In short

Two foreign nationals facing deportation after serious criminal convictions challenged the Home Secretary's decision to certify their human rights claims under section 94B of the Nationality, Immigration and Asylum Act 2002, which requires any appeal against refusal of those claims to be brought from outside the United Kingdom while removal pending appeal proceeds.

The appeals reached the Court of Appeal after permission to apply for judicial review was refused below. The court treated the appeals as permission applications and, where permission was granted, determined the substantive judicial review claims itself on the expanded evidence before it.

The court clarified that section 94B certification requires the Secretary of State to consider whether removal pending appeal would breach Convention rights under section 6 of the Human Rights Act 1998, not merely whether there is a real risk of serious irreversible harm. It held that out-of-country deportation appeals can meet Article 8 procedural guarantees in principle and in these cases. Permission to apply for judicial review was granted because the original decisions contained legal errors, but the substantive claims were dismissed: Mr Kiarie's certification was upheld on the merits despite procedural flaws, and Mr Byndloss's certification was upheld on the basis of a lawful supplementary decision letter.

Decision

Permission to apply for judicial review granted. [103]
Substantive judicial review claim dismissed, on terms that reserved to the Court of Appeal. [103]

Issues

Can the Secretary of State lawfully certify a human rights claim under section 94B solely because removal pending appeal would not pose a real risk of serious irreversible harm, or must she also consider whether such removal would breach section 6 of the Human Rights Act 1998?
Section 94B(2) requires the Secretary of State to consider whether removal pending determination of an appeal would be unlawful under section 6 of the Human Rights Act 1998; satisfaction as to serious irreversible harm under subsection (3) is not a sufficient basis for certification on its own, and proportionality of any interim Article 8 interference must be addressed. [35]
Does requiring Mr Kiarie and Mr Byndloss to bring deportation appeals from outside the United Kingdom meet the procedural guarantees inherent in Article 8?
An out-of-country appeal against a deportation decision can meet the essential requirements of effectiveness and fairness under Article 8; on the evidence before the court, certification requiring each appellant to appeal from abroad was not a breach of his procedural Article 8 rights. [71]
Was the Secretary of State's section 94B certification of Mr Kiarie's human rights claim unlawful?
The October 2014 certification decision was procedurally unfair and legally misdirected in focusing on serious irreversible harm rather than the section 6 HRA question, but those errors were immaterial; removal pending appeal would have been a proportionate interim interference with Mr Kiarie's Article 8 private life and the certification would stand on a correct approach. [78]
Was the Secretary of State's maintenance of section 94B certification of Mr Byndloss's human rights claim unlawful?
Errors in the original October 2014 certification were superseded by a lawful supplementary decision of 3 September 2015 that correctly applied section 94B, adequately addressed procedural and substantive Article 8 rights including section 55 children's welfare considerations, and lawfully maintained certification on the evidence before the Secretary of State at that date. [101]

Reasoning

The Secretary of State's section 94B guidance was inaccurate and misleading in treating serious irreversible harm as the overarching test rather than the central statutory condition in section 94B(2). [36]
Specialist immigration judges can ensure out-of-country deportation appeals remain fair through written evidence, video links, witness summonses, and exceptional legal aid where complexity requires it. [65]
The public interest in removing foreign criminals carries substantial weight even when the only question is interim removal pending appeal, though less weight attaches than on the underlying deportation decision. [44]
Children's best interests are a primary consideration under section 55 and Article 8 but do not make certification under section 94B impossible wherever a deportee has any relationship with a child in the United Kingdom. [100]

Written by AI from the judgment on 27 August 2026. Each ¶ links to the paragraph it came from. Read those before relying on it.

▶Statutes Cited15

▶Case Law Cited18

▶Cited By16

Kiarie, R (On the Application Of) v The Secretary of State for the Home Department [2015] EWCA Civ 1020

[2015] EWCA Civ 1020

Case No C2/2015/1004

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

Upper Tribunal Judge Kopieczek

AND ON APPEAL FROM THE HIGH COURT

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

The Hon Mr Justice Males

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/10/2015

Before

LORD JUSTICE RICHARDS

LORD JUSTICE ELIAS

LORD JUSTICE McCOMBE

Between

The Queen (on the application of Kevin Kinyanjui Kiarie)Appellant

The Secretary of State for the Home DepartmentRespondent

The Queen (on the application of Courtney Aloysius Byndloss)Appellant

The Secretary of State for the Home DepartmentRespondent

Richard Drabble QC and Joseph Markus (instructed by Turpin Miller LLP) for Mr Kiarie

Manjit Singh Gill QC, Ramby de Mello, Tony Muman and Jessica Smeaton (instructed by J.M. Wilson Solicitors LLP) for Mr Byndloss

Lord Keen of Elie QC (Advocate General for Scotland), Lisa Giovannetti QC and Susan Chan (instructed by The Government Legal Department) for the Secretary of State

Hearing Hearing dates : 23-24 September 2015

Judgment

Lord Justice Richards :

[1]These two appeals, which were heard together, concern the interpretation and application of section 94B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), as inserted by the Immigration Act 2014 (“the 2014 Act”). Where a person liable to deportation has had a human rights claim refused by the Secretary of State but has a right of appeal against that decision, section 94B empowers the Secretary of State to certify the claim if she considers that removal of the person pending the outcome of such an appeal would not be unlawful under section 6 of the Human Rights Act 1998. The effect of certification is that any appeal must be brought from outside the United Kingdom.

[2]Both appellants are liable to deportation by reason of serious criminal offending. They each claimed that deportation would be in breach of their rights to private and/or family life under

article 8 of the European Convention on Human Rights

. In each case, the Secretary of State decided to make a deportation order, refusing the human rights claim and certifying the claim under section 94B. In the case of Mr Kiarie, the decision letter was dated 10 October 2014. In the case of Mr Byndloss, the original decision letter was dated 6 October 2014 but it was later superseded by a supplementary decision letter dated 3 September 2015, taking into account further evidence and representations.

[3]The appellants brought judicial review proceedings to challenge the section 94B certifications. Mr Kiarie’s claim was brought in the Upper Tribunal. Permission to apply for judicial review was refused by Upper Tribunal Judge Gill on the papers and by Upper Tribunal Judge Kopieczek on an oral renewal. Mr Byndloss’s claim was brought in the Administrative Court. Permission to apply for judicial review was refused by Hickinbottom J on the papers and by Males J on an oral renewal. In each case, permission to appeal to the Court of Appeal was granted at an oral hearing before the Master of the Rolls and Underhill LJ. The formal question on the appeal, therefore, is whether the court or tribunal below ought to have granted permission to apply for judicial review. It was common ground before us, however, that if we took the view that such permission ought to have been granted, the appropriate course would be for us to grant permission, reserve the substantive judicial claim to ourselves and proceed to determine it on the basis of the relevant evidence before the court and the submissions we have heard.

[4]There is no dispute that a decision to certify under section 94B is amenable to judicial review. Nor, in the event, is there any real dispute about the correct interpretation of section 94B, though that interpretation is not accurately reflected in the Secretary of State’s guidance to caseworkers. The main issues in each case are whether, in allowing the appellant’s removal pending determination of any appeal and requiring such an appeal to be brought from outside the United Kingdom, certification was in breach of(i) the procedural guarantees inherent in article 8 and/or

(ii) the appellant’s substantive rights under article 8. The first question focuses on the effectiveness and fairness of an out of country appeal in deportation cases. The second question focuses on the proportionality of any interference with the appellants’ private and/or family life pending determination of an appeal.

[5]The evidence before the court has grown substantially in the course of the proceedings and includes a substantial body of material filed at a very late stage. The court received all the material de bene esse but, as explained below, I am satisfied that some of it is irrelevant to the issues we have to decide.

The legislation

[6]Section 94B of the 2002 Act reads as follows:

“94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation (1) This section applies where a human rights claim has been made by a person (‘P’) who is liable to deportation under – (a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) … … (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, removal of P to the country or territory to which P is proposed to be removed, 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 removed to the country or territory to which P is proposed to be removed.”

