Nixon & Anor, R (On the Application of) Secretary of State for the Home Office  EWCA Civ 3, 17 January 2018
The Court of Appeal has refused a judicial review application and permission to appeal in two cases where the applicants were required to pursue their challenges to deportation "out of country" rather than in the UK. Where the Secretary of State has rejected a human rights claim, and deportation is considered in the public good – because the deportee is a foreign criminal – there has been debate about the effectiveness of an out-of-country appeal .
The facts of this case are similar to the case of R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department  EWCA Civ 1020. In each case, the appellant was threatened with deportation as a result of offending, but he contended that deportation would be in breach of his right to private and/or family life under article 8 of the ECHR. We posted on Kiarie and Byndloss here. The Court of Appeal held in that case that the Secretary of State could properly proceed on the basis that an out-of-county appeal would meet the procedural requirements of article 8 in the generality of deportation cases, because such an appeal met the essential requirements of effectiveness and fairness. The Supreme Court reversed the ruling on the specific facts of the case before them. But their conclusion – that in the cases of Kiarie and Byndloss, the out-of-country appeal procedures were inadequate – does not affect all cases thus certified. All questions of adequacy of evidence and video links have to be considered on a case by case basis, taking into account the efforts made by the individual applicant to advance their case. Not all decisions depriving people of the right of appeal from the UK will be unlawful; it depends on the facts.
In the present case, both Nixon and Tracey were Jamaican nationals. Following a substantial period of residence in the UK, each was served with a deportation order after being convicted of criminal offences. The response of each was the same – a human rights claim that to deport him would be in breach of article 8 – and, in each case, that claim was not only refused but certified under section 94B. Nixon was removed to Jamaica and Tracey's removal was delayed by a stabbing incident, but he was still caught by the 94B certificate.
After the Supreme Court handed down its decision in Kiarie, Nixon contended that his deportation would interfere disproportionately with the article 8 rights of him and his relevant family members (including his son). He contended that his deportation in September 2016, with its resulting separation from his wife and son, had resulted in the disruption of his family life under article 8, and that the breach was continuing. His counsel contended that the Court should make a mandatory order requiring the Secretary of State, at her expense, to return him to the UK.
The Court did not accept this. An out-of-country appeal will not always be ineffective in protecting the human rights involved. Whether it will be effective will depend upon the facts and circumstances of the particular case. As far as Mr Nixon was concerned, the Court considered that he was perfectly able, as part of his out of country appeal, to put forward any information and evidence he wished to rely upon in respect of his contention that his deportation interfered with his family life. Even if someone is deported on the basis of an unlawful certificate, the court has a discretion as to whether to make a mandatory order against the Secretary of State to return him to the UK so that he can conduct his appeal in-country. That discretion is wide, and there is no presumption in favour of return, even where certification is unlawful. There is, said Hickinbottom LJ,
a public interest in deporting foreign criminals – and in not returning foreign criminals who have been deported …
There is also a public interest in public money not being expended on arranging for returning a deportee to this country to conduct an appeal which could adequately and fairly be conducted from abroad. [para 75]
The court considered Nixon's claim to family life to be unsustainable. There was no evidence that he had seen his wife or son since he was imprisoned for the assault on the former in August 2014. Neither his wife nor his son had visited him in prison. There was no evidence of any contact between them since his removal in September 2016. The evidence that an out-of-country appeal would be ineffective in protecting the article 8 rights of Nixon and his family members was therefore "weak".
For this reason, Nixon's application for a mandatory order requiring the Secretary of State to return him to the United Kingdom was refused. Instead of continuing with this judicial review, this is now a matter to be determined by the First Tier Immigration Tribunal. That Tribunal is, in Lord Justice Hickinbottom's view, the "more experienced and appropriate forum" for the determination of factual issues such as those that arise in this case, notably the nature of the relationship between Mr Nixon, and his wife and son.
It is inherently better for that issue to be considered on the basis of the facilities that are in fact made available for this case, as opposed to the Administrative Court conducting the exercise hypothetically, on the basis of general evidence provided by the Secretary of State. As I have indicated, there is reason for some confidence that the First-tier Tribunal will be in a position to conduct an effective appeal. Without falling into the heresy identified by the Supreme Court in Kiarie & Byndloss, it is nevertheless worthy of note that the tribunal will of course be under an obligation to ensure the appeal is effective, and will no doubt take appropriate steps to ensure that it is so. [para 87]
Tracey had entered the UK with his mother when he was two. When he was thirteen, he embarked on a series of assaults, fraud, theft and drug offences for which he was convicted on 22 occasions until he was 18. This was October 2014. On 12 February 2015, he was served with a stage one deportation order on the ground that his deportation would be in the public good in view of his persistent offending. Later, whilst that order was pending, he was convicted a further twice, for a drug-related offence and for interfering with a vehicle.
In his case, arrangements for removal to Jamaica had been made but not implemented. Tracey's contention, which formed the focus of his application to this court, was that an out-of-county right of appeal did not provide adequate and effective protection of his article 8 rights. However, the Upper Tribunal found no evidence that Tracey would face a real risk of serious irreversible harm if removed to Jamaica pending any appeal against his human rights claim, and, given the legitimate aim of protecting the public from his criminal activity, it would not be disproportionate for him to be removed, him being "young, fit and resourceful" and modern means of communication would allow him to maintain contacts with people in the UK.
The Court of Appeal's decision
In neither of these cases was the Supreme Court's decision in Kiarie & Byndloss of any assistance to the applicants. As Hickinbottom LJ pointed out, there is nothing in that ruling to say that an out-of-country appeal against a human rights claim in the deportation context cannot be effective. All it did was confirm that whether such an appeal will be effective, or a breach of the procedural requirements of article 8, will depend upon the circumstances of each particular case.
The Secretary of State's difficulty in Kiarie & Byndloss was that there was no evidence that she had considered the practical difficulties in, and potential undermining effect of, an out-of-country appeal in those two cases. But here, she clearly did. As I have described, at the time of the relevant decision, her decision-maker said that there were facilities available in Jamaica that would enable Mr Tracey to have sufficient access to instruct his representatives, and take advice from them; and for him to play an appropriate part in any appeal, including, if necessary, by giving evidence by video-link. At any hearing, the tribunal would, of course, have an obligation to ensure that his rights were properly protected, and take appropriate action to ensure that they were. I am not saying that the tribunal's duty under the Human Rights Act 1999 can be relied upon in every case to ensure compliance with articles 6 and 8 of the ECHR. But, in this case, there is simply no evidence that Mr Tracey's article 8 rights would be adversely affected by his appeal being dealt with out-of-country.