Tribunal orders Home Office to return deportee to UK in first order of its kind following successful challenge to 'deport first, appeal later'

Tuesday 7 May 2019

Sonali Naik QCAli Bandegani and Bijan Hoshi, all of Garden Court Chambers, represented the claimant. They were instructed by Sulaiha Ali and Phillip Armitage of Duncan Lewis.

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On Friday 3 May the Secretary of State for the Home Department was ordered to return a Jamaican national (WW) to the UK from Jamaica. WW was removed from the UK three years ago pursuant to s94B of the Nationality Immigration Asylum Act 2002: the “deport first, appeal later” provision.

In Kiarie and Byndloss [2017] UKSC 42 the UK Supreme court had held that requiring a person to bring a human rights challenge to their deportation from abroad, would give rise to a breach of ECHR art.8 as an out-of-country appeal would not be effective. In response, the Tribunal identified a cohort of “test cases”, of which WW was one, to assess the fairness of “deport first, appeal later” hearings in practice.

In WW’s case the President and the Vice President of the First-tier Tribunal (IAC) held that WW’s appeal could proceed fairly and went on to dismiss his appeal brought on Art 8 ECHR grounds.

On appeal, UT Lane J and UTJ O’Connor held that they were wrong in law to do so, and that WW’s appeal could only be fairly and effectively determined if he were in the UK. It was then directed that WW be returned in what is believed to be the first order of its kind since Kiarie and Byndloss.

Sonali Naik QCAli Bandegani and Bijan Hoshi are members of the Garden Court Chambers Immigration Team

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