That section was brought into force with effect from 28 July 2014 and was in force at the date of each of the decisions to which these proceedings relate. (a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) … …

[7]The effect of certification under section 94B is that any appeal against the decision on the human rights claim must be brought from outside the United Kingdom: i) In relation to the period from 20 October 2014, that effect was clear on the face of the version of section 92 substituted by a provision of the 2014 Act brought into force on that date: section 92(3) of the substituted version provides that “In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if – (a) the claim to which the appeal relates has been certified under … section 94B …”. ii) In relation to the period between 28 July and 20 October 2014, the period during which the original decision in each of the present cases was made, the same result was achieved by Article 4 of the Immigration Act 2014 (Commencement No.1, Transitory and Saving Provisions) Order 2014 and was thereafter maintained by Article 15 of the Immigration Act 2014 (Commencement No.3, Transitional and Savings Provisions) Order 2014. I am appalled by the complexity of that legislative jigsaw but there is no dispute that the result is as stated.

The guidance

[8]The Secretary of State has issued guidance to caseworkers on the application of section 94B. The version in force at the date of the original decision letters under challenge was Version 1, dated July 2014 and headed “Section 94B certification guidance for Non European Economic Area deportation cases”. I pick out three points from it: i) The guidance indicated, in paragraphs 3.2-3.3, that the Government was seeking initially to “test” the newly acquired power and that, for the initial test phase, certification should normally only be considered in circumstances where(i) the individual was aged 18 or over at the time of the deportation decision, and

(ii) the individual “does not have a parental relationship … with a dependent child or children”. ii) It was made clear in paragraphs 3.5-3.6 that the power under section 94B should be used only after it had been decided that other certification powers, including the power to certify a claim under section 94 as “clearly unfounded”, were not appropriate. What this means is that certification under section 94B would fall for consideration only in cases where the relevant human rights claim was accepted to be arguable and thus to engage a right of appeal. iii) It was also made clear in paragraph 3.5 that it would not be appropriate to use the power in section 94B to certify claims made on the basis of article 2 or article 3, since removal in circumstances where a claim under those articles was not clearly unfounded would necessarily carry with it a real risk of serious irreversible harm. iv) The general tenor of the guidance was that in every case the relevant question when deciding whether to certify was whether removal pending any appeal would create a real risk of serious irreversible harm. For example, paragraph 1.2 stated that section 94B “allows a human rights claim to be certified … where it is considered that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return”. Paragraph 3.9 stated that where all that remained in an appeals process was an article 8 claim “and there is not a real risk of serious irreversible harm, and the person is otherwise removable (e.g. a travel document is now available), it is likely that certification will be appropriate”. The guidance contained nothing to direct the decision-maker to consider whether, apart from real risk of serious irreversible harm, removal pending determination of an appeal might be unlawful under section 6 of the Human Rights Act, in particular by reason of a breach of the person’s rights under

article 8 of the Convention

[9]Version 2 of the guidance, dated 20 October 2014 stated that the test phase had ended on 17 October and no longer applied. It made the same points about the relationship between other powers of certification and the power under section 94B, and to the effect that the section 94B power should not be used to certify claims under article 2 or article 3. There was an even greater concentration than in version 1 on the test of real risk of serious irreversible harm. For example:

“3.2 The Government’s policy is that the deportation process should be as efficient and effective as possible. Case owners should therefore seek to apply section 94B certification in all applicable cases where doing so would not result in serious irreversible harm. … 3.5 … In order for certification not to be possible, there must be a real risk of harm that would be both serious and irreversible. 3.6 By way of example, in the following scenarios where a person is deported before their appeal is determined it is unlikely, in the absence of additional factors, that there would be a real risk of serious irreversible harm while an out-of-country appeal is pursued …. 3.7 Although the serious irreversible harm test sets a high threshold, there may be cases where that test is met. Such cases are likely to be rare, but case owners must consider every case on its individual merits to assess the likely effect of a non-suspensive right of appeal ….”

[10]Version 2 also contained paragraphs on the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children, a topic to which I will return when considering submissions made by Mr Gill QC on the facts of Mr Byndloss’s case.

[11]The evidence before the court includes at least one later version of the guidance (Version 4, dated 29 May 2015) but there was no suggestion in argument that later versions were materially different from Version 2.

[12]As will be explained below, the guidance contains an incomplete and misleading statement of the statutory test. On behalf of the Secretary of State, Lord Keen QC accepted that the guidance needs “clarification” and informed us of the intention to amend it following judgment in the present appeals. The problem goes beyond a need for clarification. The guidance is liable to mislead decision-makers into applying the wrong test. It is not, however, the direct subject of challenge in these proceedings. It is relevant only in so far as the erroneous approach in the guidance appears to have fed through into the original decisions under challenge, to which I now turn.

The decision in respect of Mr Kiarie

[13]Mr Kiarie is a Kenyan national who was born on 28 December 1993 and is therefore now 21 years old. He came to the United Kingdom at the age of 3 and was subsequently granted indefinite leave to remain. Between September 2013 and May 2014 he was convicted of a number of offences, including an offence of possession of a class A drug with intent to supply, for which he was sentenced in January 2014 to a 24 month suspended sentence. In April and May 2014 he was convicted of two further offences of possession of drugs, and on the second of those occasions the 24 month suspended sentence was implemented in full. In sentencing him, the judge noted not only the further offending, but also that he had failed to perform any hours of the unpaid work required under the suspended sentence.

[14]On 22 July 2014 he was notified of the Secretary of State’s intention to make a deportation order against him pursuant to section 32(5) of the UK Borders Act 2007 unless he fell within any of the exceptions in section 33 of that Act. He was sent a questionnaire which he completed, relying on article 8.

[15]He was not informed that consideration was being given to the exercise of the power under section 94B so as to allow his removal pending any appeal against deportation. As at the date of notification of the intention to make a deportation order, that was not surprising, since section 94B was not yet in force; but even after it had come into force, he was not told prior to the decision of 10 October 2014 (see below) that consideration was being given to its use in his case.

[16]By letter dated 10 October 2014, he was informed of the Secretary of State’s decision to make a deportation order against him for reasons given in the accompanying 9-page notice of decision. The notice referred to the public interest in favour of deportation for offending of the type and seriousness committed by Mr Kiarie. It considered his article 8 claim, which was based primarily upon the fact that he had spent the majority of his life in the United Kingdom and his parents, sister and younger brother were present here; but it concluded that the public interest in deporting him outweighed his right to private and family life.

[17]There was then a section on certification under section 94B, which included the following:

“45. Consideration has been given to whether your Article 8 claim should be certified under section 94B …. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. The Secretary of State does not consider that such a risk exists. As outlined above, you do not meet any of the exceptions to deportation and there are no very compelling circumstances present in your case. 46. It is acknowledged that your parents and siblings are in the United Kingdom. However, any relationships you may have with family members can be continued through modern means of communication upon your return to Kenya. There is nothing to suggest that you would be unable to obtain employment in Kenya. You are 20 years old and have no serious medical conditions. Furthermore, any skills/qualifications you have gained in the United Kingdom can only serve to assist you in finding employment in Kenya and therefore it is considered that there would be no communication barriers upon your return. 47. For all the above reasons, it is not accepted that you face a real risk of serious irreversible harm if removed to Kenya while you pursue your appeal against deportation, should you choose to exercise that right.. Therefore, it has been decided to certify your Article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom.”

The decisions in respect of Mr Byndloss

[18]Mr Byndloss is a Jamaican national born on 7 July 1980. He entered this country in June 2002 as a visitor and was subsequently granted indefinite leave to remain as the spouse of a British citizen. In May 2013 he was convicted of an offence of possession of class A drugs with intent to supply and was sentenced to 3 years’ imprisonment.

[19]On 21 June 2013 he was notified that the Secretary of State intended to make a deportation order against him pursuant to section 32(5) of the UK Borders Act 2007 unless he fell within any of the exceptions in section 33 of that Act. He was sent a questionnaire. By letter of 4 October 2013, his solicitor returned the questionnaire, partially completed, together with some additional material. The questionnaire gave brief details of Mr Byndloss’s spouse and the eight children he claimed to have had by her and two other partners. The additional material included short letters from him and from the mothers of some of the children, together with birth certificates of six of the children.

