Deport Now, Appeal Later and Out-of-Country Appeals

Hello. My name is Ben. Um, Anwar. I'm a barrister at the 36 Group based at 36 Bedford Row in London. And this is a webinar to do with the Deport Now appeal later policy in the UK and out of country appeals. So what this one Webinar will consider is first of all, the decision of the UK Supreme Court a landmark decision in the case off a crown on the application off Chiari and Blend Loss, the secretary of state for the Home Department. 2017. You care c 42 on this landmark case considered the out of country appeals regime that's contained in the U. K's deport. Now appeal later policy, and I'll also be discussing the implications off this case Moving forward. What does it mean for practitioners on a day to day basis? What does it mean for your clients who may or may not be affected by decisions taken under this policy? On briefly towards the end, I'll be discussing some practical tips for assisting clients who have been affected by this policy. So what is the deport now? Appeal Later policy. That is perhaps the best place to start so this policy was introduced in 2013 under the then coalition government on it was really driven by this concern that the appeals process in the UK WAAS perhaps being abused or being used to drag out deportation challenges on also that whilst people would put claims into the system and run their appeals all the while there would be delay. And during that time, their family rights on their their private life rights in the UK would be deepened and entrenched because of the passage of time. And so the government stepped in. Andi put forward parliament a bill which sorts to introduce an amendment to the Nationality, Immigration and Asylum Act 2002 on that amendment came to pass in the form off Section 94 B off the 2000 to act. Now, as originally enacted, Section 94 b gives the secretary of state power to certify a human rights claim. A human rights claim, in particular that's being brought by a person who is challenging deportation on what the certificate does or what is triggered by is when the secretary of state considers that removal off that person before their appeal has Bean heard will not breach there. Human rights. So so long as the secretary state satisfied that if it removes the person who's trying to appeal against the deportation decision on the basis of human rights, if that person's removed on there's no breach of their human rights before their appeal is heard, then the secretary of state Convey make a certificate under Section 94 b. Now This statutory change was also accompanied by policy guidance on this policy. Guidance instructed caseworkers at the Home Office to consider weather interim removal. That is, removal between the time that a decision is taken and the time that an appeal is heard or the appeal process has been exhausted to consider whether removal in that period would result in serious or irreversible harm. Sorry, that's serious and irreversible harm. The policy also contains some highly restrictive examples off what amounts to serious Andi irreversible harm. Now from the very get go with this deport now appeal later policy. There were concerns amongst practitioners and others that because of these restrictive examples and because of the fact that the tribunal's ability to actually conduct out of country appeals is largely untested, that perhaps due to the fact that the tribunal lack certain facilities. It was going to be difficult for persons facing deportation to actually effectively challenge their adverse deportation decisions. And the reality is that since the time that this provision was enacted and the policy has Bean enforce virtually none off the recorded or or known appeals that have Bean brought out of country following a Section 94 B decision have resulted in a successful appeal. So it's a very low success rate now. There have been long standing concerns from practitioners and others about the practicalities of how this policy was going toe work, really from the get go, because it seemed to those of us who used the tribunal, the immigration tribunal on a regular basis, that there aren't any facilities for, for instance, remote video links to Zimbabwe or Iran or to any any country overseas, let alone facilities to enable people to appear by video link when they're within the UK so other than in the bales courts. So there were concerns about the lack of sophisticated technology that could be accessible to appellants who face these certificates on that there are also concerns around the difficulties faced in terms of inappropriate use off the self certification powers. There were cases where, actually the the appeal against the deportation order had merits. There were serious arguments that play Children's interests that needed to be considered. But nevertheless, the Secretary of state was exercising the power on the Section 94 b arguably inappropriately as a way of essentially weakening the deportees. Chances on appeal on the first of December 2016 however, the the decision taken by a parliament WAAS to extend the remit off Section 94 b beyond the scope off persons facing deportation and to include any other persons who have made a human rights claim that has been refused and so that could be all manner off immigration claims Based on human rights arguments, this dramatically expanded the scope and the number of persons potentially affected by Section 94 B and currently, as it stands as amended, that is Thebe position off the legislation. The