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Following my earlier post on 20th September 2015, last week also heralded the first test case against Section 94B of the Nationality, Immigration and Asylum Act 2002, following amendments by the new Immigration Act 2014 on 28th July 2014, as a direct access immigration barrister the case highlights a number of problems within the incumbent Government’s proposals for immigration reform.

The legislative change allows the Home Office to certify claims made by those liable to deportation under the Human Rights Act 1998, preventing them from raising an appeal from within the UK. Rather appellants will be expected to bring their appeals from the country they are subsequently deported. This change conforms to the modifications introduced by the Immigration Bill 2015. That being said, at present it is only cases involving foreign criminals that can be certified under Section 94B.

Nevertheless if a case falls under S.94B a claimant is denied the chance to raise Human Rights arguments within the UK. Rather, the claimant must raise his appeal from his country of deportation. The Home Office has provided guidance that they will not remove appellants where there is a high probability of “serious irreversible harm”, with the burden of proof resting on the appellant.

Home Office Guidance on “serious irreversible harm”
“The person has a genuine and subsisting parental relationship with a child who is seriously ill, requires full-time care, and there is no one else who can provide that care;

The person has a genuine and subsisting long-term relationship with a partner who is seriously ill and requires full-time care because they are unable to care for themselves, and there is no one else, including medical professionals, who can provide that care.”

Submissions in the test case highlighted that there would be severe difficulty ensuring that there would be satisfactory procedures in place to ensure a fair trial where the appellant has to make their appeal from their country of deportation.

Despite the Home Office’s piecemeal attempt to remove people from the country before decisions can be challenged or appeals could be won, Richard Drabble QC underlined the various problems inherent in this approach with Chikwamba v Secretary of State for the Home Department [2008] UKHL 40. In this case, it was held that expecting the appellant to return to Zimbabwe and make an Entry Clearance application for re-admittance was breach of her Article 8 rights, but interestingly this would not have constituted as “serious irreversible harm”.

Ultimately, certifying that an asylum or immigration matter be appealed outside the UK jurisdiction presents significant obstacles for access to justice as financial, technological and logistical barriers prevent justice being done.

If you, a family member or friend are facing removal I would advise getting in touch with me or and my dedicated team and we will do our utmost to help you with you any immigration advice / problem you may or may not have.