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When the public interest is outweighed by the wider public interest: The Supreme Court judgment of Kiarie and Byndloss [2017] UKSC 42

DATE: 15 Jun 2017

Declan O'Callaghan

  1. The ‘public interest’ is a concept that is easily referenced but difficult to accurately define. It has a basis in traditional political philosophy, being grounded in the notion of a common good, but can easily seek to justify the will of what James Madison identified as the will of ‘interested factions’.[1] What one may declare to be clearly in the public good, another may call an outrage. Often it is left to the judiciary to decide where the public interest lies, despite several often contradictory factors potentially shaping such interest: societal values, cultural sensitivity, historical events, moral perception, a balance of interests to name but a few. 

  2. Whilst there has been a growth in domestic legislation requiring a decision-maker to make a decision in the light of public interest, in immigration matters the most striking example has been the seeking to control the approach taken to rights protected by Article 8 ECHR. Statutory provisions and the Immigration Rules have sought to place constraints upon such rights. An example can be identified by the insertion of sections 117A-D into the Nationality, Immigration and Asylum Act 2002 by way of the Immigration Act 2014. Consequent to such amendment, whether a decision or act made by the Home Office under the Immigration Acts breaches a person’s rights under Article 8 now requires a court or tribunal to ‘have regard’ to a series of specified ‘public interest’ considerations. 

  3. A further example as to the greater role the present Government identified for the ‘public interest’ in immigration matters was the introduction by way of section 94B Nationality, Immigration and Asylum Act 2002 of a means by which a statutory in-country right of appeal could be converted into an out-of-country appeal, requiring a foreign national to leave, simply because the public interest (as identified by the Home Office) demanded it. This section when it first came into force, on 28 July 2014, was only applied to persons subject to deportation proceedings. With effect from 1 December 2016 the Home Secretary’s power to certify under the section was extended to permit the certification of any human rights claim irrespective of whether the foreign national is liable to deportation.[2] 

  4. Though the Supreme Court in Kiarie and Byndloss was concerned only with the law as it stood before 1 December 2016, it observed that ‘the extended power does not fall to be considered in these appeals but our decision today will surely impact on the extent of its lawful exercise.’ 

  5. The statutory provision permits the Home Secretary the means of requiring a foreign national seeking to either challenge a deportation order on Article 8 family or private life grounds, or seeking to challenge the refusal of an application to remain in this country on such grounds, to leave the United Kingdom before the hearing of an appeal. The issuing of a certificate thereby immediately changes a statutory right to an in-country appeal to one where appeal rights can only be exercised out-of-country. 

  6. To permit certification, the Home Secretary, or her agent or servant, is to conclude that there was no real risk of the foreign national suffering ‘serious irreversible harm’ if they were to be removed from this country pending the outcome of any appeal. 

  7. The basis for such a legislative hammer can be identified by the then Home Secretary’s speech at the Conservative Party Conference in September 2013:[3] 

    “Where there is no risk of serious and irreversible harm, we should deport foreign criminals first and hear their appeals later.” 

  8. It is to be noted that two, linked, objectives were identified by the Minister for Immigration when attending on the Public Bill Committee on 5 November 2013: to reduce delay in the determination by the tribunal of human rights appeals and to prevent an appellant’s abuse of the system by seeking to strengthen his claim during the pendency of his appeal.[4] It can be observed that what is an abuse to one party may be the continuation of loving family bonds to another. 

  9. The Court of Appeal in Kiarie and Byndloss accepted that certification under section 94B was amenable to judicial review on Wednesbury principles, applied with anxious scrutiny.[5]It proceeded to observe that the strong public interest in deporting foreign nationals who had committed serious criminal offences was not a trump card, but it was an important consideration in favour of removal. 

  10. Of concern to many who have had to cope with the multiple failings of video links to overseas appellants at the First-tier Tribunal,[6] and that is before the personal costs to appellants is factored in, the Court of Appeal blithely proceeded to determine that an out-of-country appeal would meet the procedural requirements of Article 8 in most criminal deportation cases. It is to be noted that that the Court was satisfied that the Home Office was entitled to rely on specialist immigration judges ensuring that appeal procedures were fair and effective and that the difficulties of preparing and presenting an appeal did not amount to a denial of effective participation in the process. Therefore, such procedure was not unfair, particularly given the availability of electronic communication. To some, the Court of Appeal failed to observe that Parliament had decided that the overarching criterion for certification under section 94B was that removal pending appeal would not breach an appellant’s human rights. The real risk of serious irreversible harm to an appellant’s rights was but one example of where a breach may occur. The focus placed on this test reliant as it were upon the perceived ‘public interest’ led to a failure to consider whether it was simply constituted ‘the expression of an interested faction’. The fundamental loss of an ability to enjoy a real presence at the hearing of an appeal, to provide live evidence and to actively participate in the preparation of such was unlawfully reduced in the proportionality exercise. The impact upon the prospects of the appeal was diminished in its consideration and was to be placed below that of the prospective harm to the appellant himself. 