first legal challenge to take off against Section 94 B, as it was previously enacted to the pre amendment version, was the case off Chiari and blend loss and Judgment was given by the Court of appeal in that case in 2015 the Court of Appeals conclusions was that the guidance, the policy guidance that the secretary of state had set out to her caseworkers was actually misleading. It was misleading them because what it did was it suggested that what caseworkers had toe identify wars, that an appellant needed to show that they would suffer serious and irreversible harm if they were removed pending their appeal or before their appeal have Bean heard were exhausted through the appeals system. That wasn't actually the test in the statute, so that approach was never really going to be lawful or successful for very long. And it wasn't The Court of Appeal decided it was misleading. And the correct approach is for caseworkers to look at whether there would be a breach off the person's human rights by interim removal before their appeal had, Bean concluded. Also, when the court was faced with a judicial review challenge against a Section 94 B certificates, the role of the court when it came to the question of whether interim removal was proportionate was for the court to decide the matter for itself. Although under normal judicial review principles the question would be a review off the secretary of state's decision under Section 94 b In actual fact, because convention rights and in particular Article eight off the European Convention. WAAS in issue, the Court of Appeal held that it was a matter for the court to determine proportionality off its own accord. The appellants in Chiari went to the Supreme Court, and we now have a landmark decision, wide ranging and highly significant, a major decision in the form of Chiari and blin loss from the Supreme Court. Lord Wilson gave the leading judgment. First of all, the court started off in its discussion off the principles at play in this case by considering that whilst on the one hand there is a public interest in removing foreign criminals who are trying to appeal against deportation decisions because off the need to reduce or eliminate the risk that they would re offend. On the other hand, there is also a substantial public interest in granting a right of appeal that is effective. What's the point of having a right of appeal against the public bodies decision if you can't actually properly exercise it? If, for instance, in order to exercise that you can't participate as much as you need to in the actual hearing itself or in the preparation off that hearing that leaves you with very little in the way, often actual right off appeal or an actual legal remedy against the public law decision. So that discussion takes place at paragraph 35 in Chiari and Blend. Loss on this really goes to the core off, a theme that runs throughout the judgment. It's this idea off the need for effective remedies the need for remedies to actually contain some substance rather than just being in a way meaningless. The court considered that the secretary of state also has a new alternative certification power Nearby. Two Section 94 b is Section 94 off the Nationality Immigration and Asylum Act 2002. The court also drew a distinction between two alternative powers that the secretary of state has. The secretary state could make a certificate under Section 94 B if it believes that removal before an appeal has been concluded would not breach human rights. But she can also make a certificate under Section 94 1 off the 2000 to act and that certification power applies where the secretary of state believes that to claim for international protection or human rights claim is, I quote clearly unfounded. So the aim of that alternative power is too process efficiently claims which are just without merit. The very fact that a claim has been certified under section 94 B and not Section 94 is significant. Where only Section 94 B applies? The implication is that the person has an arguable human rights claim, whereas where Section 94 applies. The consequence of that is the secretary of state's view is that the claim has no merit. And so this entire discussion about remedies about effective appeal rights takes place in the context off a decision under Section 94 B that a person's human rights claim is arguable. It may have merit. It's not in some way clearly unfounded. And those types of claims, of course, require on effective appeal procedure. The Supreme Court also endorsed the approach off the Court of Appeal when it comes to reviewing on judicial review principles a decision under Section 94 B, but it went further at Paragraphs 43 on DFO 47 the Supreme Court discussed the idea of this notion that when faced with a judicial review challenge off a Section 94 B certificates, the court should be open to the possibility off hearing evidence. Now. This might sound like a fairly modest development in the law, but it's not. It's pretty fundamental because the Supreme Court wrote, even in the course of a judicial review, and I quote the residual power of the court to determine facts and to that end to receive evidence, including Orel evidence needs to be recognized. Those of you used to bringing judicial review challenges will note that this approach is although it's catching on in some corners of judicial review learning it's not universally shared. It's important because it suggests that in Section 94 b judicial Review challenges, there may be a need to hear evidence in