In the recent case of R (on the application of QR (Pakistan)) v SSHD [2018] EWCA Civ 1413, it was held that despite the change in the law brought about by the Supreme Court decision in R (on the application of Kiarie and Byndloss) v SSHD [2017] UKSC 42, the court did not consider it appropriate or proportionate to order the return of a deported applicant to pursue his in-country right of appeal. His appeal against the refusal to proceed with the judicial review was allowed, but the court refused his application for interim relief which would have enabled him to return to the UK to pursue an in-country appeal.
In the landmark 2017 case of Kiarie & Byndloss it was held that the policy ‘deport first, appeal later’ might be unlawful if the relevant safeguards concerning proportionality and justification of the measure taken were not taken into account. In that case it was held that the public interest in removing a foreign criminal prior to his appeal being heard had to be balanced against the public interest of ensuring that the appeal remained effective for the purpose of protecting his rights under Art. 8 ECHR. There are a number of matters which have to be taken into account before it can be established whether an appeal remains effective if it is forced to be conducted from abroad. These include the availability of legal advice and the arrangements for communicating instructions, potential difficulties preventing the appellant from giving live evidence, and problems associated with obtaining expert or other professional evidence from abroad. The burden is on the Secretary of State for the Home Department (“SSHD”) to show that a fair balance has been struck between the rights of the person subject to deportation and the interests of the community.
The applicant in the present case, who was originally from Pakistan, entered the UK on a student visa in 2011. He became an overstayer and committed the serious criminal offence of blackmail for which he was given a 16-month prison sentence, before getting married to a British citizen of Pakistani origin in 2015. As a result of his conviction the SSHD served him with a deportation order under the automatic deportation provisions for foreign criminals, and immigration detention was substituted for his having served his prison sentence. The applicant then sought to fight his deportation on the basis of his right to family life under Art. 8 ECHR. However, the SSHD asserted that his removal would not violate his relevant human rights and certified its decision accordingly. After a number of unsuccessful attempts to seek permission for judicial review against the certification as well as the allegedly unlawful detention, he was deported to Pakistan in February 2017. His last unsuccessful attempt to seek permission to initiate a legal challenge was made by his solicitors when he had already been deported. He appealed against that refusal and also sought an order to be allowed back into the country while his appeal would be under consideration.
The Court of Appeal held that the latest change in the law following the case of Kiarie & Byndloss did indeed warrant permission to apply out of time for judicial review, and the applicant was granted permission to do so. The court then proceeded to making a decision on temporary admission of the applicant into the country while his case would be under consideration. The court held that the effectiveness of an out-of-country appeal must be determined by reference to the particular circumstances of the case. In the present case, there were indeed factors in favour of ordering the return of the applicant, but, in the opinion of the court, these were outweighed by the fact that he had committed a serious criminal offence and the lawfulness of the original deportation order issued on that basis. The court decided that unless justice and fairness demanded an order to urgently admit the applicant back into the UK, it would neither be appropriate nor proportionate to do so.
Although the decision in Kiarie & Byndloss did introduce a change in the law, the courts do not, however, readily agree to reverse deportation decisions even in light of a prospective appeal. Whether an appeal is to remain effective if it has to be pursued from abroad will depend heavily on the particular facts of the individual case. Even if there are grounds in favour of an applicant being allowed into the country to pursue an appeal, these can potentially be outweighed by the lawfulness of the original decision to deport, effected on other grounds, as well as factors associated with the imminent effectiveness of the appeal being conducted.
Gherson has extensive experience in dealing with immigration detention and deportation. If you need assistance or wish to receive more information, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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