[20]By letter dated 6 October 2014, Mr Byndloss was informed of the Secretary of State’s decision to make a deportation order against him for reasons given in the accompanying 9-page notice of decision. The notice examined the available information concerning his life in the United Kingdom and his relationship with his spouse, his other partners and the children, and concluded that he did not meet the requirements of any of the exceptions to deportation on the basis of private or family life. It stated that deportation would not be in breach of article 8 because the public interest in deportation outweighed his right to private and family life.

[21]The notice continued with a section on certification under section 94B. It opened with a general description of the relevant power, and concluded:

“Consideration has been given to whether your Article 8 claim should be certified under section 94B …. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. The Secretary of State does not consider that such a risk exists. Therefore, it has been decided to certify your Article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom”

(emphasis in the original).

[22]In the context of the judicial review challenge to that decision, Mr Byndloss submitted further evidence and made further representations, including witness statements from himself and from the mothers of some of the children.

[23]That further material, together with the material originally provided, was taken into account in a 21-page supplementary decision letter dated 3 September 2015, some three weeks before the hearing of the appeal. The nature of the supplementary letter is apparent from its opening paragraphs:

“This letter is supplementary to the decision that section 32(5) of the UK Borders Act applies, issued on 6 October 2014. Material from the letter of 6 October 2014 has been consolidated into this letter so that the Secretary of State’s complete reasoning is contained in one document. However, a copy of the letter of 6 October 2014 is also enclosed for your reference.”

[24]The supplementary letter contains a detailed analysis of the material relevant to the substantive article 8 claim, again concluding that Mr Byndloss’s deportation would not be in breach of article 8 because the public interest in deportation outweighs his right to private and family life. The section ends: “Whilst it is accepted that you have established Article 8 rights in the UK, with which your deportation constitutes an interference, it is considered that the decision to deport you is a proportionate one, for the reasons set out above”.

[25]That is followed by a section on certification under section 94B, in terms that are materially different from, and far more detailed than, those of the original decision of 6 October 2014. After an introductory paragraph, the section deals with the opportunity to make representations prior to any decision whether to certify:

“From 20 October 2014, all foreign criminals who were notified of a decision to deport them from the UK were warned that in certain circumstances any appeal against an adverse decision could only be brought after they have left the UK. They were given the opportunity to make representations about why they should not be expected to appeal from abroad. The letter to you of 6 October 2014 was issued before that change in process and as such you have never been asked to submit such reasons in your case. It has always been open to you however, to make such submissions at any time in the 10 months since you were served with the decision to deport you. It is noted that you have been represented throughout this period. In your witness statement of 5 November 2014 at paragraphs 14 to 16, you set out the reasons why you should not be expected to appeal from abroad.”

Those reasons are then summarised and considered. They relate essentially to alleged difficulties in conducting an appeal from overseas. The letter concludes that the matters referred to would not constitute a breach of the procedural guarantees provided by article 8.

[26]The section continues:

“Consideration has been given, on the basis of all information currently available, to whether the decision to certify your Article 8 claim under section 94B of the 2002 Act should be maintained. The Secretary of State has considered whether your removal pending the outcome of any appeal you may bring would be unlawful under section 6 of the Human Rights Act 1998 and whether there would be a real risk of serious irreversible harm to you or members of your immediate family before any appeal you may bring is finally concluded. The Secretary of State does not consider that your removal pending the outcome of any appeal would be unlawful under section 6 of the Human Rights Act 1998 and considers that there is no real risk of serious irreversible harm in your case. It is considered that your removal pending your appeal would be proportionate in all the circumstances. As explained in the decision dated 6 October 2014 and in this letter, you lived in Jamaica until you were 21 years old and there is no evidence that you would be unable to reintegrate or pursue a private life there. You speak English which is an official language of Jamaica and as such you will be able to communicate with others on your return. You are 35 years old with no apparent health concerns and you were living an independent life prior to imprisonment. The evidence you have provided does not demonstrate that it would be unlawful under section 6 of the Human Rights Act 1998 in respect of the Article 8 or other rights of your wife, your former partners or any of your children if you were removed pending the final outcome of any appeal you may bring. As explained in the decision dated 6 October 2014, it is not accepted that any of your children are dependent on you for their ability to reside in the UK, as they are British citizens and remain in the care of their respective mothers. As you were in prison and immigration detention from 10 May 2013 to 15 April 2015, in the event of your deportation the status quo in respect of your children would be maintained and there would be no disruption either to the effectiveness of their care or their day-to-day lives: as far as your children are concerned, their daily lives would continue in the ways to which they are accustomed – i.e. in the care of their respective mothers who play the parenting role in each of the children’s daily lives. It is therefore concluded that you have made no meaningful, parental contribution to your children’s daily lives and as such, your removal will not be unlawful under section 6 of the Human Rights Act in respect of the article 8 or other rights of your wife, former partners or children. On this basis, it is not accepted that your removal would cause harm that would meet a minimum level of severity, or would have a permanent or long lasting detrimental impact upon any of your claimed family members. Full consideration has been given to the Secretary of State’s duty to promote and safeguard the welfare of children under s55 of the Borders, Citizenship and Immigration Act 2009. It is considered that your children’s best interests would be served by them remaining in the UK in the care of their respective mothers in order that they should continue to pursue the lives that they are well accustomed to. Given that you play no meaningful parental role in any of the children’s daily lives, it is not considered that the Secretary of State’s statutory duty under s55 would be breached by not affording you an in-country right of appeal against the decision to refuse your Article 8 claim. Therefore, the decision of 6 October 2014 to certify your Article 8 claim under section 94B is maintained and, as previously explained, any appeal you may bring can only be heard once you have left the UK”

[27]Since the date of the supplementary letter there has been what Lord Keen described as an avalanche of further evidence from Mr Byndloss, including various witness statements and an independent social worker’s report. Lord Keen indicated that the Secretary of State would consider that further material and decide in due course whether it should affect the maintenance of the section 94B certification; but the supplementary letter of 3 September 2015 stands as the most recent decision for the purposes of the present appeal.

The refusal of permission in the court/tribunal below

[28]I can deal very briefly with the reasons given at first instance for refusing permission to apply for judicial review. The arguments, and in Mr Byndloss’s case the decision itself, have been developed and refined in the course of the appeals.

[29]In the case of Mr Kiarie, Upper Tribunal

Judge Kopieczek’s judgment on the oral renewal, on 6 March 2015, concluded as follows:

“7. In the circumstances, I am satisfied that the respondent was unarguably entitled to certify the human rights claim under Section 94B of the 2002 Act, concluding that there would not be a risk of serious irreversible harm if removed, pending his appeal against the decision to make a deportation order. I am not satisfied that there is anything in the particular circumstances of his case which arguably reveals that he would not be able fully to participate in the appeal with the assistance of his family in the UK. The arguability of the underlying Article 8 claim does not affect the lawfulness of the respondent’s decision.”

[30]In the case of Mr Byndloss, Males J’s judgment on the oral renewal, on 19 December 2014, addressed a challenge to the lawfulness of section 94B itself, which has since fallen away. He rejected a submission that an out of country appeal would seriously disadvantage Mr Byndloss, referring to authorities which have upheld the principle that an out of country appeal does provide an adequate safeguard and an effective remedy. He considered that the claim was unarguable.

Amenability to judicial review

[31]As I have said, there is no dispute that a decision to certify under section 94B is amenable to judicial review. It should, however, be stressed that the issue on such a challenge is limited to the section 94B certification and does not extend to the deportation decision itself or to the related refusal of the person’s human rights claim. Section 94B will arise for consideration only in cases where there is a right of appeal against the refusal of the human rights claim (see, for example, the summary of the Secretary of State’s guidance at paragraph 8(ii) above). The section is concerned with the distinct question whether the person can lawfully be removed pending such an appeal. Moreover, there is obviously no right of appeal against the section 94B certification itself.

[32]It follows from all this that the line of cases to the effect that, where a right of appeal exists against a removal decision, judicial review will not lie unless special or exceptional factors are in play (see e.g. R (Lim and Siew) v Secretary of State for the Home Department

[2007] EWCA Civ 773

, [2008] INLR 60, and RK (Nepal) v Secretary of State for the Home Department

[2009] EWCA Civ 359

, [2010] INLR 37) has no direct relevance in this context.