order to properly assess the question off Weather removal pending appeal is proportionate or not, and this really breaks new ground because, but other courts and tribunals have previously been reluctant to go that far reluctant to turn the judicial review process into a sort of quays I appeal procedure. That approach seems to be catching on because it is it precisely what the Supreme Court has now suggested. The Supreme Court then considered a number of factors, which highlighted serious concerns about the ability of the tribunal service to actually carry out effective, that appeals that are held out of country. The court noted a number of points, firstly, deportation appeals themselves require a lot off work in terms of assembling the evidence in order to present the powerful evidence that's required toe overturn. But decisions under the deportation powers available to the secretary of state that is a hard task. It requires evidence on a wide range of matters on the relationship with Children, the inter relationship amongst the family unit, a person's character and their development post offending their links with a partner, their links to a country overseas. And the task of gathering up all of this evidence is going to be much harder for someone to carry out from overseas when they're thousands of miles away. Potentially, this leads on to a second point, which is that the practical effect off a Section 94 B certificate is actually often to weaken the strength off a deportees appeal it's concerning also in terms of basic fairness, because the secretary of state is both the decision maker who's making or issuing the certificates under Section 94 B, and she's also the opposing party to the appeal, so she gets the opportunity to effectively weaken her opponents. Appeal on that did not appear to be fair. That paragraphs 57 58 this issue is discussed in the judgment certification. The effect of certification is actually to obstruct Get in the way off the presentation off the person's appeal further on to compound some of these complexities, Legal aid is generally unavailable in the vast majority of cases outside of what's known as exceptional funding of cases, It's unavailable for persons who are appealing against deportation. Andi. As an aside, I know that it's also unavailable for those appealing immigration decisions outside of the deportation context. Further, Orel evidence in person is important in deportation appeals. It's important because the tribunal will often be making a judgment on how far a person has Bean able to address their offending. Have they changed their character? Are they genuinely remorseful? Andi reformed These this sort of assessment is much, much harder to conduct from overseas and without the aid off in person. Live evidence. It's that old phrase of seeing the whites of the eyes as anyone who's participated in tribunal proceedings will be aware off. It's highly important for people to turn up and to provide oral evidence, be cross examined, and give evidence to a judge for that judge to be able to get a full grasp of the issues and the characters in the history involved. So paragraph 61 of the Supreme Court's judgment This issue is canvas on discussed, and the conclusion is a paragraph 63 unsurprisingly, that live evidence is required for there to be an effective appeal against deportation in most cases. So that's a highly useful statement of principle, which, effectively on one reading would appear to draw serious doubts around the sector of states ability to use the Section 94 b certificate power in any deportation appeal cases, or at least in most cases, so concerns had already arisen in the case law. By the time that this appeal went to the went to the Supreme Court about the facilities available in the tribunal to actually hear appeals by video link and the upper tribunal's decision in the case of market. Bella v. Secretary of State, 2016 U. K U. T 561 Open brackets I A C Close brackets at paragraph 90 in that decision did express some serious concerns and doubts about whether the tribunal can do this. Can it process in large numbers out of country appeals? Does it have adequate video link facilities both in the UK but also accessible from overseas? It simply isn't there. The Supreme Court reviewed the situation and expressed what it called. I quote grave concerns about the tribunal's facilities. While it's possible, in theory for video linked to provide live evidence that would satisfy the requirements off an effective appeal, there were still further problems. And those problems included the fact that video link inevitably reduces the quality off evidence available to a judge. That's noted at paragraph 69 of the judgment and also because of the simple logistics of it. When someone is giving evidence over video link, they still need to be taken to the right page in the bundle. They still need to be addressed in cross examination, and they need to be able to see a lot of parties in the appeal who were present in the room. That's not always possible. Depending on the technology available, there's a further issue. Which is that? How does a person who's participating in an appeal over a video link give and take instructions or advice from their legal team? The practicalities simply haven't Bean worked out as off the time off this webinar? And as off the time off the Supreme Court's decision, There was also the fact that the question is, Who's going to pay for all this technology in Kyrie and blamed loss evidence was produced that what