Deportation of Foreign Criminals Before their Appeals Are Heard Is a Violation of their Fundamental Rights
August 4, 2017
R (on the application of Kiarie) & Another (Appellants) v Secretary of State for the Home Department (Respondent)
Supreme Court of the United Kingdom
 UKSC 42
Lady Hale Deputy President, Lord Wilson, Lord Carnwath, Lord Hodge, Lord Toulson
June 14 2017
Reported by: Linda Awuor & Enock Amolo
International Law-law of the Treaty-European Convention on Human Rights-fundamental rights and Freedom-right to respect for private and family life-whether the Secretary of State for the Home Department deportation orders violated Applicants’ right to private and family life, European Convention on Human Rights, 1958 (the Convention), article 8.
Immigration Law-Deportation-deportation of criminals-circumstances under which criminals can be deported pending appeals- whether the deportation of the Applicants pending appeals was conducive to the public good as contemplated in the immigration law, Immigration Act 1971, (the 1971 Act) section 3(5)(a).
The 1st Applicant, Mr Kiarie, had Kenyan nationality. He was aged 23 and had lived in the UK with his parents and siblings since 1997, when he was aged three. In 2004 he was granted indefinite leave to remain in the UK. He had been convicted of serious offences in relation to drugs. Sent to him under cover of a notice dated 10 October 2014 was an order made by the Home Secretary for his deportation to Kenya.
The 2nd Applicant Mr Byndloss, had Jamaican nationality. He was aged 36 and had lived in the UK since the age of 21. In 2006 he was granted indefinite leave to remain in the UK. He had a wife and their four children living there; and he had three or four other children also living there. He had been convicted of a serious offence in relation to drugs. Sent to him under cover of a notice dated October 6, 2014 was an order made by the Home Secretary for his deportation to Jamaica.
In deciding to make deportation orders against them, the Home Secretary rejected their claims that deportation would breach their right to respect for their private and family life under article 8 of the Convention. They appealed to the tribunal against the institution’s rejection of their claims. But, when making the deportation orders, the Home Secretary issued certificates, the effect of which was that they could bring their appeals only after they have returned to Kenya and Jamaica respectively as the Immigration Act of 1971 required and section 94B of the Nationality, Immigration and Asylum Act 2002, which had been inserted into it by section 17(3) of the Immigration Act 2014.
They claimed that the certificates issued by the Home Secretary violated their rights to private and family lives, and strict application of the immigration law that required them to appeal out of UK was aimed at denying them access to justice. They made an application for judicial review at the Court of Appeal which, appeal was dismissed leading to the application at the Supreme Court.
(i) Whether the Secretary of State for the Home Departments’ deportation orders violated the Applicants right to private and family life as provided for under article 8 of the Convention.
(ii) Whether the deportation of the applicants pending appeals was within the statutory context of Section 3(5)(a) Immigration Act 1971 and section 94B of the Nationality, Immigration and Asylum Act 2002 which required that that a person can be deported when its conducive to public good.
European Convention on Human Rights, 1958
Article 8- Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
Nationality, Immigration and Asylum Act 2002
Section 94B-Appeal from outside United Kingdom
(2) A person may not bring an appeal to which this section applies [in reliance on section 92(4)(a)] if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.
(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.
Immigration Act 1971
Section 3(5)(a) General provisions for regulation and control
3. (5) A person who is not patrial shall be liable to deportation from the United Kingdom-
(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
(b) if the Secretary of State deems his deportation to be conducive to the public good; or
(c) if another person to whose family he belongs is or has been ordered to be deported. A person who is not a British citizen is liable to deportation from the UK if the Home Secretary deems his deportation to be conducive to the public good.
UK Borders Act 2007
Section 32 automatic deportation
(1) In this section “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
4. For the purpose of section 3(5)(a) of the 1971 Act, the deportation of a foreign criminal is conducive to the public good.
