In 2013, as home secretary, Theresa May pledged to her party that foreign criminalsasad-khan with outstanding appeals would no longer be permitted to remain on British soil in cases “where there is no risk of serious and irreversible harm”. By holding that the crippling “deport first, appeal later” (DFAL) provisions of the Immigration Act 2014 are unlawful, the Supreme Court continued the trend of departing from the Court of Appeal’s conservatism. Both appellants had convictions for serious drugs offences. Presently 23, Kiarie, a Kenyan, came to the UK aged three and lived with his family acquiring ILR in 2004. Presently 36, Byndloss, a Jamaican, entered the UK aged 21 acquiring ILR in 2006. Byndloss and his wife have four children and he also has numerous further children from other relationships. Deportation orders were made for both appellants pursuant to the automatic deportation regime under the UK Borders Act 2007, s 32(5) . The decision-makers rejected the appellants’ claims that exception 1 in s 33 applied with the result that their deportation would breach their rights under the ECHR, art 8. Overall, Lady Hale and Lords Wilson, Carnwath, Hodge and the late Lord Toulson distanced themselves from Richards, Elias and McCombe LLJ’s interpretation of the public interest in DFAL cases.

DFAL certification pursuant to the Nationality, Immigration and Asylum Act 2002, s 94B, as inserted by the 2014 Act, s 17, accompanied the deportation orders. However, despite the use of the DFAL provisions, no “clearly unfounded” certification was made under the 2002 Act, s 94. This meant that the appeals were arguable.

The Issue

These appeals raised the issue whether the home secretary breaches a person’s human rights by applying the DFAL system without making proper provision for him to participate in the hearing of the statutory appeal irrespective of the appellant’s prospects of success.

The Court of Appeal

Since DFAL certification cannot be appealed, both appellants instituted judicial review proceedings but were unsuccessful at the permission stage. Allowing the onward appeals in part, Richards LJ granted permission to apply for judicial review but he would have dismissed both appellants’ substantive claims. Whilst the DFAL certifications were based on a misdirection that the appellants would not face a real risk of serious irreversible harm if removed with their appeal pending, that misdirection was immaterial in Kiarie’s case and the first certification of Byndloss’s claim was subsequently corrected by a second certification.

The decision-maker had been entitled to find that Byndloss did not have a genuine relationship with his children. Any short-term interference with art 8 was justified because the balance came down firmly in favour of the proportionality of interim removal. It was held that in most criminal deportation cases the procedural requirements of art 8 were met by an out-of-country appeal.

The Supreme Court

The justices unanimously allowed both appeals and quashed the DFAL certificates. Pursuing an out-of-country appeal would breach art 8 because the appeal would not be effective. Lord Wilson gave the main judgment and Lord Carnwath provided an alternative basis for allowing the appeals.

 (i) Lord Wilson

His Lordship held that the public interest in the effectiveness of a right of appeal outweighs the public interest underpinning the DFAL system. The DFAL issue was distinct from the question of a foreign criminal successfully resisting deportation by reference to art 8 under the “very compelling” circumstances test contemplated in Ali [2016] UKSC 60. The key aim of s 94B is embedded in the appellants being “foreign criminals” whose deportation is conducive to the public good under the 2007 Act, s 32(4).

Overruling Richards LJ, his Lordship held:

  1. … the public interest in a foreign criminal’s removal in advance of an arguable appeal is outweighed unless it can be said that, if brought from abroad, the appeal would remain effective.

As demonstrated by Mamatkulov v Turkey (2005) 41 EHRR 25, DFAL’s criterion of serious irreversible harm shows some intersection with the ECtHR’s application of rule 39 relief. Yet the symmetry is incongruous because a statutory appeal to the immigration tribunal imposes much greater evidential demands on the appellant. Statute speaks clearly on the mechanics of DFAL. The overarching criterion governing certification militates against an appellant’s human rights being breached and the possibility of real risk of serious irreversible harm merely exemplifies the occurrence of a breach.

Under the Human Rights Act 1998, s 6(1), as public authorities, the courts are obliged to uphold ECHR rights. Insofar as judicially reviewing a s 94B certification is concerned, independent judicial analysis is needed to decide whether DFAL would breach the appellant’s ECHR rights. Despite the weightiness of public policy considerations and the respect to be paid to the primary decision-maker’s conclusions, invoking Lord Neuberger’s rationale in Lord Carlile [2014] UKSC 60, Lord Wilson held that:

  1. … There is no doubt that, in making that decision, it must assess for itself the proportionality of deportation at that stage.

Moreover, in Lord Carlile, Lord Sumption ruled out the possibility of an “absolute constitutional bar” to the court’s role in reviewing – when relevant and necessary – the compatibility of executive decisions with human rights. Accordingly, pursuant to the duty under the 1998 Act, s 6, Lord Wilson encouraged a “more proactive” judicial approach.

Thus, even in ongoing judicial review proceedings, the court’s residual power to determine facts and to receive oral evidence is not in doubt and needs to be recognised.

The DFAL system significantly weakens an arguable appeal. These cases turned on whether s 94B certification obstructs a foreign criminal’s ability to effectively present his appeal. On the practical side, bringing an appeal from abroad obstructs the appellant’s ability to present his case. Several obstacles confronted DFAL appellants. Since the availability of legal aid is unclear, an appellant might well have to represent himself.

Even in cases where legal representation is available, formidable difficulties exist in giving and receiving instructions prior to and during the hearing. The court expressed “grave doubts” as to whether an appellant could effectively run his case without giving oral evidence to the tribunal.

DFAL prevents appellants from giving oral evidence but surviving cross-examination and giving direct oral evidence are key traits of the appeals process. According to the court, an appellant whose relationships are under scrutiny must be able to give live evidence to the tribunal so it can evaluate his rehabilitative efforts and the quality of his relationships with others in the UK, in particular with any child, partner or other family member.

In contrast to these appeals, DFAL cases involving the Citizens’ Directive permit an interim order to suspend enforcement of the removal decision and also allow appellants to return temporarily to the UK in order to give evidence in person to the tribunal. Lord Wilson was unimpressed by the suggestion that a witness summons requiring the present appellants’ attendance could be issued because the summons is not enforceable in relation to a person outside the UK.

Part Two is here.

Originally posted here.