Inadmissibility and certification

3.0 Whilst the focus of this guide is on appeals against substantive refusals of international protection and human rights claims, this chapter contains a brief overview of the two main powers which have the effect of making your client liable to removal, either without any right of appeal, or with any appeal only taking place after removal. These are:

(i) inadmissibility decisions, which have the effect of precluding substantive consideration of an international protection claim within the UK;

(ii) certification decisions, which remove the right of appeal (in the case of clearly unfounded and safe third country certificates) or require any appeal to be made from outside of the UK (in the case of certificates under s94B of the 2002 Act).

In both cases, the only way to prevent your client being removed from the UK is by way of an urgent application for judicial review, normally accompanied by an application for an injunction staying her removal. Judicial review procedure is complex and beyond the scope of this Guide. What follows therefore is only a brief overview of the circumstances in which these decisions may be taken, and the immediate steps you should take to protect your client's position.

Inadmissibility

3.0A Since 1 January 2021, the Home Office has had the power – initially by way of the Immigration Rules and now in sections 80A-C of the 2002 Act (added by the 2022 Act) – to treat as inadmissible any asylum application where an applicant has a 'connection' to a safe third country as defined by section 80C. Your client will be deemed to have a "connection" with a safe third country if she meets any of five conditions in section 80C(1)-(5). These are, in summary, that she has been granted international protection in a safe third country and is not at risk of refoulement there (s80C(1)-(2)); she has claimed asylum in a the safe third country and the claim has either not yet been determined or has been refused (s80C(3)); she was previously present in and eligible to make a claim to the safe third country but has failed to claim when it would have been reasonable to expect her to do so (s80C(4)); or, finally, that in her particular circumstances, it would have been reasonable to expect her to have made her asylum claim to the safe third country (instead of making a claim in the UK) (s80C(5)). Section 80C(5), therefore, does not even require your client to have been physically present in the safe third country. The explanatory notes (at the House of Lords stage of the Bill) provided as an example 'where the person has close family members in a safe third country and there was nothing preventing them making a claim there.'

3.0B If the Home Office decides that your client's claim is inadmissible then it will not undertake substantive consideration of the claim but will instead try to remove her to a safe third country. The third country will not necessarily be the same as the one with which she has a "connection" for the purposes of s80C, or which she has even been to or has any other form of connection: section 80B(6). It is under this procedure that the Home Office has sought to send asylum applicants to the Republic of Rwanda with which it has agreed an 'asylum partnership' deal: see Memorandum of Understanding.

3.0C All that is required is for the Home Office to be satisfied that the country is a 'safe third country' as defined by section 80B(4) of the 2002 Act, that is a country where:

(a) the person's life and liberty are not threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion;

(b) the person will not be sent to another state;

(i) otherwise than in accordance with the Refugee Convention, or

(ii) in contravention of their rights under Article 3 of the Human Rights Convention (freedom from torture or inhuman or degrading treatment), and

(c) a person may apply to be recognised as a refugee and (if so recognised) receive protection in accordance with the Refugee Convention, in that State.

3.0D Although substantive consideration of the asylum claim is not required, the Home Office does need to certify the third country as 'safe', the effect of which is to disapply the statutory bar on removal of asylum seekers without consideration of their claims. If your client has raised a human rights claim against removal to the third country, the Home Office will need to consider that claim substantively and to certify it as clearly unfounded in order to remove the right of appeal on human rights grounds. Whether your client has a "connection" to a safe third country, and whether the country to which the Home Office plans to send her is 'safe', or any human rights claim clearly unfounded, will be challengeable by way of judicial review which, as the case law on certification – as well as the recent Rwanda litigation - has shown, may be complex and often leads to lengthy litigation.

