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'Clearly unfounded' certificates

Chapter number: 
3
Section: 
The Decision
Last updated: 
31 March 2018
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project

3.1 The most urgent point to check when you receive the refusal letter is whether the claim has been certified such that an appeal can only be brought from outside of the UK. Appeals might also be certified under s96 of the 2002 Act, with the effect that there is no right of appeal at all. Section 96 certification is considered in chapter 5.

3.2 […]

3.3 The effect of certification is that your client is denied any in-country appeal before being expelled to her country of origin. She may bring an appeal from her home country but the Court of Appeal noted in ZL and VL v SSHD [2003] EWCA Civ 25 that this is 'scant consolation' when she has already been removed to the country where she fears persecution and human rights abuses. Such appeals are not covered by this text.

3.4 The only means of preventing the Home Office removing your client without an effective appeal on the merits is to judicially review its certificate. This chapter gives a summary of some of the procedures and issues involved up to the consideration of the permission application on the papers. But these cases are complex, the Home Office tends to fight them hard, and the extraordinarily tight time limits applied to claimants mean that a mistake can be disastrous. They should be undertaken only if you are experienced in bringing judicial review proceedings. Otherwise, refer the judicial review to someone else.

3.4A In appeals against a refusal of international protection, the main form of certification available to the Secretary of State is a 'clearly unfounded' certificate under s.94 of the 2002 Act. This chapter also considers the Home Office's powers to certify human rights appeals under s. 94B of the 2002 Act, originally inserted by the Immigration Act 2014 and amended by the Immigration Act 2016 to cover all human rights appeals, insofar as temporary removal would not result in serious irreversible harm. S. 94B certificates also have the effect that any right of appeal can only be exercised from outside the UK.

3.4B However, at the time of writing, removals pending appeal under s.94B have been suspended by the Home Office following the Supreme Court's judgment in R (Kiarie) v SSHD [2017] UKSC 42. Also following this judgment, 3 August 2017, the guidance entitled 'Certification under section 94B of the Nationality Immigration and Asylum Act 2002' was withdrawn. In Kiarie the Supreme Court held that the temporary removal of the appellants pending their appeals against deportation violated Article 8 in its procedural aspect due to the significant difficulties they would face in mounting an effective appeal from abroad.

'Clearly unfounded' certificates: the test for certification

3.6 If your client is from a designated country, the Home Office is required by s.94(3) to issue a certificate if the claim is clearly unfounded. For other countries, the Secretary of State has a discretion whether or not to certify a claim that is clearly unfounded.

3.7 The following countries are designated under s.94(4) (as amended by subsequent orders): Albania, Macedonia, Moldova; Bolivia, Brazil, Ecuador, South Africa, Ukraine; India; Mongolia, Bosnia-Herzegovina, Mauritius, Montenegro, Peru, Serbia, Kosovo and South Korea. The designation of a country may be challenged by judicial review if the criteria in s.94(5) are not met.

Section 94(5) provides that

(5) The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that –

(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention.

3.8 Sections 94(5A-C) permits designation of a State in respect of a 'description of person'. The term 'description of person' is defined by s.94(5C) to encompass:

(a) gender

(b) language

(c) race

(d) religion

(e) nationality

(f) membership of a social or other group

(g) political opinion, or

(h) any other attribute or circumstance that the Secretary of State thinks appropriate.

The following countries are designated in respect of men only: Ghana, Nigeria, Gambia, Kenya, Liberia, Malawi, Mali, Sierra Leone. Home Office guidance formerly stated that the definition of 'men' referred to males over the age of 18 and that there was no obligation to certify a claim from a male under the age of 18 from one of the designated states. The Court of Appeal in R (MD (Gambia)) v SSHD [2011] EWCA Civ 121 concluded that this was the correct interpretation of the Order, having regard to the fact that age is also a "potentially relevant attribute" which could form the basis of certification. Whilst the current version of the guidance on certification does not expressly limit the designation to males over the age of 18, the Home Office will be bound to apply the Court of Appeal's decision in MD (Gambia).

3.8A The designation of a country may be challenged by judicial review if the criteria in s.94(5) are not met. In R (Husan) v SSHD [2005] EWHC 189 (Admin), Wilson J held that the designation of Bangladesh was unlawful because no reasonable Secretary of State could hold that there was in general no serious risk of persecution. The designation of Sri Lanka was withdrawn in the face of judicial review proceedings challenging the Home Office's failure to act notwithstanding the breakdown of the ceasefire.

3.8B However, in MD (Gambia) [2011] EWCA Civ 121, the Court of Appeal emphasised that the Secretary of State had a wide margin of appreciation in deciding to designate a State and held that, although there was 'troubling' evidence of human rights abuses in Gambia, they were not sufficiently generalised or systematic to mean that the Secretary of State could not designate it. Applying the test in R v SSHD, ex parte Javed [2001] EWHC 7 (Admin) (which related to the previous legislation), Elias LJ said that "the persecution must be sufficiently systematic properly to be described as a "general feature" in that country, and this in turn requires that it should affect a significant number of people". He concluded that "the human rights infringements were not so systemic or general as to compel the conclusion that as a matter of law Gambia could not properly be designated". However, the extent of that evidence could weigh against certification in the individual case.

3.8C In R (JB (Jamaica)) v SSHD [2013] EWCA Civ 666, the Court of Appeal found the designation of Jamaica to be unlawful because of the accepted evidence of serious violence targeted at the LGBT community and of a general lack of state protection for that community. The majority of the Court of Appeal found that the Home Office was wrong to argue that because the LGBT community was only a minority, comprising on the evidence about 5-10% of the population, the risk could not be described as "general" or "significant". Sir Malcolm Pill concluded that "a state in which there is a serious risk of persecution for an entire section of the community, defined by sexual orientation and substantial in numbers, is not a state where in general there is no serious risk of persecution". This decision was upheld by the Supreme Court: R (Brown) v SSHD [2015] UKSC 8. At the time of writing, however, Jamaica remains on the list of designated states in s94(4), although it is not listed as a designated state in the current Home Office guidance on certification.

