Landmark Chambers


Supreme Court Rules ‘Deport First, Appeal Later’ Certificates Unlawful

DATE: 14 Jun 2017

R (Kiarie) v SSHD; R (Byndloss) v SSHD [2017] UKSC 42

The Supreme Court gave judgment today in these major cases about the lawfulness of the “deport first, appeal later” provisions as applied in deportation cases affecting foreign criminals. It held that the certificates issued under s94B of the Nationality, Immigration Act 2002 were unlawful and should be quashed. The certificates were to the effect that removing the appellants pending appeal would not breach their convention rights. In quashing them, the Supreme Court overturned the Court of Appeal, which had held that the certificates had been issued on the basis of a misdirection because the Secretary of State had only considered whether there would be “serious irreversible harm” pursuant to s94B(3), and had not considered wider article 8 rights; but that this made no difference as the result would have been the same if the Secretary of State had applied the right test.

The leading judgment was given by Lord Wilson; with whom Lady Hale and Lords Hodge and Toulson agreed. It concentrated on the procedural aspects of Article 8, and held that an appeal from abroad would not be “effective”. It emphasised the need for an oral hearing at which the appellant could give evidence. Lord Wilson said:-

“In this case the Court of Appeal has indorsed a practice in which the Home Secretary has, not always but routinely, exercised her power to certify…But she has done so in the absence of a Convention-compliant system for the conduct of an appeal from abroad…”

Lord Carnwath agreed that the certificates should be quashed, but delivered a judgment in which he said “my emphasis is rather different.” He regretted the fact that the Court of Appeal had not remitted the cases to the specialist Upper Tribunal for its input into the appropriate procedure.

Richard Drabble QC (leading Joseph Markus) appeared for Mr Kiarie.     

Please click here for press coverage by The BBC. 

Please click here for press coverage by The Guardian.