The Supreme Court has ruled that the Home Office system of deporting foreign criminals before they can appeal is unlawful.
In the case of Kiarie & Byndloss v Secretary of State for the Home Department, the Supreme Court ruled that the ‘deport first, appeal later’ scheme is incompatible with the Appellants’ right to respect for their family and private life.
The policy was first announced by Theresa May in September 2013 when she was the Home Secretary and introduced into law under the Immigration Act 2014.
The power allows the Home Office to certify a deportation decision under section 94B which then prevents an individual from appealing the decision until he leaves the UK.
Between being given a deportation order and leaving the UK, the individual is forced to endure the ‘hostile environment’ in the UK under which he is not allowed to work, run a business, claim benefits, have a bank account, drive and even rent a property.
In an unanimous judgment, the Supreme Court has ruled that a right of appeal from outside the UK is not an effective right of appeal.
In other words, deportation obstructs an appellant’s ability to effectively present his appeal in the Tribunal.
This is because
- It is difficult to obtain legal representation from abroad.
- The appellant and his lawyer would face formidable difficulties in giving and receiving instructions prior to and during the hearing.
- The appellant should be able to give live evidence in person before the Tribunal to demonstrate how he is a reformed character and the quality of his relationships with others in the UK such as his children, partner and other family members.
- Giving evidence by video link from abroad is not realistic due to the financial and logistical barriers which are almost insurmountable. The appellant is responsible for the full costs of the video link facilities in the UK and the country he is in.
- The appellant would be unable to obtain professional evidence from their probation officer or a consultant forensic psychiatrist about their risk of re-offending.
- Any family assessment report by an independent social worker would be of negligible value if compiled without the expert observing the appellant and the family together.
The ruling will be a huge blow for Theresa May’s plans to deprive immigrants of the right to fight their appeals while remaining in the UK.
Since December 2016, the government extended the policy beyond foreign criminals to all human rights claims by immigrants with no criminal history.
The Supreme Court observed that although the extended power was not being considered by it, the decision will surely impact on the lawfulness of the new ‘Remove First, Appeal Later’ scheme.
This is likely to be the end of the road for Theresa May’s ill-thought out scheme to reduce net migration.
Winning a deportation appeal is always an uphill struggle.
Doing so from abroad makes it an almost impossible task.
Between 28 July 2014 and 31 December 2016, the Home Secretary issued a total of 1,175 certificates under 94B.
Only 72 of them had appealed from abroad.
Not one of them was allowed.
It remains to be seen what the government now does but it would seem that it has no choice but to scrap the scheme.
Whether it decides to replace it with something equally bad or worse, time will tell.
For now, we should celebrate this ruling which allows appellants the right to a fair hearing before an independent tribunal.
The full Supreme Court judgment can be read here.
Visadreams.com, Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London. If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at firstname.lastname@example.org or submit your details here.