one of the appellants would have to hire a videoconferencing facility in the distant country outside of the UK and the cost would inevitably be for the full day. There might have to be rehearsal, set up and testing and so on to take place. The tribunal's practice was to require the appellants to actually pay for any equipment that was going to be hired in at the tribunal and again stacking up all these costs and taking into account that there's no legal aid available. The fact is that the actual economics off out of country appeals are stacked up against deportees and don't provide them with fair access to the tribunal and with an effective appeal. Right? And so this all came to the overall conclusion off the Supreme Court's that the Ministry of Justice and the secretary of state have not put in place adequate facilities to enable appellants in these cases to give live evidence and in the absence off such facilities at these certificates under Section 94 B could not be a proportionate decision when measured against the requirements. The procedural safeguards in Article 82 off the European Convention on Human Rights. And so in the two cases before the Supreme Court, the certification decisions were disproportionate breaches off their Article eight rights. So that served well, the claimants in that case. But what about other claimants, other clients, other people affected by Section 94 B certificates? Well, the situation is somewhat dynamic for clients who have had their human rights claims against deportation certified. They can now argue on a judicial review that those certification decisions are likely to be or are disproportionate breaches off their Article eight human rights. Bearing in mind, the lack of facilities to enable them to participate in their out of country appeals. But what about the people who have already bean removed pending their appeals or people who have actually removed themselves left voluntarily after a Section 94 B certificate has been made against them? Well, those clients will lead quite specific or fact specific advice on the remedies that may be open to them. Such remedies may include on this list is not exhaustive applications for compensation under the Home Office's Scheme for Compensating Persons for wrong wrongful decisions, applications for leave to enter based on exceptional circumstances. Given that the Section 94 b the deport now appeal later, policy has now bean effectively dismantled in the Supreme Court in the majority of cases. But also there may have to be applications to set aside any tribunal judgments that have Bean made as a result of any out of country appeals. Those determinations are unlikely to be seen as safe, bearing in mind that Article eight is likely to have been compromised in the majority off cases, but perhaps more significantly for people who are now out of the UK how are they going to be able to provide instructions to lawyers to make all these applications or to pursue such compensation. The logistics off this are challenging, though not impossible. But it does raise the concern the lingering concern in this scenario that there may well be people who have bean removed or removed themselves. Who shouldn't have been. There are people whose Article eight rights to family life have bean compromised. People whose appeal rights on and merits off their appeal have bean weakened significantly by the exercise off this power by the secretary of state. What happens to them is not specified in the judgment off Chiari and blend loss on. We haven't seen any specific scheme to compensate or remedy such clients, but it's worth bearing in mind that there is a form of injustice that has bean taking place here in relation to Article eight rights to family life and the final point of practice to emphasize coming out of this is what I was discussing earlier in terms off judicial review and the idea that evidence may well be appropriate in judicial review claims. Now, many of us have gotten used to keeping new evidence out off judicial review because of the nature of that procedure because of the fact that it is supposed to concern the legality of a decision at a specific time rather than a fresh assessment off proportionality under Article eight. Well, we are now being told or what is being suggested in the Supreme Court that a radical departure is appropriate certainly where one is challenging Section 94 B certificates, but possibly also in other contexts where Article eight or where convention rights are engaged. So there is a fundamental point of practice which practitioners ought to take note off. In terms of the changing trends in judicial review, there is now arguably more scope to introduce evidence into Judit judicial review proceedings in appropriate cases. And whilst the future off out of country appeals is doubtful now, following this judgement in Chiari and blend loss, at least in the context of Section 94 B certificates, unless and until adequate and affordable facilities are put in place in the tribunal to enable adequate out of country appeals to be heard, we may be waiting some time before this power that this policy of deport now appeal later is actually enacted in reality on becomes something that actually provides appeal rights that have meaning and substance rather than appeal rights that simply are no effective. Thank you for listening to this webinar on. Do. If you find an interesting do, please send us and feedback or complete the questions that are attached to the evaluation sheet. Thank you.