R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department  UKSC 42: The Government's flagship scheme to deport foreign criminals first and hear their appeals later was ruled by the Supreme Court to be incompatible with the appellants' right to respect for their private and family life (reversing the decision below).
Mr Kiarie is 23 years old. He has Kenyan nationality but has lived in the UK with his parents and siblings since he was three. Mr Byndloss is 36 and has Jamaican nationality but has lived in the UK since he was 21. Both appellants received indefinite leave to remain in the UK. However, they were then convicted of possession of Class A drugs with intent to supply, for which they were imprisoned.
While they were in prison, the Home Secretary informed them that she intended to deport them. In response, they made representations that this would be contrary to their rights to respect for their private and family life under article 8 of the European Convention on Human Rights (ECHR).
Nevertheless, in October 2014 the Home Secretary made orders for their deportation. These were accompanied by certifications that appeals could only be brought against the decisions once they had arrived in Kenya and Jamaica, on the basis that deportation was not incompatible with their rights under the ECHR. This power derived from section 94B of the Nationality, Immigration and Asylum Act 2002, in force since 28 July 2014.
Although she had rejected the human rights claims, the Home Secretary did not order deportation on the alternative basis that the appeals were "clearly unfounded". In Mr Kiarie's case this was probably due to fact that he had lived in the UK for 20 years, whereas the fact that Mr Byndloss had children resident in the UK was probably the reason in his case. It therefore followed logically that the Home Secretary accepted that the appeals against deportation would be at least arguable.
The appellants' case
Mr Kiarie and Mr Byndloss intended to argue in their deportation appeals that deportation was incompatible with their rights under article 8, an argument which the Home Secretary had impliedly accepted was at least arguable. The appellants argued that these appeals would be greatly weakened if they had to be brought from outside the UK for several reasons.
First, their integration in the UK and family ties would already have been ruptured. This would weaken the arguments that deportation was incompatible with their rights to private and family life.
Secondly, they would face a number of practical difficulties in running their case: (a) they may not be able to obtain legal representation; (b) even if they could it would be more difficult to give adequate instructions; (c) they might not be able to give oral evidence at the hearing; and (d) they might not be able to obtain professional evidence from their probation officer and/or a consultant forensic psychiatrist about their risk of re-offending.
Particular emphasis was placed on the importance of oral evidence to enable the tribunal to properly assess the extent of the appellant's ties to the UK and whether they were of reformed character.
The Home Secretary's case
The Home Secretary argued that the strong public interest in the deportation of foreign criminals extends to their deportation in advance of their appeals. First, there would otherwise be a clear incentive for appellants to drag out the appeals process and use the delay to build up a stronger claim that deportation would be contrary to their rights to private and family life. Secondly, there was a risk that the delay would give appellants the opportunity to commit further offences in the UK.
In response to the appellants' arguments, the Home Secretary argued first that the fact that an appellant would have been in prison (and perhaps also immigration detention) meant that their integration in British society and ties to their family would already have been loosened.
Secondly, the fairness of the appeal hearing was highly unlikely to turn on the ability of the appellant to give oral evidence. In any event, the tribunal could permit the appellant to give evidence via video link or Skype if necessary.
However, this last submission was weakened by the fact that a survey had found that 66% of First-tier Tribunal judges considered that the standard of the tribunal's IT equipment was poor. Furthermore, there would be significant logistical hurdles to arranging for video conferences and evidence and the costs would have to be borne by the appellant themselves (estimated at over £1,500 each in this case).
The Supreme Court's decision
The Supreme Court found for the appellants. Lord Wilson, with whom Lady Hale, Lord Hodge and Lord Toulson agreed, held that in order for article 8 to be effective the appellants needed the opportunity to bring their appeals against deportation from within the UK. He stated as follows at paragraphs 76-77:
"… I conclude that, for their appeals to be effective, [the appellants] would need at least to be afforded the opportunity to give live evidence. They would almost certainly not be able to do so in person. The question is: as a second best, would they be able to do so on screen? The evidence of the Home Secretary is that in such appeals applications to give evidence from abroad are very rare. Why? Is it because an appellant has no interest in giving oral evidence in support of his appeal? I think not. It is because the financial and logistical barriers to his giving evidence on screen are almost insurmountable … Between 28 July 2014 and 31 December 2016 the Home Secretary issued 1,175 certificates pursuant to section 94B in relation to foreign criminals, all, therefore, with arguable appeals. Of those 1,175 persons, the vast majority were no doubt duly deported in advance of their appeals. But by 31 December 2016 only 72 of them had filed notice of appeal with the tribunal from abroad. It may well be that on 13 February 2017 a few of those appeals remained undetermined. The fact remains, however, that, as of that date, not one of the 72 appeals had succeeded."
Lord Carnwath, giving a separate concurring judgment, allowed the appeal on a more limited basis. Whilst he had doubts as to whether an effective appeal required an appellant to be able to give oral evidence, he considered that it would be wrong in principle for the Secretary of State to be allowed to dictate the conduct of an appeal. He concluded that he saw no reason in principle why modern video equipment could not provide an effective means of ensuring participation from abroad so long as the necessary facilities and resources were available.
The policy towards foreign criminals of "deport first, appeal later" was a Conservative manifesto pledge. Although it has not itself been ruled unlawful, this decision will severely circumscribe its application.
Furthermore, since December 2016 the policy has been extended beyond foreign criminals to cases such as people who have overstayed their leave to remain. The Supreme Court's reasoning ought to apply to those cases too, as oral evidence is similarly likely to be central to an appeal.
The question is where the Government will go from here. If it remains committed to the principle of "deport first, appeal later" it may seek to rely more heavily on the power to deport pending appeal in circumstances where the appeal on human rights grounds would be "clearly unfounded". However, these circumstances are very narrow and the Home Secretary would be vulnerable to judicial review if she relied on the power inappropriately.
Another option would be to take steps to provide the necessary resources for out of country appeals to take place using video evidence. However, this might well be too expensive to be practical.
It is therefore possible that this decision could see the policy of "deport first, appeal later" being scrapped (or quietly dropped). In the current political climate it is difficult to make firm predictions – only time will tell.