3.0D You will need to act quickly if your client is subject to inadmissibility procedures. A decision to treat her as inadmissible may be made very shortly – within a couple of weeks - after her arrival in the UK, and will normally be served at the same time as any third country certification, refusal and certification of any human rights claim, and directions for her removal to the third country. She may have as little as 5 working days from being served with the decision until the planned date of removal. This is a very tight timeframe for her to issue judicial review proceedings and seek an injunction to prevent her removal. If you are not experienced in urgent judicial review work you will need to immediately refer your client to an experienced public law solicitor.

3.0E Asylum claims by nationals of EU member States will also be inadmissible save for in 'exceptional circumstances': section 80A(1) & (4) of the 2022 Act. Section 80A(5) provides some non-exhaustive examples of situations which could be exceptional including where a state has derogated from the European Convention on Human Rights or the European Union has initiated the mechanism to suspend a member State for breach of EU values (at the time of writing such proceedings are ongoing in relation to Hungary and Poland). Notwithstanding Article 3 of the Refugee Convention, which requires States to apply its provisions without discrimination as to country of origin, the scope for challenging inadmissibility decisions in respect of EU nationals by way of judicial review is likely to be very limited in practice.

3.0F Where a person cannot be removed to a safe third country, even if a connection can be established, they will eventually be admitted into the UK asylum system and have their claim substantively determined. Current Home Office policy is that the inadmissibility process must not create a lengthy 'limbo' situation in which a person can neither advance their claim for protection in the UK or in a safe third country, but does not set any fixed time period within which a person should be admitted to the UK asylum procedure if they can't be removed. In the absence of enforceable returns or relocation agreements with safe third countries, the inadmissibility provisions have to date principally added to the asylum backlog.

3.0G The Illegal Migration Bill, introduced in the House of Commons on 7 March 2023, will – if enacted in or close to its current form – dramatically increase the use of inadmissibility by the Home Office such that all those entering the UK by irregular means will be permanently excluded from the asylum determination and appeals system. The Bill's intention is to remove all those excluded from the UK to a safe third country (or the country of origin in respect of EEA countries and Albania), with a very limited right of recourse to the Upper Tribunal against the decision to remove. If enacted as intended the current system of asylum status determination and appeals will be eviscerated.

Certification

3.1 Certification refers to a process whereby the Home Office decides either to require an appeal to be made out of country or to remove a right of appeal altogether. The most urgent point to check when you receive the refusal letter, therefore, is whether the claim has been certified. Certification may arise both in relation to removal to the country of origin (s94 or 94B of the 2002 Act) and also to removal to a safe country (Schedule 3 to the 2004 Act). Appeals might also be certified under s96 of the 2002 Act, which also has the effect that there is no right of appeal at all. Section 96 certification is considered in chapter 5.

3.2-3.3 […]

3.4 The only means of preventing the Home Office removing your client without an effective in-country appeal on the merits, whether to her country of origin or a third country, is to judicially review the certification. 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, where return to the country of origin is envisaged, the main form of certification available to the Secretary of State is a 'clearly unfounded' certificate under s.94 of the 2002 Act. Until NABA 2022, the right of appeal in clearly unfounded cases could only be exercised after removal. As the Court of Appeal noted in ZL and VL v SSHD [2003] EWCA Civ 25, this was 'scant consolation' when the appellant has already been removed to the country where she fears persecution and human rights abuses or, as may be the case in respect of removal to so-called 'safe' countries, refoulement to the country of origin. However, NABA 2022 removed even the out of country appeal for decisions certified under s.94 of the 2002 Act where the asylum claim was made on or after 28 June 2022. Separate provisions exist in Schedule 3 to the 2004 Act for the certification of claims where removal is envisaged to a safe third country: see Inadmissibility above. The Home Office also has a powers to certify human rights appeals under s. 94B of the 2002 Act, 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. Section 94B certificates have the effect that any right of appeal can only be exercised from outside the UK but in practice have not been used since the Supreme Court's judgment in R (Kiarie) v SSHD [2017] UKSC 42. On 3 August 2017, the guidance entitled 'Certification under section 94B of the Nationality Immigration and Asylum Act 2002' was withdrawn and remains available only as an archived document. 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. Whilst the developments in the use of remote video technology have led some to opine that were Kiarie heard today the same conclusion would not have been reached (for example, per Mostyn J in R (Arman & Anor) v SSHD [2021] EWHC 1217 (Admin)), the use of s.94B remains suspended by the Home Office.

