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Lord Wilson (Continued)asad-khan

On the issue of video link or Skype evidence, Lord Wilson held that although on screen evidence is not optimum it might be sufficient to make the appeal effective for art 8 purposes – if indeed the opportunity to give evidence in that way is realistically available. For an appeal to be effective, an appellant must minimally be provided the opportunity to give live evidence.

Lord Wilson concluded that the financial and logistical barriers to giving evidence on screen from abroad are almost insurmountable. DFAL certification failed to operate within a Convention-compliant system for the conduct of an appeal from abroad. The MoJ failed to provide appropriate facilities at hearing centres, or some access to such facilities abroad, to enable appellants to participate in the hearing and give live evidence.

Insurmountable difficulties also arose in obtaining supporting professional evidence from (i) a probation officer as to the risk of re-offending (ii) a consultant forensic psychiatrist about the magnitude of risk and (iii) an independent social worker about the quality and importance of the appellant’s relationships with family members.

Deportation under the DFAL regime interfered with the appellants’ art 8 rights, especially in connection to the aspect of their rights that militates that their challenge to a threatened breach of their rights should be effective. The executive failed to discharge the burden on it to establish that the interference was justified and did not blunt proportionality.

(ii) Lord Carnwath

In a concurring judgment, his Lordship described the drafting of the DFAL provisions as “awkward”. Even in the interim with an appeal pending, Richards LJ could not be faulted for according weight to the public interest attached by Parliament to a foreign criminal’s removal because his approach constituted “a natural extension” of Lord Reed’s “great weight” analysis in Ali.

Lord Carnwath agreed with Richards LJ that art 8 does not require access to the best possible procedure, but only access to an effective and fair procedure. His Lordship said that subjective issues requiring the appellant to give live evidence, such as his rehabilitation, are unlikely to impact the effectiveness of his appeal for art 8 purposes. There was considerable force in the executive’s counterpoint that the general application of the Ali criteria will require assessing undisputed factual matters which can be proved without the appellant’s direct evidence. Lord Carnwath’s interpretation of the Strasbourg jurisprudence did not support a general view that appellant’s oral evidence is a necessary part of an “effective” appeal in the sense contemplated by De Souza Ribeiro (which was interpreted restrictively in IR v UK [2014] ECHR 340).

However, exercising caution about “reaching a firm view” on the effectiveness of the appeals process because of his “very limited experience” of handling first instance appeals, Lord Carnwath nevertheless held that the executive’s fundamental problem was that it would be wrong in principle for her to dictate the conduct of the appellant’s case or the evidence on which he chooses to rely. The executive must be able, at the time of DFAL certification, to satisfy herself that the necessary facilities can and will be provided.

Comment

The outcome of these appeals is clearly driven by Lord Wilson’s opinion that anyone resisting deportation faces “a formidable hurdle” and “needs to be in a position to assemble and present powerful evidence.” His ruling inflicts a damaging blow to the “flagship” status bestowed upon the 2014 Act, for which the DFAL system served as the standard-bearer. Equally, his stimulation of a “more proactive” approach to judicial review, or a standard of intensity beyond “anxious scrutiny”, is a testament to the revolutionary nature of the 1998 Act because it effectively ends the era of judicially “forbidden areas” in human rights cases by modifying – albeit not abrogating – traditional notions of the constitutional distribution of powers.

Addressing the testing concept of “very compelling reasons”, Lord Wilson also replicated the Strasbourg jurisprudence on deportation by focusing on factors such as (i) the depth of the deportee’s integration into the host society (ii) the quality of family relationships (iii) the extent of endurance of family relationships after deportation (iv) the need to safeguard and promote the welfare of any child (v) the strength of the obstacles to the deportee’s integration in the home country and (vi) any significant risk of re-offending. Because it rejected DFAL certification on a more fundamental basis, the court did not need to specifically consider Byndloss’s relationship with his children.

From Dec 2016, the scope of the s 94B power was expanded by the Immigration Act 2016, s 63. The sinister “remove first, appeal later” (RFAL) regime was not under challenge in these proceedings. RFAL allows decision-makers to certify any human rights claim, i.e. even in cases without any criminality and liability to deportation. Because it is unlawful just like its DFAL sibling, to prevent future confusion and illegality, Lord Wilson unambiguously warned decision-makers in advance that the court’s decision “will surely impact on the extent of its lawful exercise”.

Part One is here.

Originally posted here.