3.9 In ZT (Kosovo) v SSHD [2009] UKHL 6, Lord Phillips approved the judgment of the Court of Appeal in ZL and VL v SSHD [2003] EWCA Civ 25 that the threshold test for determining whether a claim is clearly unfounded should be applied in the same way whether or not the country is designated. Lord Phillips said that "The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof" (para 22). The practical effect of designation is nevertheless very significant, as the Home Office certifies far more claims from designated countries as a matter of policy, and those who are from designated states are more likely to have their asylum claims processed while in detention.

3.9A While the consequences of a s.94 certificate are dire, the test for certification is correspondingly "extreme" (see Lord Philips in ZT [2009] UKHL 6, para 20). In SSHD v R (Razgar) [2003] EWCA Civ 840 [2003] INLR 543, the Court of Appeal emphasised the 'very high threshold' that had to be met before a claim could be characterised as 'clearly unfounded', explaining that:

The Secretary of State cannot lawfully issue such a certificate unless the claim is bound to fail... It is not sufficient that he considers that the claim is likely to fail on appeal, or even that it is very likely to fail. Moreover, as the House of Lords explained in Yogathas, the court will subject the decision of the Secretary of State to 'the most anxious scrutiny'. [emphasis added]

3.9B The House of Lords' dismissed the Home Office's appeal against that judgment in R v SSHD, ex parte Razgar [2004] 2 AC 368 [2004] UKHL 27, again emphasising the high threshold. Lord Carswell stated that while there were strong indicators in favour of the Home Office's case, "I could not be fully satisfied, however, that the case is so clear in favour of upholding the decision to remove the respondent that no reasonable adjudicator could hold otherwise". In ZT [2009] UKHL 6, Lord Phillips said that "If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded."

3.9C The House of Lords also established in ZT [2009] UKHL 6 that where a claim has been certified as clearly unfounded so that no appeal can be brought before removal, the fresh claim test is applied to further evidence and submissions advanced following the certificate. However, it also established that the test is the same as the test for certification so that a claimant who has not yet had any opportunity to put his case to a judge is not prejudiced by the adoption of this approach rather than simply considering whether the certificate should be withdrawn in light of the further evidence.

3.9D The Court of Appeal also confirmed in R (YH) v SSHD [2010] EWCA Civ 116 that the burden of proof gives rise to no practical difference between the two tests. The burden is on the Home Office to establish that the claim is 'clearly unfounded' before it can lawfully certify it. But whereas the burden is on the claimant to produce something new to trigger the para 353 consideration, once she does so, the burden is again on the Home Office to satisfy itself that the new material fails the fresh claim test, and anxious scrutiny requires that "the benefit of any realistic doubt will be given to the claimant".

3.9E The instruction on certification, "Certification of protection and human rights claims under section 94 of the Nationality Immigration and Asylum Act 2002 (clearly unfounded claims)", now states that submissions made following a clearly unfounded certificate should be considered under rule 353 and if the fresh claim test is met, the certificate should be withdrawn.

3.10 In ZT [2009] UKHL 6, the House of Lords also confirmed that on judicial review of a clearly unfounded certificate, the Court will determine for itself whether an appeal would be bound to fail. Lord Phillips cited his observation in ZL [2003] EWCA Civ 25 that:

the test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not...

3.11 In ZL [2003] EWCA Civ 25, Lord Phillips, giving the judgment of the Court of Appeal, also stated that given that the Court asked the same question as the Home Office when applying the threshold test and was in as good a position to answer it, then it could have regard to evidence that had not been the subject of any decision by the Home Office, so long as the evidence was available to the Home Office:

"We have... concluded that a [decision on whether a claim is clearly unfounded] is one which the court is as well placed as the Home Secretary to take, and we go on to review the evidence in that light..."

This means that the Court should be prepared to have regard to relevant evidence in determining this objective test whether or not it has been considered by the Home Office.

3.11A. It is important that the Home Office has given proper consideration to the test for certification, and not merely considered whether or not grant asylum. Whether a failure to give separate reasons for certification will lead to a certification decision being quashed may, however, depend on the reasons given for refusing the protection claim. If those reasons are sufficiently strong to show that the claim was bound to fail then not much more will be needed. However, as Beatson LJ explained in R (FR (Albania) & KL (Albania)) v SSHD [2016] EWCA Civ 605:

"99 There is nothing wrong in the certification decision relying implicitly, as these decisions do, on the reasons for refusing the application for asylum. But, given the style of decision letter used, as I have stated, it is important that those considering certification keep in mind and give separate consideration to the different requirements of the decision on the application for asylum and the decision on certification. […]

100 In the present context, because of the structure of the decision letters, the analysis used in rejecting the application for asylum together with the other material before the Secretary of State and the court is all that is available to the court considering certification. The court will be concerned with the substantive integrity of the analysis displayed in the decision letter when giving the reasons for rejecting the application for asylum. If that is consistent with there being more than one view of the claim, or states only that the claim is "undermined" (as opposed to being one which no tribunal properly directing itself as to the law and as to the facts on the evidence before it could accept), or as simply being the Secretary of State's view, a court exercising the intensive review that … is undertaken in certification cases may conclude that the Secretary of State's own analysis has not shown that the claim is bound to fail in the tribunal. …

3.12 Prior to its suspension on 2 July 2015, some cases were certified after being subjected to a 'fast track' procedure in which the claimant is detained. The Court of Appeal concluded in ZL [2003] EWCA Civ 25 that the fast track procedure was fair in the context of what the claimant must do to avoid certification:

We would emphasise once again that the object of the fast-track procedure is to give applicants the chance to demonstrate that they have, or may have, an arguable case. We consider that the procedure affords them a fair opportunity to do this.