[33]As to the applicable principles on judicial review of a decision under section 94B, the terms of the statute require the Secretary of State to form her own view on whether removal pending an appeal would breach Convention rights (see, further, the next section of this judgment). For that purpose, in an article 8 case such as the present, she has to make relevant findings of fact and conduct a proportionality balancing exercise in relation to the facts so found. In my judgment, her findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context: compare R (Giri) v Secretary of State for the Home Department

[2015] EWCA Civ 784

, applying R v Secretary of State for the Home Department, ex p. Khawaja

[1984] AC 74

and Bugdaycay v Secretary of State for the Home Department

[1987] AC 514

, and distinguishing between cases of precedent or jurisdictional fact (where the court has to decide the facts for itself) and cases where facts have to be found by the decision-maker in the exercise of a discretionary power conferred on him or her (and where those findings of fact are open to review on Wednesbury principles). But as to the assessment of proportionality, the decision of the Supreme Court in R (Lord Carlile of Berriew) v Secretary of State for the Home Department

[2014] UKSC 60

[2015] AC 945

shows that the court is obliged to form its own view, whilst giving appropriate weight (which will depend on context) to any balancing exercise carried out by the primary decision-maker.

The correct general approach to section 94B in the context of article 8

[34]The central provision in section 94B is subsection (2): the power to certify arises only “if the Secretary of State considers that … removal of P to the country or territory to which P is proposed to be removed, 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 …” (emphasis added). In other words, the Secretary of State cannot lawfully certify unless she considers that removal pending the outcome of an appeal would not be in breach of any of the person’s Convention rights as set out in schedule 1 to the Human Rights Act.

[35]By subsection (3), a ground for certification is that the person would not, before the appeals process is exhausted, face “a real risk of serious irreversible harm” if removed to the country or territory to which he or she is proposed to be removed. That ground does not, however, displace the statutory condition in subsection (2), nor does it constitute a surrogate for that condition. Even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification. She cannot certify in any case unless she considers, in accordance with subsection (2), that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act. That the risk of serious irreversible harm is not the overarching test was rightly accepted by Lord Keen on behalf of the Secretary of State at the hearing of the appeal.

[36]It follows that the Secretary of State’s guidance on section 94B (see paragraphs 8-11 above) is inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm in subsection (3) and failing to focus on the central provision in subsection (2).

[37]It is unnecessary in the circumstances to spend time discussing the criterion of serious irreversible harm, which is drawn from the jurisprudence of the ECtHR on the availability of interim measures under rule 39 of the Rules of Court (see, for example, Mamatkulov v Turkey

(2005) 41 EHRR 25

, at paragraphs 102-104 and 108). There may in practice be relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm, but it is a possibility which must be focused on as a necessary part of the decision-making process.

[38]Consideration must be given, in particular, to whether removal pending determination of an appeal would interfere with the person’s rights under article 8 and, if so, whether removal for that interim period would meet the requirements of proportionality. Unless the decision-maker considers that there would be no such interference or that any such interference would be proportionate, the claim cannot lawfully be certified under section 94B.

[39]The arguments in the present appeals relate to the procedural as well as the substantive rights afforded by article 8.

[40]As to the procedural aspect, a central submission on behalf of the appellants is that an out of country appeal would not provide them with fair and effective involvement in the appellate process and would not meet the procedural guarantees inherent in article 8; or, at least, that the Secretary of State did not take the necessary steps to satisfy herself that the procedural guarantees of article 8 would be met by an out of country appeal before certifying under section 94B. I will consider this issue in the next section of the judgment.

[41]As to the substantive aspect, both appellants point to the fact that the Secretary of State, whilst refusing their human rights claims, has accepted that the claims are arguable and should carry a right of appeal; and although one is concerned here with the position only during the interim period before an appeal can be determined, both appellants contend that their removal from the United Kingdom for that period would be an interference with their substantive rights under article 8. The details of this are examined later when assessing the lawfulness of each of the relevant decision letters.

[42]The issue of proportionality needs to be examined in the context of the individual decisions, but certain general points can be made at this stage. Lord Keen emphasised the strong public interest in the deportation of foreign nationals who have committed serious criminal offences contrary to the laws of the United Kingdom. He referred to the judgment of Laws LJ in SS (Nigeria) v Secretary of State for the Home Department

[2013] EWCA Civ 550

[2014] 1 WLR 998

, which underlined the great weight to be attached to the deportation of foreign criminals when carrying out the article 8 balancing exercise. For example:

“54. I draw particular attention to the provision contained in section 33(7) [of the UK Borders Act 2007]: ‘section 32(4) applies despite the application of Exception 1 …’, that is to say, a foreign criminal’s deportation remains conducive to the public good notwithstanding his successful reliance on article 8. I said at para 46 above that while the authorities demonstrate that there is no rule of exceptionality for article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under article 8 if it is to prevail. The pressing nature of the public interest here is vividly informed by the fact that by Parliament’s express declaration the public interest is injured if the criminal’s deportation is not effected. Such a result could in my judgment only be justified by a very strong claim indeed.”

[43]A similar point is made in the judgment of this court, given by the Master of the Rolls, in MF (Nigeria) v Secretary of State for the Home Department

[2013] EWCA Civ 1192

[2014] 1 WLR 544

, which concerned the provisions of the Immigration Rules governing deportation in an article 8 case. As was stated at paragraph 42 of the judgment (admittedly in the context of a family life claim by a person who established family life at a time when he knew it to be precarious):

“42. … [In] approaching the question of whether removal is a proportionate interference with an individual’s article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase ‘exceptional circumstances’ is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.”

[44]In general terms, and subject to specific factors such as risk of reoffending, it may be thought that less weight attaches to the public interest in removal in the context of section 94B, when the only question is whether the person should be allowed to remain in the United Kingdom for an interim period pending determination of any appeal, than when considering the underlying issue of deportation for the longer term. But the very fact that Parliament has chosen to allow removal for that interim period, provided that it does not breach section 6 of the Human Rights Act, shows that substantial weight must be attached to that public interest in that context too: Parliament has carried through the policy of the deportation provisions of the UK Borders Act 2007 into section 94B. In deciding the issue of proportionality in an article 8 case, the public interest is not a trump card but it is an important consideration in favour of removal.

[45]I should mention finally in this section that it is obvious from the wording of section 94B, and is common ground before us, that where the statutory condition in subsection (2) and the criterion in subsection (3) are met, the Secretary of State has a discretion whether to certify or not. The written submissions raised the question whether the existence of that discretion was appreciated by the Secretary of State in making the decisions. I am satisfied that it was, and the point seemed to fall away in oral argument. I therefore need say no more about it.

Whether an out of country appeals meets the procedural requirements of article 8

[46]The appellants’ case in respect of the procedural requirements of article 8 was developed by Mr Drabble QC on behalf of Mr Kiarie. His submissions were adopted, with only minor additions, by Mr Gill on behalf of Mr Byndloss.

[47]The appellants’ case rests on principles set out in the judgment of this court, given by the Master of the Rolls, in R (Gudanaviciene) v Director of Legal Aid Casework

[2014] EWCA Civ 1622

[2015] 1 WLR 2247

. The relevant question in that case concerned the circumstances in which the procedural guarantees inherent in article 8 required the grant of legal aid in an immigration case involving a claim based on private and/or family life. The court concluded that for relevant purposes the standards set by article 8 were in practice the same as those set by article 6.

[48]In relation to article 6, the judgment summarised the general principles as follows (with supporting references omitted):

“46. The general principles established by the European Court of Human Rights are now clear. Inevitably, they are derived from cases in which the question was whether there was a breach of article 6.1 in proceedings which had already taken place. We accept the following summary of the relevant case law given by Mr Drabble: (i) the Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts …; (ii) the question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily …; (iii) it is relevant whether the proceedings taken as a whole were fair …; (iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair …; and (v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent ….”

At paragraph 56 the court described the critical question as being “whether an unrepresented litigant is able to present his case effectively and without obvious unfairness”.

