In 2013, as home secretary, Theresa May pledged to her party that foreign criminals with outstanding appeals would no longer be permitted to remain on British soil in cases “where there is no risk of serious and irreversible harm”. By holding that the crippling “deport first, appeal later” (DFAL) provisions of the Immigration Act 2014 are unlawful, the Supreme Court continued the trend of departing from the Court of Appeal’s conservatism. Both appellants had convictions for serious drugs offences. Presently 23, Kiarie, a Kenyan, came to the UK aged three and lived with his family acquiring ILR in 2004. Presently 36, Byndloss, a Jamaican, entered the UK aged 21 acquiring ILR in 2006. Byndloss and his wife have four children and he also has numerous further children from other relationships. Deportation orders were made for both appellants pursuant to the automatic deportation regime under section 32(5) of the UK Borders Act 2007. The decision-makers rejected the appellants’ claims that exception 1 in section 33 applied with the result that their deportation would breach their rights under article 8 of the ECHR. Overall, Lady Hale and Lords Wilson, Carnwath, Hodge and the late Lord Toulson distanced themselves from Richards, Elias and McCombe LLJ’s interpretation of the public interest in DFAL cases.
DFAL certification pursuant to section 94B of the Nationality, Immigration and Asylum Act 2002, as inserted by section 17 of the 2014 Act, accompanied the deportation orders. However, despite the use of the DFAL provisions, no “clearly unfounded” certification was made under section 94 of the 2002 Act. This meant that the appeals were arguable. Lord Wilson observed that 1,175 DFAL certificates for foreign criminals were issued between July 2014 and December 2016. The overwhelming majority of these individuals were deported in advance of their appeals. Only 72 notices of appeal were filed from abroad and virtually all the appeals had failed. Speeding up the expulsion of criminals, preventing them from dragging out the appeals process and building up article 8 rights were the foundations of DFAL. But deporting appellants ahead of their appeals incurred high costs for them. The equipment needed to participate from abroad minimally costs £526. Renting suitably equipped premises costs thousands of pounds.
These appeals raised the issue whether the home secretary breaches a person’s human rights by applying the DFAL system without making proper provision for him to participate in the hearing of the statutory appeal irrespective of the appellant’s prospects of success. For example, Nare  UKUT 443 (IAC) held that departing from the standard courtroom practice of giving direct/live oral evidence would undermine the quality of evidence, its testing and its judicial assessment.
The Court of Appeal
Since DFAL certification cannot be appealed, both appellants instituted judicial review proceedings but were unsuccessful at the permission stage. Allowing the onward appeals in part, Richards LJ granted permission to apply for judicial review but he would have dismissed both appellants’ substantive claims. Whilst the DFAL certifications were based on a misdirection that the appellants would not face a real risk of serious irreversible harm if removed with their appeal pending, that misdirection was immaterial in Kiarie’s case and the first certification of Byndloss’s claim was subsequently corrected by a second certification.
The decision-maker had been entitled to find that Byndloss did not have a genuine relationship with his children. Any short-term interference with article 8 was justified because the balance came down firmly in favour of the proportionality of interim removal. It was held that in most criminal deportation cases the procedural requirements of article 8 were met by an out-of-country appeal.
The Supreme Court
The justices unanimously allowed both appeals and quashed the DFAL certificates. Pursuing an out-of-country appeal would breach article 8 because the appeal would not be effective. Lord Wilson gave the main judgment and Lord Carnwath provided an alternative basis for allowing the appeals.
(i) Lord Wilson
His Lordship held that the public interest in the effectiveness of a right of appeal outweighs the public interest underpinning the DFAL system. The DFAL issue was distinct from the question of a foreign criminal successfully resisting deportation by reference to article 8 under the “very compelling” circumstances test contemplated in Ali  UKSC 60 (see here). The key aim of section 94B is embedded in the appellants being “foreign criminals” whose deportation is conducive to the public good under section 32(4) of the 2007 Act.
Despite acknowledging the strong public interest in a foreign criminal’s removal in advance of his appeal, as evinced in the risk of re-offending and protracted delay, Lord Wilson nevertheless judged that “a wider public interest” running in the opposite direction was more important because Parliament had (historically) given a foreign criminal a right of appeal against the making of a deportation order under section 82(1) and (3A) of the 2002 Act. Overruling Richards LJ, his Lordship held:
35. … 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.
As demonstrated by Mamatkulov v Turkey (2005) 41 EHRR 25, DFAL’s criterion of serious irreversible harm shows some intersection with the ECtHR’s application of rule 39 relief. Yet the symmetry is incongruous because a statutory appeal to the immigration tribunal imposes much greater evidential demands on the appellant. Statute speaks clearly on the mechanics of DFAL. The overarching criterion governing certification militates against an appellant’s human rights being breached and the possibility of real risk of serious irreversible harm merely exemplifies the occurrence of a breach.