3.12A As noted above, the 'detained fast track' procedure was suspended in July 2015. This followed judgment in a number of cases brought by Detention Action which found the process to be operating in a systemically unfair, and therefore, unlawful manner (Detention Action v Secretary of State for the Home Department [2014] EWHC 2245 (Admin), The Lord Chancellor v Detention Action [2015] EWHC 1689 (Admin)). The Government appealed but the Court of Appeal upheld the High Court's judgment (Lord Chancellor v Detention Action [2015] EWCA Civ 840 at [49]):

The object of the [Secretary of State for the Home Department] in placing asylum appeals in the fast track is the entirely laudable one of dealing with them quickly. This is not because she considers that they are all hopeless cases. Far from it. Although many of the appeals are dismissed, many succeed. They are placed in the fast track so that they can be handled quickly and efficiently. But the consequences for an asylum seeker of mistakes in the process are potentially disastrous. That is why section 22(4) of the [Tribunals, Courts and Enforcement Act 2007] recognises that justice and fairness should not be sacrificed on the altar of speed and efficiency. As I have explained, the FTR do not strike the correct balance between (i) speed and efficiency and (ii) fairness and justice. It is too heavily weighted in favour of the former and needs to be adjusted. Precisely how that is done is a matter for the TPC and Parliament.

3.12B No new fast track rules have been announced. That said, the principles in the ZL case have application to individuals who are detained pending a decision on their application under the Detained Asylum Casework ('DAC') process (the policy under which detained asylum claims are currently considered). A generic challenge to the fairness of the DAC process failed in the Administrative Court (permission to appeal was refused by the Court of Appeal): R (TH (Bangladesh) & Ors) v SSHD [2016] EWCA Civ 815).

3.13 In terms of the interaction between the fast track process, certification and evidence, the Court of Appeal in ZL noted that:

[I]n some cases medical evidence will be required to support a protection claim and... in such circumstances, it is likely to prove impossible to bring a suitably qualified medical expert onto the site in the time available. In such cases, and in analogous cases, we would expect it to be recognised that the fast-track procedure is not appropriate and the decision deferred.

3.14 It also stated that:

[I]n a case where the authenticity of documents remains in doubt and the issue of their authenticity is critical, we do not see how a claim can properly be declared clearly unfounded.

3.15 As to country expert evidence, the Court of Appeal accepted that it would not be possible for a claimant herself to obtain and adduce expert evidence in the time permitted by the fast track process. However, it was influenced by the fact that in those cases, representation from the Refugee Legal Centre ('RLC') and Immigration Advisory Service ('IAS') was available on site in the detention centre and these organisations collated expert evidence as an 'ongoing process' and were not simply driven by individual applications. With the demise of both these organisations in 2010 and 2011 respectively, and representation now provided in many cases by smaller firms of solicitors, the need for cases requiring expert evidence to be transferred out of any replacement fast-track process will be much greater.3.15A In R (MK (Pakistan)) v SSHD [2012] EWCA Civ 1145, the Court of Appeal quashed a decision to certify a claim as clearly unfounded where there was a need for specific inquiries as to whether in the individual circumstances of the appellant's case, adequate protection would be available to her, and whether she could internally relocate. The Home Office's case that she had failed to seek protection which would reasonably have been available to the appellant was one which "requires investigation and an opportunity to give oral evidence". As to internal relocation, Pill LJ held that:

The appellant could not demonstrate and could not be expected to demonstrate that people she feared would or would not be able to follow her to other parts of Pakistan. That is a matter for enquiry by the Secretary of State, if appropriate at a judicial hearing. The decision letter appears to rely on the inability of the appellant herself, an educated but hardly streetwise person, to know the manner in which the terrorists operations are conducted. That was essentially a matter for enquiry, and for the Secretary of State to rely on the inability of the appellant herself to provide such evidence does not justify a finding that the decision was clearly unfounded.

3.16 In view of the high threshold test for certification, it should be unnecessary at this stage to obtain expert evidence going to the plausibility of your client's account. It will not ordinarily be possible for the Home Office to say that the Tribunal would be bound to reach one credibility finding or another after hearing oral evidence: see EM (Eritrea) v SSHD [2014] UKSC 12. The guidance on Certification of protection and human rights claims under section 94 recognises that

Credibility should not be taken into account when considering whether to certify a claim unless the claim is so incredible that it is incapable of belief.

This means that where certification is being considered, credibility is only relevant if the caseworker is satisfied that no one could believe the individual's account. For example, if there is indisputable evidence which contradicts the claim or it is based on facts already considered and found not to be credible.

3.16A The Court of Appeal in ZL [2003] EWCA Civ 25 pointed out, in response to concerns about the time required to obtain expert evidence on country conditions, that:

The individual's own experience may raise a question as to whether, at least in the part of the country from which he has come, persecution is occurring... In such a case the applicant's claim will not be clearly unfounded and the claim should not be certified.

3.16B Home Office policy is that it will not issue a certificate where "an individual makes an asylum claim and a human rights claim and only one of these is clearly unfounded" (Certification of protection and human rights claims under section 94).

Tactics and procedure

3.17 If the claim has been certified, the immediate priority is to check whether removal directions have been issued, or the notice period in a notice of removal window has expired (see below: this will determine the degree of urgency.

3.18 You then have to analyse the refusal letter to determine whether the Home Office has demonstrated that a judge would be bound to dismiss the appeal. If its reasoning does not establish this test, you can then apply for public funding to challenge the certificate by judicial review. Where the claimant is in a "removal window", you may need to make an emergency application as she could be removed at any time without further notice.

3.19 Refusal letters tend to be longer than the norm where a s.94 certificate is issued. They are also far more likely to quote country evidence and caselaw (sometimes copiously). This is often in support of an argument that there is a 'sufficiency of protection' in the country of origin. The citation of caselaw may well be selective, raising serious issues of propriety in the context of a fast track procedure with such catastrophic potential consequences. One of your initial tasks in these circumstances will be to perform a search of relevant caselaw to determine whether it is as adverse and uniform as the Home Office claims.