[49]In relation to article 8, after consideration of the Strasbourg case law, the judgment aligned the relevant standards for practical purposes with those of article 6:

“70. It is true that the test for article 8 as it is stated in the Strasbourg jurisprudence (whether those affected have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests) differs from the test for article 6.1 (whether there has been effective access to court). The article 8 test is broader than the article 6.1 test, but in practice we doubt whether there is any real difference between the two formulations in the context with which we are concerned. There is nothing in the Strasbourg jurisprudence to which our attention has been drawn which suggests that the European Court of Human Rights considers that there is any such difference. In practice, the court’s analysis of the facts in the case law does not seem to differ as between article 6.1 and article 8. This is not surprising. The focus of article 6.1 is to ensure a fair determination of civil rights and obligations by an independent and impartial tribunal. Article 8 does not dictate the form of the decision-making process that the state must put in place. But the focus of the procedural aspect of article 8 is to ensure the effective protection of an individual’s article 8 rights. To summarise, in determining what constitutes effective access to the tribunal (article 6.1) and what constitutes sufficient involvement in the decision-making process (article 8), for present purposes the standards are in practice the same. 71. As Ms Kaufmann submits, the significance of the cases lies not in their particular facts, but in the principles they establish, viz (i) decision-making processes by which article 8 rights are determined must be fair; (ii) fairness requires that individuals are 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: this means that procedures for asserting or defending rights must be effectively accessible; and (iii) effective access may require the state to fund legal representation.”

[50]In relation to the provision of legal aid, the court said in paragraph 77 that deportation cases are of particular concern. A decision to deport will often engage an individual’s article 8 rights, and where this occurs the individual will usually be able to say that the issues at stake for him are of great importance.

[51]On the particular facts of Ms Gudanaviciene’s case, which involved the application of the Immigration (European Economic Area) Regulations 2006 and issues relating to the welfare of her daughter, the court held that legal aid was required, because “without legal advice, [she] would not begin to know how to prepare her appeal, and in the absence of such preparation would be unable to present it effectively” (paragraph 91).

[52]The issue in the present appeals does not relate to the availability of legal aid but to the effectiveness and fairness of an out of country appeal against the refusal of the appellants’ human rights claims and the resulting decisions to deport them. It is submitted that in these cases an out of country appeal will not meet the procedural guarantees inherent in article 8. The appellants do not contend that an out of country appeal can never comply with article 8. They recognise, for example, that Parliament has provided for an out of country appeal as the norm in the case of refusal of entry clearance. They accept that even in the deportation context there may be straightforward cases where an appeal can proceed out of country in compliance with the procedural requirements of article 8, though they suggest that such cases will be few and far between. They submit, however, that the issues in the present cases are such that an out of country appeal would not meet the requirements of effectiveness and fairness, or at least that the Secretary of State was not in a position to satisfy herself at the time of certification under section 94B that an out of country appeal would meet those requirements.

[53]In his skeleton argument, Mr Drabble conveniently set out four reasons why it is said that the decision to remove Mr Kiarie pending appeal, requiring him to bring any appeal from outside the United Kingdom, would deprive him of effective involvement in the appellate process and would result in unfairness.

[54]The first reason is that out of country appeals are said to be generally less effective than in country appeals. Reliance is placed on the observations of Sedley LJ in R (BA (Nigeria)) v Secretary of State for the Home Department

[2009] EWCA Civ 119

[2009] QB 686

, at paragraph 21:

“… The fact is that, especially but not only where credibility is in issue, the pursuit of an appeal from outside the United Kingdom has a degree of unreality about it. Such appeals have been known to succeed, but in the rarest of cases. The reason why the Home Office is insistent on removal pending appeal wherever the law permits it is that in the great majority of cases it is the end of the appeal.”

Reference is also made to the observations of Collins J in R (MK) Tunisia)) v Secretary of State for the Home Department

[2010] EWHC 2363 (Admin)

, as endorsed by the Court of Appeal in R (E (Russia))

[2012] EWCA Civ 357

[2012] 1 WLR 3198

, where Sullivan LJ said this at paragraph 43 of his judgment:

“I endorse the view expressed by Collins J (a former President of the Immigration and Asylum Tribunal) in MK at first instance … that common sense indicates that a claimant who has to pursue an appeal while he is out of the country faces considerable disadvantages, particularly in the context of an appeal to SIAC …. ”

Mr Drabble acknowledged that the particular features of an appeal to SIAC do not apply in this case but he submitted that Sullivan LJ’s general observation remains valid.

[55]The second reason put forward in Mr Drabble’s skeleton argument is that the appellant would be faced with significant practical difficulties in procuring, preparing and presenting evidence for his appeal. He would not be present in the United Kingdom to begin and pursue the process of evidence gathering, including obtaining witness statements and documentary evidence to prove integration (school, social services) and rehabilitation (prison, probation); and he would be unable to present his case at the tribunal. The skeleton argument states that a video link is a possibility but could not be guaranteed.

[56]Those and other points relevant to the procedural issue are developed in an extensive body of additional evidence and submissions before the court. A joint written note, agreed between all counsel, provides an outline of the out of country appellate procedure and gives details, in particular, of the guidance concerning video link conferencing (see Nare (evidence by electronic means) Zimbabwe

[2011] UKUT 443 (IAC)

and the Upper Tribunal’s Guidance Note (No.2 of 2013): Video link hearings). A witness statement of Mr Kenneth Welsh, a senior Home Office official, filed on behalf of the Secretary of State provides detailed information on the appeals process and a number of matters. Certain passages of the statement were based inappropriately on information provided informally by tribunal judges and were not relied on by Lord Keen, but passages not so affected include information as to the availability of video link facilities and statistical information about appeals of various kinds and their success rates. Parts of Mr Welsh’s evidence are criticised in turn in an appellants’ joint written note in response to it. Witness statements of Mr Tom Giles, solicitor for Mr Kiaire, and of Mr Sanjeev Sharma, solicitor for Mr Byndloss, contain evidence as to the differences between deportation appeals and entry clearance appeals, the importance of an appellant’s oral evidence in a deportation case, the limited availability and use of video conferencing facilities within the tribunal system and in locations overseas, the cost and difficulty for an appellant seeking to give evidence by video link, and a variety of related matters. There is also evidence from a number of other lawyers about their experiences in relation to video conferencing and use of Skype. It is not practical to go into the detail of that material, but I have read the material and have taken it into account.

[57]The third reason given in Mr Drabble’s skeleton argument is that removal pending appeal would have a clear impact on the overall fairness of the proceedings, including the appearance of fairness. The position of the out of country appellant, in a case the consequences of which could not be more serious, is contrasted with that of the Secretary of State, head of a well-resourced department of state, who pursues the appellant’s deportation and will be represented at the hearing by a well-trained official or conceivably by counsel.

[58]The fourth reason is said to be that requiring the appellant to pursue an appeal out of country would be likely to diminish his chances of success and, by parity of reasoning, to enhance the Secretary of State’s prospects of successfully resisting the appeal. It is suggested that in Mr Kiarie’s case the Secretary of State, by certifying under section 94B, would be able to resolve against him all the factors that must go in his favour in order to succeed on appeal. The basis of his article 8 claim on appeal would be the presence of very significant obstacles to his integration in Kenya, but if returned to Kenya pending appeal he would be compelled to integrate into society to some extent and to set down some ties in order to live and survive. He would also be prevented from preserving, developing and enjoying his private ties in the United Kingdom; and to the extent that he wished to maintain some connection, he would be required to use electronic and telephonic methods of communication, thereby, at least in part, proving the sufficiency of those methods of communication. In addition, removal pending appeal would take him away from the licensing regime into which he would be released from prison in the United Kingdom, depriving him of an important opportunity to prove his rehabilitation and reduced risk. All this is said to be acutely unfair to Mr Kiarie, and the fact that the Secretary of State can choose to “impose” that unfairness on him by certifying under section 94B is submitted to be the critical problem.