Held: Lord Wilson, Lady Hale, Lord Hodge and Lord Toulson
- The Supreme Court was invested with responsibility for deciding whether two foreign criminals who, by reference to article 8, each had arguable appeals against the deportation orders made against them and who had rights thereunder for their appeals to be effective, would suffer a breach of those rights if they were to be deported in advance of the hearing of the appeals. For their appeals to be effective, they needed at least to be afforded the opportunity to give live evidence.
- There was no doubt that, in proceedings for judicial review of a certificate under section 94B of 2002 Act, the Court or Tribunal ought to also decide for itself whether deportation in advance of the appeal would breach the applicant’s Convention rights. There was no doubt that, in making that decision, it must assess for itself the proportionality of deportation at that stage. That was the position in R (Lord Carlile of Berriew) v Secretary of State for the Home Department, where it was observed that in circumstances where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision, or what was sometimes referred to as the balancing exercise involved in the decision.
- In Al-Nashif v Bulgaria, the Bulgarian authorities had deported the first applicant to Syria on grounds of national security. When prior to his deportation he had sought to appeal against the deportation order, the court had ruled that, in-as-much as it was on grounds of national security, the order was not open to appeal. The European Court of Human Right held that the deportation had interfered with the first applicant’s right to respect for his family life and that it followed from the absence of any facility to appeal against the order that the interference was not in accordance with the law within the meaning of article 8(2) which prevented the public authority from interfering with the right to family life. So the court held that Bulgaria had breached the first applicant’s rights under article 8.
- A requirement that some appeals against immigration decisions brought out-of-country had been a feature of the legal system referable to immigration ever since the Immigration Act 1971 (the 1971 Act) came into force. An obvious example was when people abroad applied unsuccessfully to entry clearance officers in British embassies and High Commissions for entry clearance, ie permission to be admitted to the UK. They often had a right of appeal to the tribunal against the refusal of entry clearance and they were required to bring their appeals from abroad. But such appellants were already abroad; indeed, their appeals were often in a narrow compass which surrounded their ability to satisfy the evidential (in particular the documentary) requirements of the Immigration Rules.
- The Appellants established that the certificates represented a potential interference with their rights under article 8. Deportation pursuant to them interfered with their rights to respect for their private or family lives established in the UK and, in particular, with the aspect of their rights which required that their challenge to a threatened breach of them should be effective. The burden then fell on the Home Secretary to establish that the interference was justified and, in particular, that it was proportionate: specifically, that deportation in advance of an appeal had a sufficiently important objective; that it was rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation should strike a fair balance between the rights of the Appellants and the interests of the community.
- A fair balance required by article 8 was that, while the Appellants had in fact established that the requisite balance was unfair, the proper analysis was that the Home Secretary had failed to establish that it was fair. Overarching criterion for certification under section 94B of the 2002 Act ought to have been that, removal pending appeal would not breach the claimant’s human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur. Subsections (2) and (3) were thought to have made that clear but unfortunately it was made far from clear in other cases.
- It was clear however that the cost of hiring the necessary equipment for use at the distant end of any evidence given by video link or Skype was only part of the cost which an appellant had to bear. He also had to bear the cost of providing the equipment for use at the hearing centre and he may well have to pay for the attendance, beside him, of someone able and willing to exercise the degree of control required by the tribunal. Apart, however, from having to meet the overall costs of giving evidence in that way, an appellant had to confront formidable, technical and logistical difficulties. Powerful evidence was to be given by the Appellants’ solicitors and other legal specialists in the field to the effect.
- In support of an appellant’s likely claim to have a close and active relationship with a child, partner or other family member in the UK, an appellant would not uncommonly adduce, as in the preliminary proceedings the 2nd applicant had already sought to do, a report by an independent social worker who, so he hoped, would have spoken of the quality, and in particular for the family the importance, of the relationship. But a report compiled in the absence of the social worker’s direct observation of the appellant and the family together was likely to be of negligible value.
