“Deport First, Appeal Later”: Family Life’s Victory over Section 94B Certification
The conflict of deportation of a migrant and Article 8 Right to a Private and Family Life is historic in nature, yet evidently this did not deter the introduction of Section 94B of Nationality, Immigration and Asylum Act 2002. A policy was introduced to deny a migrant the right to reside in the UK whilst appealing the decision following the conviction of a serious criminal offence, hence the introduction of Section 94B.
Section 94B relates to migrants detained for a crime in the UK. If detained for a serious criminal offence, the right to remain in the UK could be removed. The migrant may lodge an appeal, however Section 94B awarded the Secretary of State the power to deport a migrant before an appeal is heard if certain criteria is met. One may be pondering what is the issue? A rejection to stay in the UK surely should be followed and enacted, and with an appeal still available (albeit outside the UK) what really is the problem? The Judgment in the Supreme Court of the case of R (Kiarie and Byndloss) v Secretary of State for the Home Department offers an answer and addresses issues that arise when Article 8 is engaged.
All public authorities must act in a way that is compatible with Convention Rights (Section 6 HRA 98). It was found in this recent judgement that the implementation of ‘deport first appeal later’ did engage Article 8. Mr Kiarie has Kenyan nationality, he moved to the UK in 1997 with his parents and siblings at aged three years old. Mr Kiarie was granted Indefinite Leave to Remain in 2004, and at the time of the hearing was aged 23 years old. Mr Byndloss has Jamaican nationality, he moved to the UK when he was 21 years of age and at the time of the appeal was aged 36 years old. He has a wife and several children in the UK. Mr Byndloss was granted Indefinite Leave to Remain in 2006. Both appellants were convicted of a serious drugs charge.
Mr Kiarie and Mr Byndloss were issued with Section 94B Certificates for deportation. The Supreme Court were requested to review the decision of the Court of Appeal, that although Article 8 was engaged the decision to deport was proportionate. The factor that lead to the deportation was justified as, if the migrant remained it was conducive for the public good. The Conservative Government stated that the Certificate would only be issued on the basis that there is no risk of serious and irreversible harm upon deportation.
The Supreme Court ruled the Certificate for deportation was unlawful and not in accordance with Article 8 as the Secretary of State had acted disproportionality. Lord Wilson stated although the Secretary of State stated a Certificate will only be granted “Where there is no risk of serious and irreversible harm, we should deport foreign criminals first and hear their appeals later.” Nevertheless, Lord Wilson interprets this statement as not only the risk of harm to the country of which the applicant is to be deported, but the harm that could be caused to likelihood of success at appeal. The inability to provide oral evidence in person, appoint and subsequently liaise accordingly with legal representatives prior to the hearting could adversely affect the outcome. This was the primary focus for the Supreme Court, placing emphasis on the fairness of an out of country appeal that engages Article 8.
The fairness of an appeal was stated in paragraph 56, Lord Wilson specified the role of the Home Office is to both decide the deportation of the migrant and be a party in appeal proceedings, perhaps Lord Wilson was suggesting an imbalance of power.
Furthermore, the removal of the migrant could affect the grounds of which he bases his appeal. If the appeal raises matters relating to strong family, social and community ties, the migrant is not currently demonstrating those ties whilst in another country.
THE FUTURE OF 94B
The full implications of the Supreme Court ruling are yet to be seen. The government has yet to act upon the now deemed unlawful ‘deport first appeal later’ policy. It is unclear as to the possibility of such certificates being issued in the near future, or an amendment of legislation. Nevertheless, the need for action by the government is evident.
By Lesley Alexander, Associate at QC Immigration
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