[59]On behalf of the Secretary of State, Lord Keen’s general response to those various points is that the appellants’ out of country appeals will be determined by an independent, impartial and experienced specialist tribunal which will be mindful of its own obligations, as a public body, to ensure that they have the benefit of the procedural protections implicit in, and associated with, their substantive rights under article 8. The tribunals are under a duty to ensure that cases are dealt with justly and fairly. The judges are familiar with all of the difficulties which can arise in immigration appeals, whether brought from within or from outside the United Kingdom, and are acutely aware of the consequences of success or failure for individual appellants and their families. They are best placed to assess the requirements of justice and fairness in the particular circumstances of each case. All rules, practice directions and practice statements are made on the assumption that they will be applied and interpreted in accordance with the principles of natural justice and general public law.

[60]Lord Keen further points out that a tribunal may be able fairly to determine an appeal without the appellant giving oral evidence. It will be able to consider any written evidence he submits, together with documentary evidence and oral and/or written evidence from family members, friends and others. An appellant can, if he wishes, instruct a legal representative in the United Kingdom to prepare and present the appeal, though the determination of an article 8 appeal is more likely to turn on the evidence of family and friends than on complex legal arguments. If an appellant considers that oral evidence is needed, he can make an application to the tribunal to give that evidence via video-link, Skype or telephone; and, whatever the practical difficulties, the tribunal will have to make arrangements accordingly if it considers that evidence of that kind is necessary for the fair determination of the appeal. If in such a case it proves impossible to receive evidence by video link or other means of electronic communication, or if the tribunal otherwise considers that the appellant’s attendance in person is necessary for the fair determination of the appeal, it can by summons require the appellant’s attendance as a witness, pursuant to rule 15 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 or a similar power in the Upper Tribunal. Such a summons would be tantamount to a direction (albeit not directly enforceable) to the Secretary of State to allow the appellant’s return to the United Kingdom for the purpose of giving evidence; and in the interests of fairness the tribunal could draw such inferences as it thought fit in the appellant’s favour if the Secretary of State did not accede to that course.

[61]A further aspect of the argument on behalf of the Secretary of State is that out of country appeals against refusals of entry clearance have been a feature of the immigration appellate regime for several decades and, notwithstanding the cases cited by Mr Drabble that refer to their disadvantages, they have been consistently held to provide an effective remedy. They are generally based on written evidence from the appellant together with oral and/or written evidence from family members and/or friends in the United Kingdom. Some of them raise human rights issues. In so far as it is appropriate to measure effectiveness by success rates, the internal statistics for entry clearance human rights appeals in the 5-year period August 2010 to July 2015 show an average success rate of 37.5% and higher success rates for appeals from Kenya (Mr Kiarie’s country of origin) and Jamaica (Mr Byndloss’s country of origin).

[62]In response to the complaint that requiring Mr Kiarie to return to Kenya pending determination of his appeal would unfairly undermine his argument that there are serious obstacles to his integration in Kenya, Lord Keen makes the obvious point that it cannot be unfair for the tribunal to take account of evidence that shows that the Secretary of State is correct in her view that given his age, state of health and education, he is likely to be able to establish social and cultural ties in Kenya and to gain employment there. There is no merit in the argument that because it might be more advantageous to the appellant if the tribunal had to speculate about his prospects of integration, it is somehow unfair for the tribunal to proceed on a better informed basis.

[63]I accept the general thrust of the case advanced on behalf of the Secretary of State on this issue. More specifically, I would state my conclusions on the competing arguments as follows.

[64]First, I accept that an out of country appeal will be less advantageous to the appellant than an in country appeal. But article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. It requires access to a procedure that meets the essential requirements of effectiveness and fairness. Entry clearance cases may often be more straightforward but they too can raise human rights issues, and experience in them shows that an out of country appeal is capable of meeting those requirements. Moreover, the available statistics regarding success rates in such cases paint a far more favourable picture for appellants than was suggested by the observations of Sedley LJ in R (BA (Nigeria)) v Secretary of State for the Home Department (see paragraph 54 above).

[65]The Secretary of State is entitled, in my view, to rely on the specialist immigration judges within the tribunal system to ensure that an appellant is given effective access to the decision-making process and that the process is fair to the appellant, irrespective of whether the appeal is brought in country or out of country. They will be alert to the fact that out of country appeals are a new departure in deportation cases, and they will be aware of the particular seriousness of deportation for an appellant and his family. All this can be taken into account in the conduct of an appeal. If particular procedures are needed in order to enable an appellant to present his case properly or for his credibility to be properly assessed, there is sufficient flexibility within the system to ensure that those procedures are put in place. That applies most obviously to the provision of facilities for video conferencing or other forms of two-way electronic communication or, if truly necessary, the issue of a witness summons so as to put pressure on the Secretary of State to allow the appellant’s attendance to give oral evidence in person.

[66]There are difficulties for any appellant, particularly an unrepresented defendant, in preparing evidence for an appeal and presenting it to the tribunal, but I do not accept that those difficulties will be so much greater where the appeal is brought out of country as to amount to a denial of effective participation in the decision-making process or to render the procedure unfair. In these days of electronic communications, an out of country appellant does not face serious obstacles to the preparation or submission of witness statements or the obtaining of relevant documents for the purposes of an appeal. He can instruct a lawyer in the United Kingdom if he has the funds to do so. If he does not have the funds to instruct a lawyer but the case is so complex that an appeal cannot properly be presented without the assistance of a lawyer, he will be entitled to legal aid under the exceptional funding provisions considered in R (Gudanaviciene) v Director of Legal Aid Casework (paragraphs 47-51 above). It was accepted by Mr Drabble that such entitlement would not be affected by the fact that the appellant has to bring the appeal from outside the United Kingdom.

[67]It is said in evidence on behalf of Mr Kiarie that it would be necessary for him to obtain a report of a forensic psychiatrist in relation to risk of reoffending and that psychiatric assessments made with the use of video conferencing technology should be viewed with caution. I do not accept that it is necessary in the generality of cases to obtain an expert psychiatric report for the purpose: the risk of reoffending can generally be assessed on the basis of the sentencing remarks and the reports that were before the sentencing judge. But if a further report is required, the evidence does not in my view establish either that it has to be obtained in the United Kingdom or that, if a UK expert has to be instructed, an appropriate assessment cannot be made on the basis of video conferencing or other form of electronic communication, in addition to the relevant written material.

[68]I agree with Lord Keen that there is no merit in the argument that Mr Kiarie’s removal to Kenya would unfairly weaken his case on the appeal because he would have to integrate to some extent into society in Kenya and establish ties there. There would be no unfairness in the tribunal being able to receive evidence of the appellant’s actual experience in Kenya, irrespective of whether that evidence supported the Secretary of State’s case or the appellant’s case. The same goes for any evidence about the maintenance of contact and connections with the United Kingdom by the various means of communication available.

[69]Accordingly, I reject the submission that an out of country appeal against a deportation decision would deprive the appellants of effective participation in the decision-making process and of a fair procedure. In reaching that conclusion I have also borne in mind Mr Drabble’s point about the appearance of fairness. Despite the disadvantages to which an appellant would be subject, I do not accept that an out of country appeal would either be unfair or would appear to be unfair. Things can of course go wrong in practice in individual cases, but there is no basis for condemning an out of country appeal as inherently unfair.

[70]Nor do I attach any significance in the circumstances to the fact that the requirement to bring an appeal from outside the United Kingdom is the result of the Secretary of State’s own decision to certify under section 94B. A similar argument that it was wrong for the Secretary of State, as the respondent to an appeal, to impose a disadvantage on an appellant was rejected by the Master of the Rolls in Lord Chancellor v Detention Action

[2015] EWCA Civ 840

, at paragraph 48:

“It is sufficient for me to say that, if (contrary to my view) the rules themselves are procedurally fair and enable an appellant to present his appeal fairly and justice to be achieved, then I do not consider that the fact that an appellant is in the fast track system as a result of the decision of the SSHD is relevant. Ex hypothesi, the decision of the SSHD has not impeded the ability of the appellant to present his case fairly and the FTT to decide the appeal justly.”

That reasoning can be applied with equal force to an out of country appeal in a deportation case.

