After a raft of cases on the “foreign criminal” theme – such as Nouazli  UKSC 16, Johnson  UKSC 56, Makhlouf  UKSC 59 and Hesham Ali  UKSC 60 – were decided last year, Kiarie and Byndloss (Appellants) v SSHD (Respondent) are yet more appeals involving the controversial subject of deportation to have reached the Supreme Court. The big difference is that these conjoined appeals arising out of the “deport first, appeal later” regime are probably just the first in a long series of cases that will require the justices to interpret the testing mechanics of the Immigration Act 2014. Lady Hale and Lords Wilson, Carnwath, Hodge and Toulson recently heard these appeals and reserved judgment on the issue whether section 94B of the Nationality, Immigration and Asylum Act 2002 complies with the procedural and substantive protections under article 8 of the ECHR. Kiaire and Byndloss both had indefinite leave to remain in the UK but received imprisonment of two and three years respectively because of their unconnected convictions for serious drug offences. Consequently, the home office decided to deport Kiaire to Kenya and Byndloss to Jamaica. Kiaire spent most of his life in the UK with his parents whereas Byndloss has a British spouse and has at least seven children by different partners.
It was mandatory under section 32(5) of the UK Borders Act 2007 for a deportation order to be made in both cases unless an exception in section 33 applied. Kiaire was not initially informed that consideration was being provided to section 94B. The provision entered into force on 28 July 2014 and the Court of Appeal was “appalled by the complexity” of the way it interacted with the appellate process. Byndloss was notified that his human rights claim had been certified under section 94B with the result that his appeal could only be heard once he had left the UK. The decision-makers involved rejected the possibility that they faced a real risk of serious irreversible harm if removed from the UK while the outcome of any appeal was pending. Both appellants instituted judicial review proceedings against the decisions to certify their claims. BID and Byndloss’s children are intervening in these proceedings.
The Court of Appeal
Richards, Elias and McCombe LJ held that in most criminal deportation cases an out-of-country appeal would meet the procedural requirements of article 8. Richards LJ said that a section 94B certification decision raised a “distinct question” and was amenable to judicial review.
Statute requires the decision-maker to form an independent view on whether removal pending an appeal would breach the appellant’s human rights. To achieve that in article 8 cases relevant findings of fact need to be made and a proportionality exercise must be conducted in relation to those facts. Richards LJ held that such findings of fact are open to review on normal Wednesbury principles, applied with the appropriate contextual anxious scrutiny, but that Lord Carlile  UKSC 60 required the reviewing court to make its own assessment of proportionality while giving appropriate weight to any balancing exercise carried out by the decision-maker.
The executive has a discretion whether to certify or not when the condition in section 94B(2) and the criterion in section 94B(3) are met. The statutory condition in section 94B(2) is that there can be no certification unless removal pending appeal would not be unlawful under section 6 of the Human Rights Act 1998. The alternative ground for certification in section 94B(3) stipulating a test of “a real risk of serious irreversible harm” does not displace the statutory condition in section 94B(2). Richards LJ held that even if the decision-maker is satisfied that removal pending determination of an appeal would not produce a real risk of serious irreversible harm, that finding alone does not justify certification because:
35. … That ground does not, however, displace the statutory condition in subsection (2), nor does it constitute a surrogate for that condition.
Certification is not possible unless the condition in section 94B(2) is met. Accordingly, the risk of serious irreversible harm is not the overarching test. Contrary claims in the guidance on section 94B rendered it “inaccurate and misleading” because of the failure to focus on the central provision in section 94B(2). Deconstruction of the Strasbourg jurisprudence on the “serious irreversible harm” criterion was unnecessary and Richards LJ explained that decision-makers needed to consider whether removal would interfere with ECHR rights and whether any interference was proportionate. In light of SS (Nigeria)  EWCA Civ 550 and MF (Nigeria)  EWCA Civ 1192, the public interest in deporting serious foreign criminals was “strong” but:
44. … In deciding the issue of proportionality in an article 8 case, the public interest is not a trump card but it is an important consideration in favour of removal.
Although an in-country appeal is more advantageous than an out-of-country appeal, the latter complies with any procedural requirements because article 8 merely requires that the appellant should have access to a fair and effective procedure.
The executive is entitled to rely on specialist tribunals to maintain fair and effective appeal procedures irrespective of how appeals are heard. Any difficulties associated with preparing and presenting out-of-country appeals did not amount to a denial of effective participation in the process. The overall procedure was fair, particularly given the availability of electronic communication. Admittedly, things could malfunction in individual cases:
69. … but there is no basis for condemning an out-of-country appeal as inherently unfair.
Detention Action  EWCA Civ 840 made it pointless to complain that the executive’s decision forced an out-of-country appeal to be brought. Overall it was appropriate to proceed on the basis that non-suspensive appeals are symmetrical with procedural requirements under article 8 in the generality of criminal deportation cases.
By erroneously focusing on serious irreversible harm and by not providing advance notice regarding certification, decision-making in Kiaire’s case suffered from dual legal errors but these were immaterial. His was a Maslov  ECHR 546 type case and he relied on his private life more than his family life with his parents and siblings. The decision-maker rejected that there would be very significant obstacles to Kiaire’s reintegration into Kenya, where English is a lingua franca. For Richards LJ, the short-term interference with Kiaire’s private life was justified because the balance came down firmly in favour of the proportionality of interim removal.
The correct test was applied to Byndloss. The decision involved no error of law and was not perverse. It was futile to argue that no scope existed for section 94B certification wherever a meaningful relationship existed between the proposed deportee and a child in the UK. The proposition was at variance with ZH (Tanzania)  UKSC 4 and Zoumbas  UKSC 74 because it attempted to:
100. … elevate children’s best interests beyond a primary consideration in decision-making and to turn them into the paramount or determinative factor.
Attempting to anchor rights to his children did not aid Byndloss as he had no relationship with them. Both Kiaire and Byndloss’s appeals were allowed in part. Although permission to apply for judicial review was granted, Richards LJ would have dismissed both substantive claims.
At the close of proceedings, Lady Hale reassured everyone that the justices “don’t underestimate the importance of the issues” in the instant appeals.
Treating his children as a passport to his own rights, rather than as rights-holders in their own right poses a problem for Byndloss. The danger of overpitching children’s rights is apparent from Makhlouf where her Ladyship stressed that children are “rights-holders in their own right”. However, she remained equally adamant:
47. … But that does not mean that their rights are inevitably a passport to another person’s rights.
The new power under the Immigration Act 2016 to certify non-deportation cases – “remove first, appeal later” – was recently rolled out in December 2016. It is exercisable if the appellant had no leave when their human rights claim was made and does not rely on a relationship with a British family member.