Section 94 '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, Jamaica, Macedonia, Moldova; Bolivia, Brazil, Ecuador, South Africa, Ukraine; India; Mongolia, Bosnia-Herzegovina, Mauritius, Montenegro, Peru, Serbia, Kosovo and South Korea.

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 in 2006/7.

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. The Supreme Court has confirmed in Robinson (formerly JR (Jamaica) v SSHD [2019] UKSC 11 that a right of appeal does not arise in the absence of a decision by the SSHD to accept further submissions as a fresh claim in accordance with paragraph 353 (see also the Upper Tribunal judgment in R (on the application of Akber) v Secretary of State for the Home Department (paragraph 353; Tribunal's role) [2021] UKUT 00260 (IAC) which applies and summarises the caselaw from the higher courts).

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 to 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 and the determination of her asylum claim accelerated. 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 at para 3.12 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]) on the basis that the process was too heavily weighted in favour of speed and efficiency, to the detriment of fairness and justice. As the Supreme Court held in R (oao TN (Vietnam)) v Secretary of State for the Home Department [2021] UKSC 41, however, cases that were subjected to the unlawful fast track process are not automatic nullities or presumed to have been decided unfairly. Rather, it is necessary to show in individual cases that procedure had an adverse impact on the conduct of the hearing.

3.12B 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 process 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). The NABA 2022 provides for a new detained fast track appeals process, although this has not yet been introduced and at the time of writing the timescale for doing so is unclear.

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 detained accelerated asylum 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, and no new evidence has been produced to dispute that finding. Another way of putting this is that where the caseworker thinks the claim could be believed they must take the claim at its highest, accepting the account as being true for the purposes of deciding whether to certify. (p13)

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. Where removal directions are set in respect of your client, she will simultaneously be issued with an Immigration Factual Summary. The Judicial Reviews and Injunctions guidance says the following of its functions:

• it outlines to the person being removed all of the different actions which have been taken on their case which have led to the setting of removal directions

• should the person lodge an application for judicial review (JR), their legal representative, Operational Support and Certification Unit (OSCU), and the Administrative Court or Upper Tribunal rely on the information contained within the summary in order to make a quick and informed decision concerning the person's case for JR and whether it is appropriate to maintain or defer removal

• additionally, the European Court of Human Rights (ECtHR) relies on the information contained within the summary to assess the merits of an application to them to impose interim measures under rule 39 of the ECtHR's Rules of Court

• it enables the Home Office to demonstrate to the court all the steps that have been taken to address a claim to remain in the UK, and to demonstrate that removal is now the appropriate course of action

3.18 You should check the Immigration Factual Summary carefully and confirm its accuracy against your client's instructions. Any contested points should be raised straight away with the Home Office. 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. This may require an emergency application if removal directions are also in force (the policy of issuing 'removal windows', however, was ruled unlawful: R (FB) v SSHD [2020] EWCA Civ 1338 following its suspension following an injunction granted by the High Court in March 2019). In s94 certification cases, the claimant should usually be given at least five working days' notice of removal directions.

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. 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. 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 apply paragraph 353 of the Immigration Rules (p25). In such circumstances, paragraph 353A normally prohibits removal until the further submissions have been considered.