3.20 The Home Office usually accepts that it cannot rely on its views on credibility in order to show that the appeal would be bound to fail (see para 3.16 above). Work through your client's account carefully to check whether the Home Office has failed to appreciate relevant elements. As indicated by the Court of Appeal, your client's experiences of ill-treatment may contradict the Home Office's claims that persons such as your client are at no real risk. It may have missed or downplayed facts which exacerbate future risk, e.g. the extent to which your client was targeted individually.

3.21 There may well be aspects of the Home Office's reasoning that can be addressed through further representations and evidence. Expert analysis of the refusal letter can be invaluable in order to deal with the Home Office's contentions on matters such as sufficiency of protection. You should ask your expert to comment on relevant aspects of any CPIN (see chapter 17) as well as the reasoning in the refusal letter. The benefit of expert opinion on Home Office country of origin publications is demonstrated by Atkinson v SSHD [2004] EWCA Civ 846. Note also the dicta in R (Sinnarasa) v SSHD [2005] EWHC 1126 (Admin) to the effect that it should not be assumed for the purposes of certification that an expert would be unable to deal with adverse points in cross-examination. See also chapter 17 regarding the role of the Independent Chief Inspector's Independent Advisory Group on Country Information (IAGCI). The Home Office was required to establish its predecessor panel (the APCI) by s.142 of the 2002 Act and the Secretary of State has confirmed to the APCI that:

'ministers gave clear assurances (during the passage of the 2002 Act and debates on affirmative orders made under that Act to add countries to the NSA list), that the APCI would be consulted on the country information being used by the Government before making an order to designate a country.'

3.21A Your client may also be able to add relevant evidence, particularly if the Home Office has given no prior notice of adverse points on which it intends to rely in the refusal letter.

3.22 The Home Office usually rejects any request to defer removal in order to allow for further evidence in response to the refusal letter: such evidence can be submitted after you have lodged judicial review proceedings (thereby protecting your client from expulsion in the meantime).

3.23 If the Home Office appears to have done enough to justify its certificate on the basis of the evidence already before it, you must consider whether there is further evidence (e.g. expert evidence) that could be obtained to show that the appeal is arguable. If so, you should contend strongly to the Home Office that fairness demands that you have a reasonable opportunity to submit evidence in response to the refusal letter. If the Home Office refuses a reasonable request to permit you to obtain specific relevant evidence, this refusal may itself give grounds for judicial review. As indicated above, the Certification Guidance accepts in the light of the decision in ZT (Kosovo) v SSHD [2009] UKHL 6 that it must consider any representations submitted following certification and prior to removal as further submissions and (save where a fresh immigration decision is anyway required) apply paragraph 353 of the Immigration Rules. In such circumstances, paragraph 353A normally prohibits removal until the further submissions have been considered.

3.24 The EIG (Enforcement Instructions and Guidance), Chapter 60 (Judicial Review and Injunctions) states that:

Cases certified under … s.94, s.94B or s.96 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) … as well as third country cases do not attract a statutory in-country right of appeal. When you give notice of removal to an individual in these cases, you must satisfy yourself that they have the opportunity to access the courts before their departure is enforced. If notice of removal is given at the same time as the NSA or third country decisions this is likely to be their first opportunity for legal redress. A minimum of five working days notice should therefore be given between giving notice of removal and the removal itself. (para 2.4.3)

This longer period of five working days' notice will not be given for removal directions where the NSA decision has already been judicially reviewed, or where removal directions have previously been set with five working days' notice and failed for other reasons. In those cases, 72 hours' notice will normally be given (see section 3.1.3 of Chapter 60 EIG).

3.24A The EIG (Enforcement Instructions and Guidance), Chapter 60 sets out the forms that notice of removal may take:

Notice of removal may be given in three different forms:

(i) Notice of a removal window. The person is given notice of a period, known as the removal window, during which they may be removed;

(ii) Notice of removal directions. The person is given notice of removal directions and thus knows the exact date of departure; or

(iii) Limited notice of removal. A more restricted version of the removal window form of notification.

3.25 Given the removal of devolved powers for judicial review applications since the introduction of LASPO, it is necessary to apply to the LAA directly using CCMS. An emergency application can be made where a decision is needed within 48 hours, though there are often delays and this may need to be vigorously chased. The LAA operates an out of hours service for evening (5-8pm) and weekend (10am-2pm) applications where funding is needed to apply to the duty judge (asylum-out-of-hours@legalaid.gsi.gov.uk). If emergency funding is refused, an urgent internal review can be requested. If the refusal is maintained on review, a full application will have to be made and if the refusal is maintained, the LAA can arrange for an Independent Funding Adjudicator ('IFA') to hear the appeal within 24 hours.

3.26 Counsel can not normally be instructed through Legal Help to provide an advice on the merits, but may be willing to provide a short advice to support a funding application. You should be proactive in your application to the LAA in order to address its concerns. If public funding is refused, it is essential to make written submissions addressing the LAA's reasons for refusing public funding. If funding is refused, the IFA may be the only tribunal to have considered the merits of your client's asylum/human rights case before she is expelled.

3.27 The Home Office will not defer removal based on a notification of intention to instigate judicial review proceedings, although note that Chapter 60 of the EIG emphasises the importance of ensuring "that the person concerned has had the opportunity to lodge a claim with the courts" in NSA cases given the lack of an in-country appeal right. Once a claim form is lodged with detailed grounds and in compliance with part 5 of the Senior President's Practice Directions on Immigration Judicial Review (for cases proceeding in the Upper Tribunal; part 18 of PD54 for cases which are issued in the Administrative Court because they include a challenge to detention), Home Office policy is that in the case of a first judicial review challenge to a certification decision, removal directions will normally be deferred on receipt of the sealed claim form and detailed grounds.. If you are contemplating a second judicial review challenge, or in the case of other immigration judicial reviews, you should consider the guidance in chapter 60 carefully in order to decide whether it will be necessary to apply for an injunction in order to prevent your client's removal.

