As a direct access immigration barrister, it is pleasing to be able to write about a case that both positively affects one of my clients and secondly also affects a great number of other people.
This relates to the Secretary of State’s much trumpeted deport first and appeal later policy.
This was originally trialled upon foreign national prisoners in a particular area and then rolled out. The idea being that if unless there was sufficient harm caused by the removal then an individual could be removed and then they could appeal from abroad. Cases which came before me often involved children. These were supposed to be excluded, or at the very least used sparingly, as is often the case with the Home Office, they chose to use the power widely.
Then the spectre of the end of in country human rights appeals reared its head with the Secretary of State seeking to or wanting to expand this to those who.
The Supreme Court however have issued a decision called Byndloss and Kairie v SSHD  1 WLR 2380.
This decision drives a coach and horses through the SSHD’s litigation and scheme.
Essentially it says that appeals from abroad are unfair in these circumstances given that individuals are essentially, in my view, shut out of the appellate process.
The Supreme Court noted that of 1,175 certificates issued and individuals removed, 72 had appealed and 0 had succeeded.
It was not surprising that the Supreme Court struck down the scheme, both in respect of foreign national criminals and in an obiter comment in respect of wider article 8 appeals.
The Court stated at [77 – 78]:
“77. Between 28 July 2014 and 31 December 2016 the Home Secretary issued 1,175 certificates pursuant to section 94B in relation to foreign criminals, all, therefore, with arguable appeals. Of those 1,175 persons, the vast majority were no doubt duly deported in advance of their appeals. But by 31 December 2016 only 72 of them had filed notice of appeal with the tribunal from abroad. It may well be that on 13 February 2017 a few of those appeals remained undetermined. The fact remains, however, that, as of that date, not one of the 72 appeals had succeeded.
- It remains only to re-cast the reasoning expressed in this judgment within its proper context of a claim that deportation pursuant to the two certificates under section 94B would breach the procedural requirements of article 8. The appellants undoubtedly establish that the certificates represent a potential interference with their rights under article 8. Deportation pursuant to them would interfere with their rights to respect for their private or family lives established in the UK and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The burden then falls on the Home Secretary to establish that the interference is justified and, in particular, that it is proportionate: specifically, that deportation in advance of an appeal has a sufficiently important objective; that it is rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation strikes a fair balance between the rights of the appellants and the interests of the community: see R (Aguilar Quila) v Secretary of State for the Home Department  UKSC 45,  1 AC 621, para 45. The alleged objectives behind the power to certify a claim under section 94B have been set out in section F above. I will not prolong this judgment by addressing whether the power is rationally connected to them and as to whether nothing less intrusive could accomplish them. I therefore turn straight to address the fair balance required by article 8 and I conclude for the reasons given above that, while the appellants have in fact established that the requisite balance is unfair, the proper analysis is that the Home Secretary has failed to establish that it is fair.”
The Supreme Court decision is an excellent decision.
If you are facing a s.94B certificate or have had your case dismissed by the UT or are worried that your case may well be certified please come and see me urgently or another reputable lawyer.
I have already had clients contact me who had perfectly viable claims under the restrictive s.94B guidance and who now can rest safely in the knowledge that they can attend their own appeal and give their own evidence with all the additional prospects of success that this carries.
I cannot stress how important that this case is. It affects a great number of people that of the 1,175 removed 0 succeeded is in my view a damning verdict on the fairness of the system. It might well be that they had difficult appeals however I have won deport appeals where the Appellant is truly contrite, has family members, in particular children and works at their appeal with me and I do not see why this will not continue.
Again I would urge that if you are effected seek help quickly before the Home Office shuts this particular door. Me and my team are waiting to help.
Paul Turner is an experienced and highly regarded direct access immigration barrister also licensed to practice litigation and has a team of 4 to help make any problem appear its true size. He is the head of Imperium Chambers, a boutique, possibly the first, set designed to help direct clients who do not want a solicitor and who want direct access with a barrister who was called in 1998 and has been practising immigration since 1999. I am also a member of the excellent set of Tony Metzer QC, Goldsmith Chambers, based in the Temple. He can be contacted on 0207 242 3488.