3.24-3.24B […]

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 before a substantive application could be considered, though there are often delays and this may need to be vigorously chased. The LAA no longer operates an out of hours service. Instead it expects providers to do urgent work 'at risk' where this is necessary pending a decision on an emergency application. Since February 2019, the LAA accepts it has a discretion to backdate a certificate (to the date of application) where there is delay in reaching a decision and it is in the interests of justice for work to be done under the certificate before the date it is granted. If emergency funding is refused, an 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. Again, it has a power to backdate the eventual grant of funding in urgent cases.

3.26 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 Judicial Reviews and Injunctions guidance emphasises the importance of ensuring "that the person concerned has had the opportunity to lodge a claim with the courts" particularly in cases where there is no statutory right of appeal. 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; PD54A 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 Judicial Reviews and Injunctions guidance 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 Judicial Reviews and Injunctions guidance, p21, 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, even if you have obtained an injunction. 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 GLD urgently before the flight lands in the country of origin. The Home Office 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.

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. Whilst there is no formal process for respond to the Acknowledgement of Service, it is within the discretion of the judge to admit a 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. You will need to file an application notice with any Reply, seeking permission to rely on the arguments contained in it.

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). Note that the Court of Appeal has held that delay in obtaining legal aid is not a good reason for an extension of time for filing the renewal application (or a subsequent application for permission to appeal) (see R (Kigen) v SSHD [2015] EWCA Civ 1286). The LAA has power to backdate the amendment if there is a delay on its part to cover necessary work done in the intervening period.

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.

Certificates under schedule 3 to the 2004 Act

3.30B The Home Office may certify an international protection or human rights claim under Schedule 3 of the 2004 Act where it envisages returning a person to a safe third country. This is particularly relevant to decisions on admissibility (see paras 3.0A-D ). The Inadmissibility guidance addresses the interaction of the certification regime in schedule 3 to the 2004 Act and sections 80A-C of the 2002 Act (pp22-25).

3.30C Part 2 of Schedule 3 (paragraph 3(2)) states that where a person is to be removed to a country of which she is not a citizen and that country is an EU state, Iceland, Norway or Switzerland, it must be treated as a safe country. This certificate applies to any appeal made on the basis that removal to the state would breach the UK's obligations under the Refugee Convention or that removal would breach the Human Rights Act 1998 because of the possibility of refoulement from that state. Under para 5(4) of Schedule 3, a human rights claim on grounds other than a risk of refoulement from the state of proposed removal, such as on grounds of family or private life or risk of violation of Article 3) must be certified as clearly unfounded, unless it is not clearly unfounded. Parts 3 and 4 of Schedule 3 apply to other countries that have been specified in an order made by the SSHD and approved by a resolution of Parliament (but no such order has been made).

3.30D Part 5 of Schedule 3 (para 17) provides the power to certify decisions on a case by case basis where removal is envisaged to a country other than those listed in Part 2 where the person is not a citizen of the country of proposed removal. Safe is defined to mean that a person would not face a breach of her rights under the Refugee Convention in that State or refoulement. Prior to the announcement of the plan to remove asylum seekers to Rwanda in April 2022, the Home Office rarely, if ever, used its powers in Part 5 of Schedule 3to send asylum seekers to a third country which is not on the part 2 list of safe countries. If your client is found to be inadmissible and the Home Office wants to remove her to Rwanda it is likely that it will use the powers in part 5 of Schedule 3, given that Rwanda does not appear on the lists under parts 2, 3 and 4: see further, para 3.0B.

3.30E Many of the tactical considerations relevant to challenging s94 certificates, will apply to certifications under Schedule 3 to the 2004 Act. The issues are of course subtly different: the question is not only whether there is a risk of persecution in the third country, but whether it will offer her asylum if she needs it, including granting a status at least equivalent to refugee status, with all the rights guaranteed by the Refugee Convention. Moreover in the case of Rwanda (and any other country not on one of the statutory lists), there is no presumption of compliance with either the Refugee Convention or the Human Rights Convention. Any human rights claim against removal to the third country will have to be considered on its merits and refusal will attract a right of appeal, unless certified as clearly unfounded under s94.