(but note the exceptions in the policy, the most significant of which is where removal is by charter flight and special arrangements have been notified in accordance with para 6.1 of Chapter 60 EIG, in which case an injunction needs to be obtained).

3.27A Once the judicial review is lodged and the sealed claim form and grounds provided to the Home Office, you must again be proactive in ensuring that removal directions are cancelled. Do not rest until you have specific (normally written) confirmation of this. Home Office procedures are far from infallible and it has been known to remove claimants by mistake after a judicial review has been lodged. If this happens, you need to contact the Treasury Solicitor urgently before the flight lands in the country of origin. The Treasury Solicitor ought to arrange for your client to be brought straight back. If not, an emergency application to the duty judge will be required.

3.28 The Home Office escapes stringent time limits in this procedure. It regularly takes the full period permitted for lodging the Acknowledgment of Service and Summary Grounds. The effect of the 2014 Upper Tribunal decision Kumar (R (Kumar & Anor) v SSHD (acknowledgement of service; Tribunal arrangements) (IJR) [2014] UKUT 104) is that the Upper Tribunal acquiesces to Home Office failure to file an acknowledgement of service with summary grounds of defence within 3 weeks, as the rules require, and allows this to be filed within 6 weeks (double the period under the procedure rules) without the Home Office needing to make any formal application for extra time. Use this time to obtain and submit any further relevant evidence. In May 2018, the Upper Tribunal will hear a case to reconsider its policy of routine extensions of time.

3.29 The Acknowledgement of Service may well be accompanied by a new refusal letter countering the points made in your Claim Form and in any further evidence or representations you have submitted. This means that the judge may be invited to refuse permission on the basis of a new decision by the Home Office which you have not had any opportunity to consider. The Administrative Court 'Judicial Review Guide 2017' explains that:

"7.2.5. The judicial review procedure does not allow for the claimant to respond to the acknowledgment of service during the paper application process. The ACO will not delay consideration of permission on the basis that the claimant may wish to reply. Any replies that are received before a case is sent to a judge to consider permission will be put before the judge but it is a matter for the judge as to whether he/she is willing to consider the reply."

In practice, it is worth contacting the Administrative Court Office or the Upper Tribunal and providing a timescale, which should be as short as practical, within which you seek to respond to the Acknowledgement of Service and any associated fresh decision. This may delay your case being referred to a judge or will at least alert any judge that you are planning to respond so that they may defer their decision if they consider it would be useful to hear from you.

3.29A The Court of Appeal considered the Home Office practice of issuing supplementary decision letters in Caroopen & Myrie v The Secretary of State for the Home Department [2016] EWCA Civ 1307. The Court identified distinct types of supplementary decisions:

First, a supplementary letter may be sent in order to supply reasons, or fuller reasons, for the original decision in response to a criticism of the adequacy of the reasons given with that decision. The authorities express caution about permitting a decision-taker to cure defects in his original decision in this way. …We were referred in particular to the decision of Stanley Burnton J in Nash v Chelsea College of Art and Design [2001] EWHC (Admin) 538. …. In broad terms, … he recognised that even in a case where there was no explicit statutory duty to give reasons the courts should approach attempts to rely on subsequently-provided reasons with caution; and he said that that was particularly so in the case of reasons put forward after the commencement of proceedings and where important human rights are concerned. I would endorse that.

Secondly, a supplementary letter may be effective not by retrospectively curing the original decision but by prospectively filling the gap which would arise if it should be held to be invalid. There is clear authority in the Upper Tribunal that the fact that there has been a subsequent decision may be relevant to the relief granted: the reasoning is that, whereas the default position is that the decision-maker will be required to re-take an invalid decision, that may be pointless where a fresh decision has since been taken which the court or tribunal is satisfied is lawful. I will refer to cases of this kind as "fresh decision" cases. A full and clear exposition of the reasoning in a fresh decision case can be found in the judgment of the UT in Kerr v Secretary of State for the Home Department [2014] UKUT 493 (IAC). …

Thirdly, further material – whether in the form of evidence or arguments – may have been brought to the Secretary of State's attention which requires her to reconsider her original decision, irrespective of whether it was valid when first made: the material may relate to subsequent developments or it may have been available from the start but simply not supplied. One example, though not the only one, is where in the papers lodged with the judicial review claim the claimant relies on material which was not deployed previously. In principle the point could be taken that material that was not before the decision-maker was inadmissible for the purpose of a challenge to that decision (though the position is not so straightforward when Convention rights are in play), but it is common experience that the Secretary of State often chooses to address the new material by way of a supplementary decision. Although this too as a matter of analysis constitutes a fresh decision, it is rendered necessary not because of any defect in the previous decision but as a result of the supply of further material. I will refer to cases of this kind as "new material" cases. How to handle such cases is the subject of some consideration in the well-known decision of this Court in R v Secretary of State for the Home Department, ex p Turgut [2000] EWCA Civ 22, [2001] 1 All ER 719.

I should, for clarity, identify a fourth type of case, namely where the Secretary of State explicitly acknowledges that her original decision was defective but simultaneously makes a fresh decision to the same effect. I would not describe the letter conveying the fresh decision in such a case as "supplementary", and so far as I know the Secretary of State does not do so either. However, the situation would not seem to be essentially different from that considered in Turgut: the original decision has been superseded, albeit for a different reason, and the tribunal has to decide whether to allow the validity of the fresh decision to be determined in the context of the existing proceedings.

3.29B The Court also held that the SSHD should indicate 'explicitly what her stance is about its relationship with the original decision', in other words she should state into which category her supplementary decision falls.

