashif v Bulgaria (Application 50963/99) [2002] ECHR 50963/99 considered; Manchester City Council v Pinnock (No 2) [2011] 2 All ER 586 considered; R (on the application of Aguilar Quila) v Secretary of State for the Home Department; R (on the application of Bibi) v same [2012] 1 All ER 1011 considered; Secretary of State for the Home Department v Nare [2011] UKUT 00443 (IAC) considered; R (on the application of Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2015] 2 All ER 453 considered; De Souza Ribeiro v France (Application No 22689/07) (2014) 59 EHRR 454 considered; Ali v Secretary of State for the Home Department [2016] All ER (D) 90 (Nov) considered.

Lord Hale DP, Lord Wilson, Lord Carnwath, Lord Hodge and Lord Toulson (SCJJ)

Richard Drabble QC and Joseph Markus (instructed by ) for K.

Manjit S Gill QC, Ramby de Mello, Tony Muman and Jessica Smeaton (instructed by JM Wilson Solicitors) for B.

Lord Keen of Elie QC (Advocate General for Scotland), Lisa Giovannetti QC and Neil Sheldon (instructed by The Government Legal Department) for the Secretary of State.

Michael Fordham QC, Sonali Naik and Bijan Hoshi (instructed by Allen & Overy LLP) for Bail for the Immigration Detainees, as intervener.

Henry Setright QC and Richard Alomo (instructed by Fountain Solicitors) for the Byndloss Children (written submissions only), as intervener.

Neneh Munu, Barrister.

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