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Certification is not possible unless the condition in s 94B(2) is met. Accordingly, the risk ofasad-khan serious irreversible harm is not the overarching test. Contrary claims in the guidance on s 94B rendered it “inaccurate and misleading” because of the failure to focus on the central provision in s 94B(2). Deconstruction of the Strasbourg jurisprudence on the “serious irreversible harm” criterion was unnecessary and Richards LJ explained that decision-makers needed to consider whether removal would interfere with ECHR rights and whether any interference was proportionate. In light of SS (Nigeria) [2013] EWCA Civ 550 and MF (Nigeria) [2013] EWCA Civ 1192, the public interest in deporting serious foreign criminals was “strong” but:

  1. … In deciding the issue of proportionality in an article 8 case, the public interest is not a trump card but it is an important consideration in favour of removal.

Although an in-country appeal is more advantageous than an out-of-country appeal, the latter complies with any procedural requirements because art 8 merely requires that the appellant should have access to a fair and effective procedure.

The executive is entitled to rely on specialist tribunals to maintain fair and effective appeal procedures irrespective of how appeals are heard. Any difficulties associated with preparing and presenting out-of-country appeals did not amount to a denial of effective participation in the process. The overall procedure was fair, particularly given the availability of electronic communication. Admittedly, things could malfunction in individual cases:

  1. … but there is no basis for condemning an out-of-country appeal as inherently unfair.

Detention Action [2015] EWCA Civ 840 made it pointless to complain that the executive’s decision forced an out-of-country appeal to be brought. Overall it was appropriate to proceed on the basis that non-suspensive appeals are symmetrical with procedural requirements under art 8 in the generality of criminal deportation cases.

By erroneously focusing on serious irreversible harm and by not providing advance notice regarding certification, decision-making in Kiaire’s case suffered from dual legal errors but these were immaterial. His was a Maslov [2008] ECHR 546 type case and he relied on his private life more than his family life with his parents and siblings. The decision-maker rejected that there would be very significant obstacles to Kiaire’s reintegration into Kenya, where English is a lingua franca. For Richards LJ, the short-term interference with Kiaire’s private life was justified because the balance came down firmly in favour of the proportionality of interim removal.

The correct test was applied to Byndloss. The decision involved no error of law and was not perverse. It was futile to argue that no scope existed for s 94B certification wherever a meaningful relationship existed between the proposed deportee and a child in the UK. The proposition was at variance with ZH (Tanzania) [2011] UKSC 4 and Zoumbas [2013] UKSC 74 because it attempted to:

  1. … elevate children’s best interests beyond a primary consideration in decision-making and to turn them into the paramount or determinative factor.

Attempting to anchor rights to his children did not aid Byndloss as he had no relationship with them. Both Kiaire and Byndloss’s appeals were allowed in part. Although permission to apply for judicial review was granted, Richards LJ would have dismissed both substantive claims.

Comment

At the close of proceedings, Lady Hale reassured everyone that the justices “don’t underestimate the importance of the issues” in the instant appeals.

Treating his children as a passport to his own rights, rather than as rights-holders in their own right poses a problem for Byndloss. The danger of overpitching children’s rights is apparent from Makhlouf where her Ladyship stressed that children are “rights-holders in their own right”. However, she remained equally adamant:

  1. … But that does not mean that their rights are inevitably a passport to another person’s rights.

The new power under the Immigration Act 2016 to certify non-deportation cases – “remove first, appeal later” – was recently rolled out in Dec 2016. It is exercisable if the appellant had no leave when their human rights claim was made and does not rely on a relationship with a British family member.

Please see Part One here.

This post was originally published here.