Since the guidance on DFAL muddles statutory clarity, Lord Wilson disassociated himself from Richard LJ’s analysis that ECHR rights would rarely be in breach in the absence of a risk of serious irreversible harm. To do so would trick decision-makers into believing that it is safe to focus on attaching a real risk of serious irreversible harm to the prospective appellant whereas a clear focus on such harm to the prospects of his appeal potentially produced the conclusion that DFAL would breach his ECHR rights.
Under section 6(1) of the Human Rights Act 1998, as public authorities, the courts are obliged to uphold ECHR rights. Insofar as judicially reviewing a section 94B certification is concerned, independent judicial analysis is needed to decide whether DFAL would breach the appellant’s ECHR rights. Despite the weightiness of public policy considerations and the respect to be paid to the primary decision-maker’s conclusions, invoking Lord Neuberger’s rationale in Lord Carlile  UKSC 60 (see here), Lord Wilson held that:
43. … There is no doubt that, in making that decision, it must assess for itself the proportionality of deportation at that stage.
In the deception case of Giri  EWCA Civ 784, Richards LJ applied the Wednesbury principle to hold that the decision-maker’s fact finding had not been unreasonable. In these appeals, he used it as authority to fortify his findings on the standard/intensity of judicial review: normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context. However, Giri did not engage section 6(1) of the 1998 Act. Richards LJ’s approach conflicted with Pinnock (Nos 1 and 2)  UKSC 45,  UKSC 6 where the Supreme Court held that in an appropriate article 8 case the court’s powers of review can extend to reconsidering for itself the factual findings of the decision-maker and to consider new facts arising after proceedings are issued by hearing evidence and forming its own view.
Moreover, in Lord Carlile, Lord Sumption ruled out the possibility of an “absolute constitutional bar” to the court’s role in reviewing – when relevant and necessary – the compatibility of executive decisions with human rights. Accordingly, pursuant to the duty under section 6 of the 1998 Act, Lord Wilson encouraged a “more proactive” judicial approach and held:
47. Even when elevated by the protean concept of “anxious scrutiny”, application of the Wednesbury criterion to the right to depart from the home secretary’s findings of fact (including any refusal to make such findings) in the course of a judicial review of her certificate under section 94B is in my opinion inapt.
Thus, even in ongoing judicial review proceedings, the court’s residual power to determine facts and to receive oral evidence is not in doubt and needs to be recognised.
In the national security case of Al-Nashif v Bulgaria (2002) 36 EHRR 655, the ECtHR found that the absence of the possibility to appeal against a deportation order caused an unlawful interference with article 8 and the associated right to an effective remedy under article 13. Having examined other Strasbourg jurisprudence on the right to an effective remedy, De Souza Ribeiro v France (2014) 59 EHRR 10 as indorsed in Khlaifia v Italy  ECHR 1124 (see here), Lord Wilson concluded that article 8 requires that an appeal against a deportation order by reference to a claim in respect of private and family life should be effective. An alternative route to the same conclusion was found in Gudanaviciene  EWCA Civ 1622 where Lord Dyson MR invoked W v UK (1988) 10 EHRR 29.
The DFAL system significantly weakens an arguable appeal. These cases turned on whether section 94B certification obstructs a foreign criminal’s ability to effectively present his appeal. On the practical side, bringing an appeal from abroad obstructs the appellant’s ability to present his case. Several obstacles confronted DFAL appellants. Since the availability of legal aid is unclear, an appellant might well have to represent himself.
Even in cases where legal representation is available, formidable difficulties exist in giving and receiving instructions prior to and during the hearing. The court expressed “grave doubts” as to whether an appellant could effectively run his case without giving oral evidence to the tribunal. Given that a witness statement alone is a poor device for a criminal to show atonement for his sins, stressing the importance of live evidence in proceedings Lord Wilson sagaciously remarked:
61. … In any event, however, I cannot imagine that, on its own, the statement will generally cut much ice with the tribunal.
DFAL prevents appellants from giving oral evidence but surviving cross-examination and giving direct oral evidence are key traits of the appeals process. According to the court, an appellant whose relationships are under scrutiny must be able to give live evidence to the tribunal so it can evaluate his rehabilitative efforts and the quality of his relationships with others in the UK, in particular with any child, partner or other family member.
In contrast to these appeals, DFAL cases involving the Citizens’ Directive permit an interim order to suspend enforcement of the removal decision and also allow appellants to return temporarily to the UK in order to give evidence in person to the tribunal. Lord Wilson was unimpressed by the suggestion that a witness summons requiring the present appellants’ attendance could be issued because the summons is not enforceable in relation to a person outside the UK.