- On whether the foreign criminals who, by reference to article 8, each had arguable appeals against the deportation orders made against them and who had rights thereunder for their appeals to be effective, would have suffered a breach of those rights if they were to be deported in advance of the hearing of the appeals.
Per Lord Carnwath Concurring
- The starting point was section 94B (2) of the 2002 Act, under which it was a precondition of certification that the Secretary of State considered that removal of a person to the relevant country in advance of the hearing of the appeal would not be unlawful under section 6 of the Human Rights Act 1998. Given the important consequences of certification, section 6 which provided for discrimination by state authority would be read precondition as implying a requirement for the Secretary of State to satisfy herself, on adequate information, that there would be no breach of section 6. In the circumstance, the alleged breaches related to the Appellants’ respective rights to family life under article 8 of the Convention.
- Although the power was discretionary, and the grounds were stated to include absence of risk of irreversible harm, there was no indication what other grounds there might be for exercise of the power, or indeed for declining to exercise it. Indeed, absence of such risk might be more readily understood as a pre-condition to certification (under subs (2)) rather than as a positive ground for exercising the power. It was not clear why in that respect a distinction was drawn between the pre-condition and the grounds.
- It was unfortunate that, whether because of the awkward drafting of the section or lack of clarity in the guidance, the existence of the section 6 precondition was wholly overlooked at the time of the original decisions in both cases at the High Court and Court of Appeal. There was no express consideration whether removal pending any appeal would be consistent with the appellants’ rights under article 8. Nor had the appellants been given any notice of, or chance to comment on the proposed certification. For those reasons, as the Court of Appeal correctly held, the decisions were legally flawed. They accordingly fell to be quashed, unless (in the case of 2nd Applicant) the error was remedied in the supplementary letter of 3 September 2015; or (in the 1st Applicant’s case, where there was no such supplementary letter) it was clear that the errors were immaterial, in the sense that proper consideration would have yielded the same result. The Court of Appeal so concluded in each case.
- It was necessary to distinguish between the substantive and the procedural aspects of rights afforded by article 8; between harm to the prospective appellant himself, and harm to the prospects of his appeal. As to the former he saw no reason to disagree with the conclusion that the Appellants’ substantive rights would not be disproportionately infringed by temporary removal pending a decision on their appeals, and that the Secretary of State was entitled so to find.
- Having made the initial decisions on a flawed basis it was for the Secretary of State to satisfy the Court that the error was immaterial. Her problem was that there was no real evidence of consideration of the practical problems involved in cases such as the present one in preparing and presenting a case from abroad. It was far from saying that those problems were not easy to overcome. However, the evidence before the Court did not show that the Secretary of State had the material necessary to satisfy herself, before certification, that the procedural rights of these appellants under article 8 would be protected.
Relevance to the Kenyan Situation
Constitution of Kenya 2010 provides for circumstances under which citizenship can be revoked. Under article 17 (c), a person who has acquired citizenship by registration, may lose the right if; the he/she has within five years after registration, been convicted of an offence and sentenced for imprisonment for a term of three years or longer.
There is also the Kenya Citizenship and Immigration Act, Chapter 172 Laws of Kenya which provides for citizenship, procedures and circumstances under which citizenship can be revoked.
Section 33 provides for prohibited immigrants and inadmissible persons. Sub-section (d) provides that a person who is reasonably suspected to be engaged in or facilitates the trafficking of narcotics, prohibited, controlled or banned substances is a prohibited immigrant.
Section 34 of the Act on the other hand provides for procedure of entry and removal of immigrants.
Where any person is removed or deported and they feel aggrieved, section 57 gives relief. It provides that:
57. (1) Any person aggrieved by a decision of a public officer made under this Act may apply to the High Court for a review of the decision.
(2) An appeal against the decisions of the Cabinet Secretary or of the Service under this Act may be made to the High Court.
The provisions of the Constitution and Immigration law in Kenya guarantees the right to citizenship and explains the procedures and guidelines on how deportation of criminals are conducted. The laws are important because they aim at protecting the rights and dignity of citizens from the hands of state officers.