In the cases of R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent) and R (on the application of Byndloss) (Appellant) v Secretary of State for the Home Department (Respondent) the Supreme Court unanimously allowed the appeals of Mr Kiarie and Mr Byndloss.
Mr Kiarie and Mr Byndloss had previously been issued by the Secretary of State with certificates under section 94B of the Nationality, Immigration and Asylum Act 2002. The effect of section 94B certification is that an appellant can bring an appeals against an immigration decision only after the appellant has voluntarily departed from, or been removed from, the UK.
Until 30 November 2016, section 94B provided that where a human rights claim had been made by a person liable to deportation, the Secretary of State may certify the claim if she considers that the removal of the person pending the outcome of their appeal would not be unlawful under section 6 of the Human Rights Act 1998 and that the person would not face a real risk of serious irreversible harm if removed to that country.
From 01 December 2016, section 94B has been amended by section 63 of the Immigration Act 2016 so as to extend the Home Secretary’s power to certify under the section. "Since then she has had power to certify any human rights claim irrespective of whether the claimant is liable to deportation. The extended power does not fall to be considered in these appeals but our decision today will surely impact on the extent of its lawful exercise." (per Lord Wilson at para 9). This commentary from Lord Wilson will be of particular comfort to many would-be appellants under Article 8 of the European Convention on Human Rights who may have faced removal from the UK before being able to have their human rights appeal heard by an independent Tribunal.
Amongst other factors, Lord Wilson's analysis of section 94B certification took in to account the great difficulties involved in preparation and presentation of an out-of-country appeal, both in respect of the appellants themselves giving live evidence, and also in respect of engagement of experts to give evidence such as parole officers or forensic psychologists. The cost and logistical hurdles involved in putting together a successful out-of-country appeal are significant. The Secretary of State has therefore certified human rights claims of foreign criminals under section 94B in the absence of a system compliant with the European Convention on Human Rights for the conduct of an appeal from abroad.
In the concluding paragraph of Lord Wilson's leading judgment, with which Lady Hale, Lord Hodge and Lord Toulson agreed (Lord Carnwath gave a concurring judgment) Lord Wilson finds that:
"78. It remains only to re-cast the reasoning expressed in this judgment within its proper context of a claim that deportation pursuant to the two certificates under section 94B would breach the procedural requirements of article 8. The appellants undoubtedly establish that the certificates represent a potential interference with their rights under article 8. Deportation pursuant to them would interfere with their rights to respect for their private or family lives established in the UK and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The burden then falls on the Home Secretary to establish that the interference is justified and, in particular, that it is proportionate: specifically, that deportation in advance of an appeal has a sufficiently important objective; that it is rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation strikes a fair balance between the rights of the appellants and the interests of the community: see R (Aguilar Quila) v Secretary of State for the Home Department  UKSC 45,  1 AC 621, para 45. The alleged objectives behind the power to certify a claim under section 94B have been set out in section F above. I will not prolong this judgment by addressing whether the power is rationally connected to them and as to whether nothing less intrusive could accomplish them. I therefore turn straight to address the fair balance required by article 8 and I conclude for the reasons given above that, while the appellants have in fact established that the requisite balance is unfair, the proper analysis is that the Home Secretary has failed to establish that it is fair." [Emphasis added.]
At para 77 Lord Wilson notes: "Between 28 July 2014 and 31 December 2016 the Home Secretary issued 1,175 certificates pursuant to section 94B in relation to foreign criminals, all, therefore, with arguable appeals. Of those 1,175 persons, the vast majority were no doubt duly deported in advance of their appeals. But by 31 December 2016 only 72 of them had filed notice of appeal with the tribunal from abroad. It may well be that on 13 February 2017 a few of those appeals remained undetermined. The fact remains, however, that, as of that date, not one of the 72 appeals had succeeded."
One must now wonder whether the many people proudly removed from the UK prior to appeal by the Secretary of State may now be able to pursue further legal challenges.