Section 94B certificates

3.31 Section 94B applies to appeals against the refusal of a human rights claim (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 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 and has not been re-issued since).

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" ( withdrawn Section 94B certification guidance).

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 physical 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 including 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 in practice to give evidence by video link or via online video conferencing software and will remote evidence 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 given remotely via the technology available in the Tribunal at that time 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). Given the advances made in the use of online video conferencing software since the Covid-19 pandemic, it seems unlikely in many cases that the technology now available would be said not to meet the requirements of effectiveness. This was the (obiter) conclusion of Mostyn J in R (Arman & Anor) v SSHD [2021] EWHC 1217 (Admin) when he said that in his view were Kiarie decided today the same conclusion would not have been reached as 'there has been a transformation in the use of remote video technology so that, for almost all cases of this type, provided that suitable facilitative directions are given (see below), it cannot now be said that having to conduct an appeal out-of-country is, in procedural terms, unfair' (at [31]). Mostyn J suggested that in certain cases if the parties could not agree arrangements, fairness may depend on the Home Office facilitating the access of impecunious appellants to the relevant technology through, for example, the payment of data charges or the provision of a laptop. It will also be necessary to obtain approval, via the FCDO, from the state on whose territory remote evidence will be given: see further 15.24B-15.24BA. If the Home Office recommences issuing section 94B certificates, the impact of the developments in remote technology since 2020 will have to be considered in any challenge to individual certificates. It is likely, however, that the debate will turn on factors other than the quality of the technology in the vast majority of cases.

• Whether there is expert evidence, such as a medico-legal report, country evidence, or a report from an independent social worker, 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 withdrawn 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. This accords with the finding of the Court of Appeal in MS (Ivory Coast) [2007] EWCA Civ 133 (applied in the Tribunal in MH (pending family proceedings – discretionary leave) Morocco [2010] UKUT 439 (IAC) and CJ (family proceedings and deportation) South Africa [2022] UKUT 00336 (IAC)) that a decision to remove an applicant in the process of seeking a contact order may violate Article 8 ECHR on the basis that it prejudged the outcome of the contact proceedings and denied the applicant all possibility of meaningful involvement in the proceedings.

• Whether the foreseeable length of the proceedings, including any delays in listing deportation appeals in the relevant hearing centre and the possibility of onward appeals, 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. 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 its 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 and whether to order the Secretary of State to return one of them to the UK at her expense. In Mr Nixon's case, Hickinbottom LJ (sitting as a single judge) stayed the question of permission to appeal the Administrative Court proceedings behind the ultimate outcome of the out-of-country appeal in the Tribunal 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.94B 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 such as to reduce the value of an independent social worker's report (at [83]); the absence of any evidence indicating that he was constrained from instructing his legal team (at [84]); and SSHD's evidence that appropriate video-link facilities were available to enable him to give evidence from Jamaica (at [86]).

3.34B The First-tier Tribunal has since heard a number of out-of-county appeals from several countries, including Jamaica. Although these are not formally test cases, as Hickinbottom LJ noted in Nixon [2018] EWCA Civ 3, '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. CJ (international video-link hearing: data protection) Jamaica [2019] UKUT 00126 (IAC) was one such case. The First-tier held that evidence could be given effectively from Jamaica by video-link with the British High Commission in Kingston. This was upheld on appeal to the Upper Tribunal and to the Court of Appeal (Johnson v Secretary of State for the Home Department [2020] EWCA Civ 1032). In Juba (s. 94B: access to lawyers) [2021] UKUT 00095 (IAC), the Tribunal found that proceedings in which evidence was given by video link from the British High Commission in Nigeria were effective. It is also noteworthy that the European Court of Human Rights in Jallow v Norway (app no 36516/19) has recently considered the compatibility of remote hearings with Article 6 ECHR, finding no violation on the facts of that case on the basis that no specific problems arose surrounding comprehension or communication with lawyers. Each case, however, will turn on its own facts and it will be necessary to address the factors set out at para 3.34 above.