3.29C The Court further held on the questions of remedy and costs,

In my view, where in judicial review proceedings a court or tribunal (from now on I will say "tribunal" for short) holds that the decision originally challenged in those proceedings is unlawful, it is open to it to consider whether a fresh decision to the same effect, made subsequent to the commencement of proceedings, is valid, for the purpose of deciding whether to order that the original decision be re-taken. In short, I agree with the reasoning in Kerr. That accords with what I believe to be the long-standing practice of not only the Upper Tribunal but also the Administrative Court. …If the tribunal simply quashed the original decision and declined to reach any conclusion about the validity of the fresh decision, the claimant would (at least if he or she disputed the lawfulness of that decision, as they typically would) have to start proceedings all over again, with all the attendant cost, delay and waste of the tribunal's resources. It is obviously more efficient and sensible for the tribunal which has the case before it, and has acquired the necessary understanding of the facts, to dispose of all related issues so far as possible. Of course there may be cases where for some particular reason the lawfulness of the fresh decision cannot be fairly disposed of in the same proceedings as the challenge to the original decision, but I would expect such cases to be rare.

On this analysis, costs should be awarded to the claimant to a point shortly after the supplementary decision was issued.

3.29D Beatson LJ (in a separate judgment) addresses when it might be inappropriate for a court or tribunal to adjudicate on a supplementary letter. For example, where a decision letter is served very close to the hearing date or where legal aid does not immediately extend to cover consideration of the new decision (a legal aid certificate given to challenge the original decision may not cover work in connection with the supplementary letter),'the claimant may legitimately assert that it is difficult for him or her to deal with it and that there is a risk of unfairness if the court does so.'

3.30 If consideration on the papers does result in permission being refused, you will have to make a further application to the LAA to extend public funding for an oral renewal. The Home Office's Acknowledgement of Service and any further refusal letter together with the judge's reasons must be addressed in detail in the grounds accompanying the public funding application. If the judge has relied on new points taken by the Home Office to which you had no opportunity to respond, then this should be emphasised (together with how you intend to respond to them).

3.30A The Upper Tribunal in R (Ayache) v SSHD (paragraph 353 and s94B relationship) [2017] UKUT 00122 (IAC) held, in the context of a judicial review challenge to a s 94B certificate, that it was not prepared to consider evidence that was not before the SSHD on the date she took her decision (at [16]). It held that the appropriate remedy, where there was further evidence going to the lawfulness of a certificate under s 94B, would be to present the new material in the form of further submissions under paragraph 353 of the Immigration Rules (at [20]). The appeal to the Court of Appeal was conceded by the Home Office on other grounds.

Section 94B certificates

3.31 Section 94B applies to appeals against the refusal of a human rights claims (and not international protection). The provision when first introduced applied only to deportees but was extended by the Immigration Act 2016 to cover all persons who would otherwise have in-country appeals against human rights claims. The effect of s. 94B certification, as with s. 94, is that an appeal may only be brought or continued from outside the UK.

3.32 S. 94B(2) and (3) (as amended) provide:

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, refusing P entry to, removing P from or requiring P to leave the United Kingdom, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if refused entry to, removed from or required to leave the United Kingdom.

3.32A In R (Kiarie) v SSHD [2017] UKSC 42 the Supreme Court considered the s 94B certification powers in the context of deportation. It found an infringement of the appellants' rights under article 8 ECHR, the right to respect for private and family life, and quashed the certificates for deportation pending appeal. In essence, the Court highlighted the significant difficulties in mounting an effective appeal faced by appellants removed pending appeal and found that the Home Secretary failed to demonstrate that the process was fair as required by article 8. Although the Court did not issue a declaration of incompatibility in respect of s.94B, the Home Office has, since the judgment, not sought to enforce removals under the provision and has withdrawn its guidance on s.94B (the guidance entitled 'Certification under section 94B of the Nationality Immigration and Asylum Act 2002' was archived on 3 August 2017).

3.33 Although, as noted above, the Section 94B Certification guidance has been withdrawn, the withdrawn guidance may provide some indication of how the SSHD is likely to seek to use the power in practice if it is reissued. Section 94B does not apply to appeals against the refusal of a protection claim so if your client has sought asylum or humanitarian protection, her claim cannot be certified under s. 94B. While it does in principle apply to claims made under Articles 2 or 3 ECHR, the Home Office's certification guidance accepted that such a claim cannot be certified because, if the claim is not clearly unfounded, "it will be arguable that there is a real risk of serious irreversible harm" (Section 94B certification guidance for Non-European Economic Area deportation cases 'the Certification Guidance' – note: this was withdrawn on 3 August 2017).

3.34 The statutory test for s. 94B certification is set out in s. 94B(2): would removal of the appellant pending the determination of her appeal be unlawful under section 6 of the Human Rights Act 1998? The test of "real risk of serious irreversible harm" in s. 94B(3) is an example of when it would be unlawful to remove the appellant before her appeal has been considered, but it is not exhaustive of the circumstances in which removal would be unlawful. Once it is established that removal interferes with Article 8 rights, the question is whether that interference is proportionate to the legitimate aims of deportation, taking account of the temporary nature of the interference if the appeal is successful and the person is allowed to return. As the Supreme Court in R (Kiarie) v SSHD [2017] UKSC 42 made clear, you will need to consider:

• Whether the appellant's absence from the appeal hearing is likely to mean that the appeal cannot be fairly determined. Although Article 6 does not apply to deportation appeals, the Strasbourg court has interpreted Article 8 as include a right to effective participation in a decision making process which affects Article 8 rights. In R (Gudanaviciene & Others) v Lord Chancellor & DLAC [2014] EWCA Civ 1622, the Court of Appeal held that the procedural requirements of Article 8 in immigration cases were not materially different to that required by Article 6 in a case which involves civil rights and obligations. Article 8 requires that individuals be involved in the decision-making process, viewed as a whole, to a degree that is sufficient to provide them with the requisite protection of their interests (para 71). Lord Dyson MR said that "Deportation cases are of particular concern. It will often be the case that a decision to deport will engage an individual's article 8 rights. Where this occurs, the individual will usually be able to say that the issues at stake for him are of great importance", meaning that higher standards of fairness are required. You should therefore consider whether removal of your client from the UK before her appeal hearing will prevent her from participating effectively in the appeal hearing (see R (Kiarie) v SSHD [2017] UKSC 42 at [59]-[78]).

