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Out-of-country Appeals Ruled Unlawful

Content supreme court
30 August 2017

In the shadow of the Grenfell Tower tragedy and the terrorist attack in Finsbury Park, a significant judgment from the Supreme Court was promulgated, largely unnoticed.  And yet its repercussions are significant for foreign national ex-offenders facing deportation from this country.  

The judgment in R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent) & R (on the application of Byndloss) (Appellant) v Secretary of State for the Home Department (Respondent) [2017] UKSC 42 On appeal from [2015] EWCA Civ 1020 ruled that the government’s `deport first, appeal later’ regime, introduced through the Immigration Acts of 2014 and 2016 by Theresa May while Home Secretary, is unlawful.

We, along with other organisations, briefed against these provisions during the passage of both Bills, arguing that it could not be a fair process to mount an appeal from abroad against something so fundamental as deportation for individuals with a private and family life in this country – deportation effectively means permanent exile from home and family.  (A deportation order can only be revoked after a minimum of ten years and only then on the Home Office’s discretion).  Its effect is the destruction of a crucial aspect of childhood, by ending a child’s meaningful relationship with their parent. We provided evidence of the devastating impact on children of separation from their parents by immigration detention.  But the Bills were passed and the system enshrined in law.

We had also argued that, if the system were to go ahead, arrangements would have to be made to ensure that people were able to engage meaningfully with an appeal process from outside the UK, such as provision of equipment, secure hearing centres and so on so that they were not disadvantaged by the absence of their physical presence.  These concerns fell on deaf ears and it thus fell to lawyer colleagues to mount legal challenges to the system.  Those of us who work in this field of law are all indebted to J M Wilson Solicitors and Turpin Miller Solicitors for doing so.

BID decided to apply to intervene in this case because of the enormous implications it had for the rights of people who face permanent punishment through separation from their families and the UK without meaningful legal redress.  Our deportation project (focussing on providing legal advice and representation to people in detention with a private and family life in the UK who were facing deportation), although only in existence for two years at that stage, had challenged `certification’ (the act of denying an appellant an in-country right of appeal) in a number of cases and was even facing the prospect of representing someone who had already been deported in his deportation appeal.  We knew that we were uniquely placed to gather and provide evidence to the Court on the unfairness of the regime and its impact on clients and their families.

Brian, whose deportation appeal we won, can now live in the UK with his family.  Without BID’s representation he would have been deported, despite living here for 16 years and having four British children.  While he was held in prison under immigration powers post-sentence, one of his children suffered a brain tumour and was critically ill in hospital, during which time no official deemed this situation compelling enough to release Brian on compassionate grounds to visit his daughter.  By this time he was well into a period of 18 months of immigration detention in a prison.  We applied for bail for him a total of six times before he was released, even though he had an outstanding appeal and could not be removed from the UK.  Judge after immigration judge refused release, despite the life-threatening nature of his daughter’s illness.  Once he was finally released the family began, with difficulty, to pick up the threads of their fragmented family life.  Although his permission to remain in the country has been restored now that he has won his appeal, it will take time for the children to trust that their father will not be taken away from them, and for them to recover from the damaging effects of their separation from him.

Since the judgment, we have issued two factsheets with template letters (Challenging the Home Office decision to deport you before you can appeal - Certification under Regulation 94B and Challenging the Home Office decision to deport you before you can appeal - Certification under EEA Regulation 33) so that people can request a hearing from within the UK, as is now, and should always have been, their right.  We are hopeful that at least clients and potential clients will not continue to endure this outrageous disadvantage.  Our next move is to press for legal aid to be restored for all deportation appeals.

We can only hope that the hundreds of families facing the very real prospect of their family life being torn apart, can now at least face the future with a little more hope.

Categories: Commentary, Access to Justice, Home Office Country Returns
Bail for Immigration Detainees (BID) is a registered Charity No. 1077187. Registered in England as a Limited Company No. 03803669. Accredited by the Office of the Immigration Services Commissioner Ref. No. N200100147. We are a member of the Fundraising Regulator, committed to best practice in fundraising and follow the standards for fundraising as set out in the Code of Fundraising Practice.
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