[71]For all those reasons, the Secretary of State is entitled in my view to proceed on the basis that an out of country appeal will meet the procedural requirements of article 8 in the generality of criminal deportation cases. If particular reasons are advanced as to why an out of country appeal would fail to meet those requirements, they must be considered and assessed. But on the evidence before the court, I am satisfied in relation to each of the present appellants that certification under section 94B, requiring an appeal against the relevant deportation decision to be brought from outside the United Kingdom, is not a breach of the appellant’s procedural rights under article 8.

The lawfulness of the certification decision in respect of Mr Kiarie

[72]The decision dated 10 October 2014 to certify Mr Kiarie’s human rights claim under section 94B, and the background to that decision, are described at paragraphs 13-17 above. In Mr Kiarie’s case, there has been no supplementary decision letter.

[73]In my judgment, the decision was flawed by reason of two legal errors: i) First, Mr Kiarie was not informed in advance that consideration was being given to the certification of his claim under section 94B and he was not given a fair opportunity to make representations on the subject: he could not reasonably have been expected to make such representations in the absence of notice, given that the section was not even in force at the date when he was notified of the intention to make a deportation order against him. The course adopted was procedurally unfair. ii) Secondly, the decision to certify, in line with the guidance, focused erroneously on the question of serious irreversible harm and failed to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Kiarie’s procedural or substantive rights under article 8. Thus, the decision was based on a legal misdirection.

[74]I am satisfied, however, that neither of those errors was material. Procedural failings have to be viewed with caution and they will often invalidate a decision, but in this case I have no doubt that the decision would have been the same if the correct approach to section 94B had been adopted and account had been taken of the relevant material put forward on the appellant’s behalf in these proceedings,.

[75]I need say no more about the procedural aspect of article 8. For the reasons already given, the Secretary of State was entitled to conclude (and she would plainly have concluded) that it was compatible with the procedural guarantees provided by article 8 to require Mr Kiarie to bring an appeal against the deportation decision from outside the United Kingdom.

[76]As to Mr Kiarie’s substantive rights under article 8, it is necessary to say a little more about the reasoning that led to the refusal of his human rights claim. He did not have any children. He was not married or in a civil partnership or any relationship. His claim was based essentially on private life rather than family life. He was 20 years old at the time and had been in the United Kingdom since the age of 3 (which, as Mr Drabble pointed out, engaged the considerations set out by the ECtHR in Maslov v Austria [2009] INLR 47). Whilst the length of lawful residence in the United Kingdom was acknowledged, the decision letter did not accept that he was socially and culturally integrated into the United Kingdom despite his ability to speak English (his offending being said to be indicative of such lack of integration). It was not accepted that there would be very significant obstacles to his reintegration into Kenya, where English was a national or official language and where there was some evidence that he might have remaining relatives. He had no apparent health issues. His education and experiences in the United Kingdom might well assist him in establishing a career for himself in Kenya. Those and other matters were taken into account in reaching the conclusion that the public interest in deporting him outweighed his right to private and family life. Aspects of that analysis were then carried across into the reasoning set out in support of the certification under section 94B.

[77]Recent witness statements from Mr Kiarie himself and from his mother seek to underline the difficulties he would face if removed to Kenya, but even if those statements are taken into account they do not appear to me to add materially to the evidence that was before the Secretary of State at the time of the original decision or to affect the essential reasoning in that decision.

[78]If the certification decision had focused on the wider question of breach of article 8, rather on the question of serious irreversible harm, I am satisfied that its conclusion would have been the same. Removal to Kenya pending determination of an appeal involves only a short-term interference with Mr Kaire’s private life in the United Kingdom. The difficulties of integration in Kenya for that limited period do not appear to me to be serious obstacles to removal and do not therefore have great weight in the balance. By contrast, as discussed at paragraph 44 above, the public interest in removal of a person with Mr Kiarie’s offending record carries substantial weight even in relation to removal pending an appeal. Taking everything into account, the balance appears to me to come down firmly in favour of the proportionality of removal for that interim period.

[79]In recognition of the errors affecting the original decision and the importance of the issues canvassed before us, I would allow Mr Kiarie’s appeal to the extent of granting permission to apply for judicial review; but I would reserve the substantive claim for judicial review to this court and, for the reasons given, I would dismiss that claim.

The lawfulness of the certification decisions in respect of Mr Byndloss

[80]The original decision dated 6 October 2014 to certify Mr Byndloss’s human rights claim under section 94B, and the background to that decision, are described at paragraphs 18-21 above. In my judgment, that decision was flawed by reason of the same two legal errors as affected the original decision in respect of Mr Kiaire, namely(i) procedural unfairness in failing to give an opportunity to make representations on the subject of certification, and

(ii) an erroneous focus on the question of serious irreversible harm and a failure to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of Mr Byndloss’s procedural or substantive rights under article 8.

[81]In Mr Byndloss’s case, however, there is also the supplementary decision letter dated 3 September 2015, by which time he had had ample opportunity to put forward such further material as he wished to rely on to resist certification under section 94B. The supplementary decision letter is described at paragraphs 22-26 above. It took due account of the further material and provided detailed reasons for deciding to maintain the certification. If the decision reached in the supplementary letter is lawful, the errors in the original decision letter are immaterial. In the circumstances, it is plain that the focus of attention should now be on the supplementary letter.

[82]That also makes it unnecessary to consider a further argument advanced by Mr Gill in relation to the original decision, to the effect that Mr Byndloss’s case did not meet the criteria for consideration of certification in the initial test phase that ended on 17 October 2014 (see the guidance described at paragraphs 8(i) and 9 above). That argument falls away because the test phase had expired long before the supplementary decision letter.

[83]The section in the supplementary decision letter on certification applies the correct legal approach towards section 94B, focusing on the question whether removal pending an appeal would be unlawful under section 6 of the Human Rights Act and, in particular, whether it would be in breach of article 8. On that point, therefore, the error in the original decision letter is corrected.

[84]The supplementary letter concludes that the requirement to bring an appeal from outside the United Kingdom would not be in breach of the procedural guarantees provided by article 8. For the reasons already given, that conclusion was in my view legally correct.

[85]The letter goes on to examine the substantive position under article 8. In order to deal with that, and with the specific criticisms advanced in relation to it by Mr Gill, it is necessary to give more details of Mr Byndloss’s reliance on article 8 as a ground for resisting deportation. He claimed to have family life in the United Kingdom with eight children: four by his wife (with whom he also claimed to have family life), three by a different partner, and one (a 7 year old girl to whom I will refer as T) by yet another partner.

[86]In dealing with that claim, the letter examines in considerable detail, by reference to the relevant provisions of the Immigration Rules, the evidence relating to each group of children. It concludes inter alia that:

“… whilst you are the biological father of at least seven children, you have no relationship with any of them whereby you provide a consistent or parental presence in their daily lives. There is nothing to demonstrate that you make any meaningful contribution in terms of practical, financial or emotional support and nothing to show that you play any part in taking decisions about the children’s daily lives. The children’s day to day needs are and will continue to be provided by their respective mothers.”

In relation to T, to whose position Mr Gill drew particular attention, the letter points out that Mr Byndloss had not provided documentary evidence of her date of birth, and his representative had stated that a birth certificate had not been provided as Mr Byndloss was not listed as the father. There were letters from the mother stating that he was the father but there was no evidence to demonstrate that he was the biological father. He had not demonstrated that he was living with the mother or T as a family either before or at the point of his imprisonment. He had provided no evidence of any meaningful parental involvement in T’s life. In any event, it was not accepted that it would be unduly harsh for T to live in Jamaica.