  11. It would be apt to note that the Court of Appeal’s approach was firmly rejected by the Supreme Court. In less formal terms, it was taken to one side and brutally disposed of. The Supreme Court was unanimous: in an appeal brought from abroad, an appellant’s ability to present his case is likely to be obstructed in a number of ways. Even if s/he is able to secure legal representations, there remain difficulties in giving and receiving instructions both prior to and, as importantly, during the course of the hearing. As those who represent in court will heartedly concur, the Court observed that the effectiveness of an arguable appeal will often turn on the ability of an appellant to give live evidence to assist a tribunal in its assessment. In Article 8 matters this will often concern the quality of relationships with others in this country, in particular with a child, partner or other family members.

  12. As to the public interest, Lord Wilson, in giving the lead judgment with which Lady Hale, Lord Hodge and Lord Toulson agreed, held at [35]: 

    A somewhat stronger aspect of the public interest is the risk that, if permitted to remain pending his appeal, the foreign criminal would, however prejudicially to its success, take that opportunity to re-offend. To that extent there is a public interest in his removal in advance of the appeal. But in my view that public interest may be outweighed by a wider public interest which runs the other way. I refer to the public interest that, when we are afforded a right of appeal, our appeal should be effective. To be set alongside Parliament’s enactment of section 94B was its enactment of section 82(1) and (3A) of the 2002 Act, by which it gave a foreign criminal a right of appeal against the deportation order. In published guidance to her case-workers the Home Secretary has made clear that there is no need to consider certification of a claim under section 94B if it can be certified under section 94. So, as exemplified in the cases of Mr Kiarie and Mr Byndloss, a certificate under section 94B is of a human rights claim which is not clearly unfounded, which in other words is arguable. In my view therefore the public interest in a foreign criminal’s removal in advance of an arguable appeal is outweighed unless it can be said that, if brought from abroad, the appeal would remain effective.

  13. Lord Wilson confirmed that an effective in-country appeal requires that an appellant be afforded the opportunity to give live evidence. It was noted that whilst the giving of evidence on screen is not optimum, it may render an appeal effective but due consideration was to be given to the financial and logistical barriers that existed for an appellant in being able to give evidence on screen. It was noted by the Court that they are almost insurmountable.[7]

  14. The Court was strikingly direct in its concern that the Ministry of Justice had failed to make provision for facilities at hearing centres, or for access to such facilities abroad, so as to permit appellants the opportunity to give live evidence and participate in the hearing. Lord Wilson noticeably places great weight on the importance to an appellant in deportation proceedings of explaining his position orally [61]:

    In a witness statement he may or may not be able to express to best advantage his resolution to forsake his criminal past. In any event, however, I cannot imagine that, on its own, the statement will generally cut much ice with the tribunal … the tribunal will want to hear how he explains himself orally and, in particular, will want to assess whether he can survive cross-examination in relation to it.

  15. Simple, eloquent and devastating to the position adopted by the Court of Appeal. For those lawyers regularly acting in immigration tribunals, Lord Wilson has identified the core component of the appeal process: the ability of the appellant to explain and be challenged. In many cases an arguable appeal against deportation is unlikely to be effective unless there is a facility for an appellant to give live evidence to the tribunal.

  16. This is a consideration as to whether an appeal would be effective and the Court determined that it is one thing further to weaken an appeal that can already be seen to be clearly unfounded. It is quite another significantly to weaken an arguable appeal: such is a step that calls for considerable justification. 

  17. In a concurring judgment, Lord Carnwath held that it was wrong for the Home Secretary, a party to the appeal, to be permitted to dictate the conduct of an appellant’s case or the evidence on which he chooses to rely. The Home Office must, at the time of certification, be satisfied that the necessary facilities can and will be provided. It may well be that the ‘satisfaction’ test may be subject to further litigation if the Home Office continues to desire to issue section 94B certificates. In turn, lawyers for appellants may seek succour from paragraphs [66-74] where the difficulties inherent in securing a video link overseas are detailed with clarity. 

  18. At its heart, the Supreme Court’s judgment is rooted in the fact that the appeal granted to an appellant in such circumstances is an in-country one provided by statute. It noted that out-of-country appeals are usually conducted in circumstances where appellants are already abroad, their appeals are often in a narrow compass which surrounds their ability to satisfy the evidential (in particular documentary) requirements of the Immigration Rules, such claims do not usually involve a consideration of human rights and it is often the oral evidence of sponsors present in the United Kingdom rather than their own oral evidence which is more important. Lord Wilson observed that the situation is different when the proposed appeal is based on human rights. 

  19. A further important development is the willingness of the Supreme Court to identify (non-proscriptively) some of the very compelling reasons that a Tribunal must find before allowing an appeal, though it need not find all of them [55]:

    a)  The depth of the appellant’s integration in United Kingdom society in terms of family, employment and otherwise;

    (b)  The quality of his relationship with any child, partner or other family member in the United Kingdom;

    (c)  The extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise;

    (d)  The impact of his deportation on the need to safeguard and promote the welfare of any child in the United Kingdom;

    (e)  The likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case,

    (f)  Any significant risk of his re-offending in the United Kingdom, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.

