Supreme Court rules ‘deport first, appeal later’ system unlawful

Wednesday 14 June 2017

The Supreme Court has today handed-down judgment in the case of R (Kiarie; Byndloss) v SSHD [2017] UKSC 42. Sonali Naik and Bijan Hoshi of Garden Court Chambers represented Bail for Immigration Detainees (BID) as first Interveners.

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The appeals concerned the lawfulness of the Secretary of State’s power to certify arguable human rights claims under s.94B Nationality, Immigration and Asylum Act 2002, thereby denying the claimant an in-country right of appeal against the refusal of their claim (the so-called ‘deport first, appeal later’ power). The appeals were unanimously allowed.

Lord Wilson, with whom Lady Hale, Lord Hodge and Lord Toulson agreed, held that the Secretary of State has exercised the s.94B certification power “in the absence of a [ECHR] Convention-compliant system for the conduct of an appeal from abroad and, in particular, in the absence of any provision by the Ministry of Justice of such facilities at the hearing centre, and of some means by which an appellant could have access to such facilities abroad, as would together enable him to give live evidence to the tribunal and otherwise to participate in the hearing”.

Lord Wilson held that the Secretary of State had failed to demonstrate that the interference with the Appellants’ Article 8 ECHR rights by their removal from the UK pending appeal from aboard, from which she gained an advantage, was fair or justified. Lord Carnwarth also allowed the appeal, giving his own reasons.

This landmark judgment, which emphasised the importance of the right to an effective appeal, renders all existing s.94B certificates unlawful (the ‘deport first, appeal later’ power). Arguably, it also means that all previous removals effected pursuant to this power were similarly unfair and raises very significant questions as to the future viability of the s.94B certification system, recently extended by the Government (from 1 December 2016) to all Article 8 ECHR claims not just those raised in the context of deportation proceedings.

The Court’s judgment relies heavily on the evidence of Bail for Immigration Detainees (BID) as 1st Interveners, who were represented by Sonali Naik and Bijan Hoshi of Garden Court Chambers, led by Michael Fordham QC of Blackstone Chambers and instructed by Maeve Hanna of Allen & Overy, all acting pro bono.

Sonali Naik and Bijan Hoshi are members of the Garden Court Chambers immigration and public law teams.

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