3.34C In respect of the discretion over whether to grant a mandatory order to return an individual who had been removed from the UK on the basis of an unlawful s94B certificate, in Nixon Hickinbottom LJ applied the case of R (YZ (China)) v SSHD [2012] EWCA Civ 1022 to state the following (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]). The other appellant in Nixon (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 observed 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 set out 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 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 noted 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.

The case was remitted to the First-tier Tribunal for a re-hearing (before a three person panel, including its President) in which the appellant gave live evidence via a video link from the British High Commission in Lagos. The First-tier concluded, dismissing the appeal, that there had been an effective hearing and that the appellant could not show that his Article 8 rights had been breached by deportation. This determination was appealed but the procedural findings were upheld by the Upper Tribunal: Juba (s. 94B: access to lawyers) [2021] UKUT 00095 (IAC). The appeal was allowed on a limited basis, however, and following a further hearing on that ground, allowed substantively under Article 8. At the point of writing, that determination is not yet reported and it is unclear whether the SSHD will appeal. In Juba (s. 94B: access to lawyers) [2021] UKUT 00095 (IAC), the Tribunal gave further guidance on the question of when an appellant's removal from the United Kingdom pursuant to s94B has deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers (the first question under the step-by-step approach set out in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC)). Whilst noting that the question is fact specific, the Tribunal noted that the question would be "whether the facts demonstrate the kind of inconvenience or difficulty that is inherent in the appellant being outside the United Kingdom; or whether there has been, or will be, an actual impediment in the taking of instructions and receiving of advice." The Tribunal then distinguished between a clear cut case where it is evident that an appellant's legal adviser is not in a position to mount an effective case and cases which are not clear cut. Whereas in the former case, "it would manifestly be wrong to undertake the hearing," in the latter, the Tribunal held that it would be a matter in each case to determine whether to address the question before the start of the hearing or after it had taken place, noting that matters arising in the hearing might clarify the question of whether a legal representation could take place effectively with the appellant outside of the UK.

3.34G The step-by-step approach articulated in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC) is of course intended to be applied in light of all the guidance in Kiarie. In CJ (international video-link hearing: data protection) Jamaica [2019] UKUT 00126 (IAC) and AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC) / Juba (s. 94B: access to lawyers) [2021] UKUT 00095 (IAC), the Tribunal found that the appellant giving evidence remotely permitted an effective hearing for the purposes of Article 8 ECHR. However, the question will be determined on a case by case basis. As such, it is crucially important in arguing that an out-of-country appeal will not be effective, that case-specific reasons are clearly set out. The advances in remote hearing technology and expertise gained by the Tribunal as a result of the Covid-19 pandemic is also likely to be relevant to the question of the effectiveness of out of country hearings. In Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), the Tribunal reviewed and amended its previous guidance on the giving of evidence from abroad in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC). Whilst re-iterating the requirement on parties seeking to have oral evidence given from abroad to make the necessary enquiries with the Taking of Evidence Unit of the Foreign, Commonwealth and Development Office (FCDO), in order to ascertain whether the government of the foreign State has any objection to the giving of evidence to the Tribunal from its territory, the Tribunal relaxed the requirements on the locations from which evidence abroad may be given: "the experience gained … in hearing oral evidence given … by remote means during the Covid-19 pandemic is such that there should no longer be a general requirement for such evidence to be given from another court or tribunal hearing centre." See further para 15.24B-15.24BA and Chapter 7A.

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 (currently withdrawn) 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 removal under 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. The policy in the Judicial reviews and injunctions guidance to give five working days' notice of removal applies, and (unless one of the exceptions in the guidance applies) the Home Office should normally suspend any removal directions once a judicial review has been issued, without the need to obtain an injunction.