• To stand a worthwhile chance of winning her appeal, does your client need to give oral evidence? And if so, will your client be able to give evidence by video link or Skype and will evidence by video be sufficient in particular where credibility is in issue? Is there any dispute about the nature and extent of family or private life, or about the risk of reoffending, where her ability to give evidence and be cross-examined is likely to be important to the outcome of the appeal? Can family members attend the appeal? The Supreme Court has stressed the importance of oral evidence in deportation cases, but the same principles would apply wherever credibility is in issue – this is clear from the Court of Appeal in Ahsan v SSHD [2017] EWCA Civ 2009 which also found an out-of-country appeal to be an inadequate remedy as a matter of Article 8 ECHR and at common law in the context of challenges by individuals to findings that they had cheated whilst taking the English language test required under the Immigration Rules. The Supreme Court in Kiarie further held that evidence by video link or Skype as currently available in the Tribunal would not satisfy the requirements of effectiveness under Article 8 ECHR due in particular to the high costs associated with the procedures as well as 'formidable technical and logistical difficulties' (paras 67-73).

• Whether there is expert evidence, such as a medico-legal report, country evidence, or a report from an independent social work, that is necessary for your client's case but which your client will face significant difficulties in obtaining from outside of the UK. As to this, the Supreme Court noted in Kiarie, that 'an appellant deported in advance of the appeal will probably face insurmountable difficulties in obtaining the supporting professional evidence which, so this court is told, can prove crucial in achieving its success.' (para 74)

• Whether there are parallel family proceedings which would be prejudiced by the removal of the appellant in the interim. The Home Office's Certification Guidance said that certification will be appropriate if there is no evidence that a family case cannot be pursued from abroad; it should follow that if there is evidence that the case cannot be (meaningfully) pursued from abroad, certification will be inappropriate.

• Whether the foreseeable length of the proceedings means that the appellant will be separated from a child or partner for a disproportionate length of time, particularly where that separation is likely to have an adverse impact on the welfare of a child. There are currently long delays in listing deportation appeals in some hearing centres and account needs to be taken of the possibility of onward appeals. This will require a fact sensitive assessment of the proportionality of a temporary separation in each case.

3.34A Since Kiarie, the courts have had to deal with questions of the Supreme Court judgment's application to situations where removals and hearings had taken place prior to the judgment being handed down. The issues in Nixon v SSHD [2018] EWCA Civ 3 were whether to grant permission to appeal against the Administrative Court's refusal to grant permission to judicially review the certification decisions under s.94B of two Jamaican nationals (Paul Nixon and Omark Tracey) and whether to order the Secretary of State to return one of them (Mr Nixon) to the UK at her expense. Following the decisions refusing permission to challenge the s.94B certificates in their (respective) judicial reviews (which took place before the Supreme Court's judgment), Mr Nixon and Mr Tracey were removed pending their appeal hearings. In Mr Nixon's case, Hickinbottom LJ (sitting as a single judge) stayed the question of permission to appeal behind the ultimate outcome of the out-of-country appeal in the Tribunal (which was due to be heard in March 2018) and declined to grant a mandatory order returning Mr Nixon to the UK (at [87]-[89]). In so finding, he held that as a result of Kiarie, the s.94 certificates issued in the two cases were arguably unlawful (for the purposes of determining the application for interim relief) (at [78]), but added that in Mr Nixon's case 'there is reason for some confidence that the First-tier Tribunal will be in a position to conduct an effective appeal' (at [87]). In so finding, he relied in particular on the lack of evidence of contact, including since removal, between Mr Nixon and his wife and son in the UK that would reduce the value of an independent social worker's report (at [83]); the absence of any evidence indicating that he is constrained from instructing his legal team (at [84]); and SSHD's evidence that appropriate video-link facilities are available to enable Mr Nixon to give evidence from Jamaica (at [86]). It is noteworthy, that the latter reliance on the ability of the Appellants to have a hearing via video link from abroad is out of kilter with the Supreme Court's judgment in Kiarie. Although Hickinbottom LJ refers to 'a compelling case for there being some optimism and confidence that the steps that the Secretary of State is taking [in respect of video-link facilities] will be sufficient to render the appeal effective' (at [86]), in the absence of evidence in practice, this should not be relied on as to the effectiveness of videolink facilities in the Tribunal. In any event, Hickinbottom LJ's comments in respect of procedural effectiveness under Article 8 are made in the context of the exercise of discretion over a mandatory order for return of a deportee. Kiarie remains the binding authority on the question of effectiveness and should be the reference point.

3.34B It is also noteworthy that (as noted in Nixon at [19]), in Spring 2018 the First-tier is set to hear a number of out-of-county appeals from several countries, including Jamaica. Although these are not formally test cases, Hickinbottom LJ noted that 'it is hoped that these will test the effectiveness of appeals conducted from abroad' including the availability in practice of video facilities and the provision of facilities free of charge to enable an appellant both to provide instructions to his representative and give evidence in the appeal. It remains to be seen whether the out-of-country video link process will in practice permit the effective participation of an out-of-country appellant and it is likely that the question will need to be litigated further following the hearings in the First-tier.