  20. Such reasons are not wholly consistent with the ‘public interest’ provisions detailed by section 117C of the Nationality, Immigration and Asylum Act 2002 and indeed some may be construed as being wider in scope and therefore more favourable to an appellant. 

  21. So where do we stand? Section 94B remains on the statute book and the Supreme Court judgment does not mean that the Home Secretary cannot seek to utilise it. The difficulty for the Home Office is that it is a redundant power unless and until the Ministry of Justice can provide proper provision of video link in court and there is meaningful access from overseas. Unless such conditions are met, the seeking to convert a statutory in-country appeal under the 2002 Act into an out-of-country appeal will remain unfair and ineffective. 

  22. The lawfulness of the certificate is identified as being the date of its issue, which will usually be the date of the original substantive decision. For those who have left the United Kingdom and are awaiting appeal hearings, steps should be taken to secure their return. Imminent hearing dates should properly be adjourned as the imposition of an out-of-country appeal was unlawful. Future listings could be protected, if so wished, so as to enable a client’s return and the filing of an in-country appeal. Such appeals may be linked to existing out-of-country appeals so as to preserve hearing dates, being mindful of the lengthy delays presently being experienced at the First-tier Tribunal. 

  23. Those who left the country, or were removed, and were unsuccessful on appeal can seek their return on the basis that they were removed illegally and denied an in-country right of appeal. It is to be hoped that they have remained in contact with their lawyers in the United Kingdom. 

  24. It is appropriate to observe that the Home Office may be liable to fund the return travel costs of those who were removed or left to pursue an out-of-country appeal. By way of its guidance ‘Certification under section 94B of the Nationality, Immigration and Asylum Act 2002’ version 8.0 (20 January 2017) the Home Office accepts at the section entitled ‘successful appeals’ at pages 30-31: 

    • If there is a deportation order and a claimant’s out-of-country appeal against the refusal of a human rights claim succeeds, the order will normally be revoked and the claimant may apply to return to the UK.  

    • If requested, consideration must be given to whether the Home Office should pay for the claimant’s journey back to the UK.  

    • In considering whether to pay for the claimant’s journey back to the UK, regard should be had to the following factors: 

      • the quality of the Home Office’s decision to refuse the human rights claim  

      • the status of the claimant before their removal  

      • whether the appeal was allowed on the basis of evidence or information that the claimant failed to submit to the Home Office in advance of their removal despite a section 120 notice or other opportunity, and if so, whether there is any reasonable explanation for this  

      • whether there is compelling evidence that if the Home Office does not pay for the return journey the claimant would be unable to return to the UK, there is no prescribed evidence to be submitted, but examples of relevant evidence might include bank statements for the claimant and any family members, you should also take into account any evidence pertaining to the financial circumstances of the claimant and any family members which was already available prior to removal, and consider the claimant’s general credibility  

    • Where it is considered that the Home Office should pay for the journey back to the UK, financial authority must be obtained and signed off at a sufficiently senior level within the relevant business area, usually Assistant Director. 

    • Where a claimant received financial assistance to leave the UK, for example from the Facilitated Returns Scheme (FRS), but then successfully appeals the refusal of a human rights claim from abroad and wishes to return to the UK, the Home Office should not pay for the journey back to the UK.  

  25. There appears no good reason why successful appeal should not cover the quashing of the section 94B certificate. That removal was unlawful can clearly be read into the guidance as being a relevant factor. Indeed, consequent to the Supreme Court judgment it may well be that the factors identified above fall away. Persons who were required to leave and wish to return have succeeded in respect of challenging the lawfulness of the section 94B certification and their consequent removal and so in such circumstances their travel costs should be met. There has been an unlawful interference with their protected human rights. It is only upon their return that they can file an in-country appeal and they are to be permitted the opportunity to return. It should not be the case that to remedy the wrong they are required to establish destitution before travel costs are provided. 

  26. As a final observation, it should be noted that the Home Office cannot appropriately seek to rely upon the Court of Appeal judgment as establishing a defence of lawfulness as at the date of removal. The Supreme Court was stating the law as it had always been: Kleinwort Benson Ltd. v Lincoln City Council [1999] 2 AC 349. Consequently, for every individual the section 94B certification was always unlawful.

 

[1] Federalist No. 10

[2] Section 94B amended by section 63 of the Immigration Act 2016

[3] The Rt. Hon. Theresa May MP, the present Prime Minister.

[4] Mark Harper MP; Immigration Bill Deb 5, cols 205, 206

[5] R. (on the application of Byndloss) v Secretary of State for the Home Department; R (on the application of Kiarie) v Secretary of State for the Home Department [2015] EWCA Civ 1020; [2016] 1 WLR 1961

[6] The author was recently informed at a tribunal centre that an application to use Skype could not be permitted due to insufficient bandwidth.

[7] At a recent hearing in which the author represented, the appellant was able to secure a video link through a company in Pakistan at the rate of £180 per hour with a minimum of two hours to be paid. This is a significant sum by Pakistan standards where the average annual wage is $1500.