3.37A However, the case law has determined that the First-tier Tribunal is the proper forum for determining whether in all the circumstances the appeal can lawfully be determined without the appellant being physically present in the United Kingdom: R (on the application of Watson) v (1) Secretary of State for the Home Department and (2) First-tier Tribunal (Extant appeal: s94B challenge: forum) [2018] UKUT 00165 (IAC); R (QR (Pakistan) v SSHD [2018] EWCA Civ 1413. In Watson, the Upper Tribunal gave the following guidance:

(1)…The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).

(2) If the First-tier Tribunal stays the appeal proceedings because it concludes that they cannot progress save in a manner which breaches the procedural rights safeguarded by Article 8, then it is anticipated the Secretary of State will promptly take the necessary action to rectify this position. If this does not happen, then an application for judicial review can be made to the Upper Tribunal to challenge the Secretary of State's decision and compel him to facilitate the appellant's return.

(3) If the First-tier Tribunal decides that the appeal process is Article 8 compliant, the Tribunal's substantive decision will be susceptible to challenge, on appeal to the Upper Tribunal, on the ground that the Tribunal was wrong so to conclude.3.37B The Court of Appeal in Yilmaz [2022] EWCA Civ 3000 again stressed the central role of the IAC in determining what fairness requires in the context of s94B certificates:

39…It must…be for the First-tier Tribunal and the Upper Tribunal, with their specialist expertise, to consider, and where appropriate give guidance on, what fairness requires in the context of evidence given by remote means in out-of-country appeals of different sorts. …The use of remote technology in legal proceedings, including hearing evidence by phone or computer link, became ubiquitous in all jurisdictions during the Covid pandemic. Many reservations about its use have been dispelled but there remains a central issue about fairness and the interests of justice that is best considered on a jurisdiction by jurisdiction basis with an eye to the different types of case and participation under consideration.

3.37C The Court of Appeal in R (QR (Pakistan) v SSHD [2018] EWCA Civ 1413 observed (at [53(xiv)]) that the First-tier Tribunal has a duty to ensure compliance with the procedural obligations of Article 8 ECHR and if at any time it considers that an appeal cannot be dealt with effectively out-of-country, it is under an obligation to do so (following which, the appeal would be adjourned to permit the SSHD to consider her position and for the applicant, if the SSHD refused to give effect to the First-tier's finding, to make a judicial review application). In R (Watson) (s94B process; s25 powers) v SSHD [2022] UKUT 00156 (IAC), the Upper Tribunal found that there was no breach of Article 8 in its substantive or procedural aspect in SSHD's decision to maintain the s94B certificate given that the applicant in that case at all times had access to a court or tribunal that was able to ensure compliance with Article 8.

3.37D If you have made an application to the First-tier for a direction under the process in AJ on behalf of your client, any refusal will be susceptible to judicial review in the Upper Tribunal (IAC) as it is a 'procedural , ancillary or preliminary decision' within the meaning of article 3(m) of the Appeals (Excluded Decisions) Order 2009 (and therefore cannot be appealed to the Upper Tribunal).

3.37E The Supreme Court's decision in Kiarie did not mean that all out-of-country appears are inherently unfair and it has always been necessary to argue procedural unfairness by reference to the particular circumstances of each case. As recognised by Mostyn J in R (Arman & Anor) v SSHD [2021] EWHC 1217 (Admin), there have been significant developments in the use of remote technology since March 2020. In the light of these improvements, arguments relating to the need to give evidence in person or be returned to the UK in order to obtain expert evidence need to be carefully thought through. Your client may have specific vulnerabilities that would make a remote hearing inappropriate: see further Chapter 7A. Further whilst many expert reports may be undertaken via video conferencing software, some medical professionals may properly refuse to do so, for example, in circumstances in which there is a risk that your client, if isolated outside of the UK and unable to access a support system, would be at risk of re-traumatisation.