3.34C In respect of the discretion over whether to grant a mandatory order, in Nixon Hickinbottom LJ applied the case of R (YZ (China)) v SSHD [2012] EWCA Civ 1022 to state the following in respect of s.94B certificates (at [122]:

Where an individual is deported on the basis of an unlawful certificate, he does not have a right to return to conduct the in-country appeal to which statute entitled him. The court has a discretion as to whether to make a mandatory order against the Secretary of State to take steps to return him to the UK so that he can (amongst other things) conduct his appeal in-country. If the court does not order his return (e.g. because it considers that an out-of-country appeal will effectively protect his article 8 rights), then that individual, despite being deprived of the right to an in-country appeal by virtue of an unlawful certification by the Secretary of State, is left to pursue any appeal out-of-country that he wishes to pursue. Of course, where such an appeal is adequate and effective to protect his human rights, he may suffer inconvenience, but suffers no injustice.

In application to Mr Nixon's case, he concluded: 'I do not consider that justice or fairness demands a mandatory order requiring the Secretary of State to take steps to return Mr Nixon at this stage. Such an order, in my judgment, would be neither appropriate nor proportionate' [83]). Mr Tracey did not seek a mandatory order for return but simply permission to appeal the judicial decision refusing the challenge to the certification decision in his case because the judge had proceeded on an incorrect basis (that is, without consideration of the approach mandated by the Supreme Court in Kiarie). Hickenbottom LJ, however, refused permission on the basis of a complete absence of evidence (both before him and the lower courts) of any particular detriment Mr Tracey would suffer in an out-of-country appeal, which in any event was hypothetical as no notice of appeal had been lodged (at [124]-[127]).

3.34D In Nixon, Hickenbottom LJ also summarised, obiter, a number of principles relevant to cases, such as those before him, where removal had taken place on a mistaken basis (i.e. prior to the Supreme Court's judgment in Kiarie) (at [75]). He notes that 'when assessing whether it is just and appropriate to make a mandatory order for return of a deportee, the fact that that person has been unlawfully deprived of an in-country appeal to which he is entitled under statute is the starting point and a factor telling strongly in favour of ordering his return' ([75(iii)]). He then gives three considerations relevant to the exercise of discretion over making a mandatory order for return. First, whether the deportation order was 'bad on its face', that is whether other than the challenge on Kiarie grounds, the removal was otherwise lawful ([75(iv)]). Secondly, whether a deportee could effectively pursue his appeal from abroad ([75(v)]); and thirdly, in addition to procedural matters, whether exclusion from the UK, separating the deportee from family members may constitute a substantive breach of Article 8 or result in his deportation claim being undermined on a continuing basis (([75(vi)]). It is important to note that any summary should not be substituted for a close reading of the Supreme Court's judgment in Kiarie.

3.34E Further, in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC) the Upper Tribunal considered the application of Kiarie to the situation where the appeal hearing itself (as well as the removal) was heard prior to the handing down of the Supreme Court's judgment. The appellant in AJ had been removed under s.94B prior to the hearing of his appeal. The appeal then proceeded with AJ remaining abroad. The Upper Tribunal found that the failure of the First-tier to consider the question of whether it was necessary for the Appellant to give oral evidence was an error of law. The Tribunal then gave guidance as to how appeals where the Appellant had been removed pending the hearing should be managed. It set out a step-by-step approach, by which the First-tier should ask itself the following questions namely:

1. Has the appellant's removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers?

2. If not, is the appellant's absence from the United Kingdom likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?

3. If not, is it necessary to hear live evidence from the appellant?

4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?

3.34F The Tribunal in AJ notes that questions 1 and 2 above should not be answered in the negative lightly and, even where it is legitimate to do so, 'the need for live evidence from the appellant is likely to be present'. The Tribunal suggests '[a] possible exception might be where the respondent's case is that, even taking a foreign offender appellant's case at its highest, as regards family relationships, remorse and risk of re-offending, the public interest is still such as to make deportation a proportionate interference with the Article 8 rights of all concerned. The Tribunal then concluded:

69. Both in the present case and in any other appeal where the section 94B certificate has not been quashed, if the First-tier Tribunal, as a result of adopting the step-by-step approach, concludes that the appeal cannot lawfully be determined unless the appellant is in the United Kingdom, the Tribunal should give a direction to that effect and adjourn the proceedings, to enable the respondent to secure the appellant's return.

3.34G The Tribunal's step-by-step approach is of course intended to be applied in light of all the guidance in Kiarie. Despite SSHD's claims (as recorded in Nixon), there is no current evidence or judicial confirmation that video-link technology has improved such as to render an appeal effective for the purposes of Article 8. However, it is also important in arguing that an out-of-country appeal will not be effective, that case-specific reasons are clearly set out.

3.35 As with s. 94 certification under the 2014 Act, a s. 94B certificate can be applied even after the appeal has been lodged and will then prevent the appeal from being continued while the appellant remains in the United Kingdom. The Certification Guidance advised caseworkers to consider certifying an appeal during the appeal process, for example where an appeal which was brought in the First-tier Tribunal against the refusal of a protection claim and a human rights claim is proceeding in the Upper Tribunal solely on human rights grounds.

3.36 Home Office policy was that it would consider certification under s. 96 (see Chapter 5) and s. 94 (see above) of the 2002 Act first, before certification under s. 94B, because these are "stronger" powers of certification.

3.37 As with s. 94 certificates, the only way to challenge a s. 94B certificate is by way of judicial review and much of the guidance given above (paragraphs 3.17-3.30) will be equally relevant here. As these are 'non-suspensive appeals' cases, the policy in Chapter 60 to give five working days' notice of removal applies, and (unless one of the exceptions in part 6 of Chapter 60 applies) the Home Office should normally suspend any removal directions once a judicial review has been issued, without the need to obtain an injunction.

3.38 Note that a similar power to certify in EEA deportation cases has been introduced by Regulation 24AA of the Immigration (European Economic Area) Regulations 2006. EEA appeals are outside the scope of this text and these provisions are not discussed further.