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As a direct access immigration barrister in London I am often asked to assist clients with their asylum and leave to remain applications. A recent case in the Court of Appeal: R (On the Application Of Kiarie) v The Secretary of State for the Home Department [2015] EWCA Civ 1020 exposes the plethora of complexity associated with the current legislative regime.

The case concerned the interpretation and effect of section 94B of the Nationality, Immigration and Asylum Act 2002, amended by the “new” Immigration Act 2014 which took effect on 28 July 2014. By and large the legislative regime applies only to those liable to deportation, which tends to mean those convicted of criminal offences overseas. Nevertheless, it is important to remember that the 2015 Immigration Bill currently being considered before Parliament would amend 94B and extend its application to all cases other than those based on asylum.

The case illustrates that despite initial fears that out of country appeals would breach an individual’s human rights in all cases, that rather it was argued that an out of country appeal would be unfair in some cases.

Richards LJ emphasised that there is a need for consideration of the ”particular seriousness of deportation for an appellant and his family. All this can be taken into account in the conduct of an appeal.” As a direct access immigration barrister I often have clients who ask me about this aspect following home office refusals, but here Richards LJ has added clarified what I often tell clients when they face similar Home Office sanctions.

Furthermore, in the judgment Richards LJ underlines the importance of export reports on rehabilitation and reoffending, but notably fails to mention independent social worker or psychologist reports focusing a parent’s relationship and interaction with their children, which would obviously be impossible to obtain once an individual has been removed from the UK. Further problems with this proposal stem from the inherent difficulties associated with making arrangements for video link evidence, another mechanism the government has been keen to implement.

The Upper Tribunal has already ruled that it is willing to accept evidence by video link following: Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) and the Upper Tribunal’s Guidance Note (No.2 of 2013): Video link hearings. However, this willingness ignores the fact that it has been held to be difficult to implement in practice within the UK never mind from lesser-developed countries.

Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, he also practises from Goldsmith Chambers and is a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.