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Home Secretary updates Home Affairs Committee on resumption of ‘deport first, appeal later’ policy


After suspension in 2017, Section 94B certification restarted on 5 June for five countries

Date of Publication:
27 June 2023

A recently published letter by the Home Secretary to the Home Affairs Committee provides more information the resumption of the 'deport first, appeal later' policy as announced by the Home Office earlier this month.

Home Office buildingImage credit: UK GovernmentThe policy was suspended in 2017 following a landmark judgment by the Supreme Court (see here for more).

On the 5th of June 2023, the Home Office restarted the use of certification under section 94B of the Nationality, Immigration and Asylum Act 2002, meaning a person can be removed from the UK before the appeal process is exhausted.

New guidance was issued by the Home Office on 5 June and was further updated last week. You can read it here. It explains: "This guidance has been updated following the Supreme Court judgment in Kiarie and Byndloss v the Secretary of State for the Home Department [2017] UKSC 42, which found that the opportunity to give oral evidence would normally be required for an out of country appeal certified under section 94B to be fair and effective. Steps have now been taken to allow people whose claims have been certified under section 94B to have access to a video link during their appeal. This guidance reflects the fact that where a video link is in place certification under section 94B can resume."

In a letter (available here) to the Home Affairs Committee sent on the 5th of June and made public on the 14th, the Home Secretary Suella Braverman stated:

"From today my intention is that any nationality will be eligible for consideration for certification under section 94B, subject to confirmation by the Home Office in each case of the position of the receiving country's authorities on video link evidence and the availability of a suitable overseas video facility. Initially consideration will be focussed on the appeals of Foreign National Offenders. We will not use section 94B certification in relation to nationals of countries where it is not possible to provide facilities for video link evidence in cases where live evidence is necessary.

"Since use of section 94B was suspended in 2017, my officials have successfully provided video facilities for over 30 legacy section 94B appeal hearings where the foreign national offender had already been deported. The Tribunal has found the video links we have used to be effective and we will be using the same processes.

"My department will take the necessary steps to enable certification under section 94B to be considered for nationals of every country where the establishment of the necessary facilities is reasonably achievable, and supporting the operational delivery of video links in section 94B appeals as required.

"We will be engaging with countries which have not yet clarified their stance on allowing video link evidence, or which require the signing of a new agreement with the UK in order to allow video link evidence to be provided to tribunal proceedings in the UK, prioritising engagement where it is likely to have most benefit for section 94B certified appeals."

According to the Home Office's press release on the 5th of June, the 'deport first, appeal later' policy initially restarted in five countries and will be expanded to a further 21 countries which have consented to live link evidence. The list of countries was not provided.