On the issue of video link or Skype evidence, he held that although on screen evidence is not optimum it might be sufficient to make the appeal effective for article 8 purposes – if indeed the opportunity to give evidence in that way is realistically available. For an appeal to be effective, an appellant must minimally be provided the opportunity to give live evidence. Even decades ago, in Khawaja  UKHL 8, Lord Fraser reasoned that an out-of-country seriously disadvantaged appellants who had behaved deceptively: it was improper to regard appeal rights as “worthless” despite low prospects of success.
Answered by 98% of First-tier judges, the 2016 UK Judicial Attitude Survey found that 66% said that the standard of the tribunal’s IT equipment is poor. Lord Wilson concluded that the financial and logistical barriers to giving evidence on screen from abroad are almost insurmountable. DFAL certification failed to operate within a Convention-compliant system for the conduct of an appeal from abroad. The MoJ failed to provide appropriate facilities at hearing centres, or some access to such facilities abroad, to enable appellants to participate in the hearing and give live evidence.
Insurmountable difficulties also arose in obtaining supporting professional evidence from (i) a probation officer as to the risk of re-offending (ii) a consultant forensic psychiatrist about the magnitude of risk and (iii) an independent social worker about the quality and importance of the appellant’s relationships with family members.
Deportation under the DFAL regime interfered with the appellants’ article 8 rights, especially in connection to the aspect of their rights that militates that their challenge to a threatened breach of their rights should be effective. The burden fell on the executive to establish that the interference was justified and did not blunt proportionality. Steered by Quila  UKSC 45, addressing the fair balance required by article 8, Lord Wilson judged that the executive failed to establish that DFAL strikes a fair balance between the rights of the appellants and the interests of the community.
(ii) Lord Carnwath
In a concurring judgment, his Lordship described the drafting of the DFAL provisions as “awkward”. Even in the interim with an appeal pending, Richards LJ could not be faulted for according weight to the public interest attached by Parliament to a foreign criminal’s removal because his approach constituted “a natural extension” of Lord Reed’s “great weight” analysis in Ali.
Lord Carnwath agreed with Richards LJ that article 8 does not require access to the best possible procedure, but only access to an effective and fair procedure. His Lordship said that subjective issues requiring the appellant to give live evidence, such as his rehabilitation, are unlikely to impact the effectiveness of his appeal for article 8 purposes. There was considerable force in the executive’s counterpoint that the general application of the Ali criteria will require assessing undisputed factual matters which can be proved without the appellant’s direct evidence. Lord Carnwath’s interpretation of the Strasbourg jurisprudence did not support a general view that appellant’s oral evidence is a necessary part of an “effective” appeal in the sense contemplated by De Souza Ribeiro (which was interpreted restrictively in IR v UK  ECHR 340).
However, exercising caution about “reaching a firm view” on the effectiveness of the appeals process because of his “very limited experience” of handling first instance appeals, Lord Carnwath nevertheless held that the executive’s fundamental problem was that it would be wrong in principle for her to dictate the conduct of the appellant’s case or the evidence on which he chooses to rely. The executive must be able, at the time of DFAL certification, to satisfy herself that the necessary facilities can and will be provided.
The outcome of these appeals is clearly driven by Lord Wilson’s opinion that anyone resisting deportation faces “a formidable hurdle” and “needs to be in a position to assemble and present powerful evidence.” His ruling inflicts a damaging blow to the “flagship” status bestowed upon the 2014 Act, for which the DFAL system served as the standard-bearer. Equally, his stimulation of a “more proactive” approach to judicial review, or a standard of intensity beyond “anxious scrutiny”, is a testament to the revolutionary nature of the 1998 Act because it effectively ends the era of judicially “forbidden areas” in human rights cases by modifying – albeit not abrogating – traditional notions of the constitutional distribution of powers.
Addressing the testing concept of “very compelling reasons”, Lord Wilson also replicated the Strasbourg jurisprudence on deportation by focusing on factors such as (i) the depth of the deportee’s integration into the host society (ii) the quality of family relationships (iii) the extent of endurance of family relationships after deportation (iv) the need to safeguard and promote the welfare of any child (v) the strength of the obstacles to the deportee’s integration in the home country and (vi) any significant risk of re-offending. Because it rejected DFAL certification on a more fundamental basis, the court did not need to specifically consider Byndloss’s relationship with his children.
From December 2016, the scope of the section 94B power was expanded by section 63 of the Immigration Act 2016. The sinister “remove first, appeal later” (RFAL) regime was not under challenge in these proceedings. RFAL allows decision-makers to certify any human rights claim, i.e. even in cases without any criminality and liability to deportation. Because it is unlawful just like its DFAL sibling, to prevent future confusion and illegality, Lord Wilson unambiguously warned decision-makers in advance that the court’s decision “will surely impact on the extent of its lawful exercise”.