[87]The reasoning also includes a lengthy section headed “Best interests of the children – section 55 of the Borders, Citizenship and Immigration Act 2009”. It states that the section 55 duty has been taken into account and that the best interests of the children have been a primary consideration in making the decision. It also states:

“In considering the best interests of your children, the Home Office has considered the following: Is there a genuine and subsisting parental relationship: for the reasons set out in the sections above which consider your relationship with your individual children, the Home Office does not accept that you have a genuine and subsisting parental relationship with any of your children. Specifically, you have not demonstrated that you had such a relationship prior to your imprisonment, that such a relationship was created or maintained during your imprisonment and no evidence has been provided as to your relationship with your children since your release. Are the children in question British Citizens or have they lived in the UK for a continuous period of 7 years: each child (apart from [T], whose nationality has not been verified) is a British citizen and has an unqualified right to remain in the United Kingdom. Would it be unduly harsh to expect the British Citizen children to leave the UK: in the event of your deportation, it is considered that the best interests of your children would be served by remaining in the UK in the care of their respective mothers. This would ensure the continuance of the daily family life that each child is well accustomed to, given that you do not fulfil a parenting role in their daily lives and there is no genuine and subsisting parental relationship between you and your children. However, it is also accepted that the question of whether any or all of the children should re-locate to Jamaica to be with you, with or without their respective mothers, is a matter for you and those mothers to decide. In the event that a decision was taken to relocate, it is noted that Jamaica has a functioning health and education system, such that the children’s welfare could be sustained, with the support of their parents.”

[88]The letter goes on to consider the question of family life with a partner, in relation to which it is accepted that Mr Byndloss is still married but it is not accepted that the relationship is genuine and subsisting. It also considers the question of private life, before reaching the conclusion that the public interest in deportation outweighs his right to private and family life.

[89]The various points considered in the context of the substantive claim under article 8 can be seen to feed in to the reasoning in support of the decision to certify under section 94B. The relevant part of the letter in respect of certification is set out at paragraph 26 above and is not repeated here.

[90]On the face of it, the conclusion reached in the letter, that Mr Byndloss’s removal pending appeal would not be in breach of his article 8 rights or those of his wife, his former partners or his children, is well reasoned and compelling. A central theme of Mr Gill’s submissions, however, was that the decision failed to take proper account of the best interests of the children. It is necessary therefore to examine those submissions.

[91]Mr Gill drew attention to important and well known passages in ZH (Tanzania) v Secretary of State for the Home Department

[2011] UKSC 4

[2011] 2 AC 166

, as further considered in Zoumbas v Secretary of State for the Home Department

[2013] UKSC 74

[2013] 1 WLR 3690

,concerning the best interests of children, the need to take those best interests into account as a primary consideration in assessing proportionality under article 8, and how such best interests are to be discovered. He submitted that the requisite consideration of children’s best interests is missing from deportation cases such as SS (Nigeria) v Secretary of State for the Home Department (cited above) – a submission which, as it seems to me, fails to recognise the careful consideration given to the topic in Laws LJ’s judgment in that case. All of that, however, appeared to be by way of background rather than being directly in issue in the present appeals.

[92]As regards direct criticism of the supplementary decision letter, various matters are raised in a written “speaking note on irrationality” which Mr Gill handed in to the court during his oral submissions and which he relied on for those parts of his submissions which he did not have time to develop orally. The speaking note argues that the original decision was legally defective for various reasons and that the supplementary decision letter is legally defective(i) because it continues to rely on and seeks to add to the reasons in the original letter, which therefore “infect” the supplementary letter, and

(ii) on additional grounds. It seems to me that the supplementary letter stands largely on its own feet, but in so far as the points of criticism levelled against the original decision can equally be levelled against the supplementary letter, I have thought it right to consider them, rather than limiting myself to the additional grounds of criticism directed specifically at the supplementary letter. I do not, however, intend to deal with all the individual points raised or to consider them seriatim. They can be grouped into broad categories.

[93]First, various complaints are made about the treatment of the evidence, and it is submitted that the negative findings concerning Mr Byndloss’s relationship with the children and the part he plays in their lives are contrary to the evidence and are unreasonable. This area needs to be treated with caution. Mr Byndloss has a right of appeal against the refusal of his human rights claim, and it will be for the tribunal to assess all the evidence on that appeal. I do not want to trespass into the territory of that appeal. It is sufficient for me to say that in my view the points made in respect of family life in the certification section of the supplementary letter have a sufficient evidential basis to them and are not open to successful challenge on grounds of perversity.

[94]Secondly, it is said that there was a failure in various respects to carry out a proper analysis of the best interests of the children, in particular by failing to take account of relevant guidance or to act in accordance with it. Mr Gill referred to Every Child Matters: Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children” (November 2009), to a Home Office document, Criminal casework: Introduction to children and family cases (in a version valid from 28 July 2014), and to Immigration directorate instructions, Chapter 13: criminality guidance in

Article 8 ECHR

cases (Version 5.0, 28 July 2014). He submitted that none of this guidance is referred to in the guidance on certification under section 94B which was followed in the decision letters (though that guidance, from version 2 onwards, does draw attention to section 55 of the 2009 Act and refers to additional relevant guidance on that provision). He submitted that there was a failure to make appropriate further inquiry and a failure to seek the assistance of a trained senior caseworker, who in a complex case should have sought advice in turn from criminal casework’s “safeguarding children coordinators”. Mr Gill also pointed to what was said by the Upper Tribunal in MK (section 55 – Tribunal options) Sierra Leone

[2015] UKUT 00223 (IAC)

about the duty to make further inquiry where a tribunal considers itself insufficiently informed to make a proper assessment of the best interests of a child.

[95]Those various concerns seem to me to be misplaced. Having regard to the information provided by or on behalf of the appellant, the Secretary of State was entitled to proceed for the purposes of certification on the factual basis set out in the supplementary letter, and on that basis there was in my view simply no need for further inquiry, advice or consideration of the kind referred to by Mr Gill.

[96]Mr Gill submitted further that the decisions do not ask the right question in relation to the children’s best interests, namely whether it is in their best interests to remain in the United Kingdom with their father as well as their mother or, to put it another way, whether it is in their best interests for Mr Byndloss to remain in the United Kingdom. I do not accept the submission. It appears to me that the question of best interests, including the application of section 55 of the 2009 Act, is addressed appropriately and adequately in the certification section of the supplementary letter.

[97]Mr Gill also criticised the passages in the decision letters as to whether it would be “unduly harsh” for the children to live in Jamaica. But those passages are not a determinative part of the reasoning in support of certification and do not in any event, in my view, involve any legal error in the consideration given to the best interests of the children.

[98]A further submission is that the Secretary of State was wrong to proceed to the supplementary decision without waiting for further evidence which she was informed was in preparation and which has subsequently been filed. I see no force in that submission. Mr Byndloss had filed evidence long ago in support of his judicial review claim and had had ample opportunity to file whatever further evidence he wished to rely on. The Secretary of State was entitled to react to that evidence by a supplementary decision. She might have reacted more promptly than she did; but in any event, with the hearing of the appeal imminent, it was reasonable to proceed to a decision without waiting for further evidence.

[99]I should make clear at this point that I accept Lord Keen’s submission that the lawfulness of the supplementary decision must be assessed on the basis of the evidence before the Secretary of State at the time of that decision. The Secretary of State can give consideration in due course to the evidence produced subsequently by Mr Byndloss. The possibility that this might lead to a further decision which, if adverse to Mr Byndloss, might trigger a further judicial review claim was viewed with equanimity by Lord Keen. I reject a contention by Mr Gill that the court should decide the matter for itself on the basis of all the evidence now before the court. That would go beyond review of the Secretary of State’s decisions and would involve a usurpation of her role as the person entrusted by Parliament with the power to certify under section 94B.

[100]Mr Gill criticised the way the balancing exercise was carried out and appeared at one point to submit that there is no room for certification under section 94B where there is a meaningful relationship between the person to be deported and a child in the United Kingdom. The point can have no application to the present case, where, in the context of certification, the view reasonably taken on the evidence was that there was no sufficiently meaningful relationship between Mr Byndloss and any of the children. But I would reject the submission in any event. It runs contrary to authority in seeking to elevate children’s best interests beyond a primary consideration in decision-making and to turn them into the paramount or determinative factor.

[101]In relation to Mr Byndloss, I therefore conclude that although there were errors in the original decision, they are not material because the original decision was superseded by a supplementary decision that does not suffer from those errors and that set outs a lawful basis for the maintenance of the certification under section 94B. In the circumstances, I would adopt the same approach in this case as in relation to Mr Kiarie, by granting permission to apply for judicial review but reserving the substantive claim to this court and dismissing it.

Conclusion

[102]I am conscious that I have not covered every point raised in argument. I have endeavoured, however, to address the main submissions on the central issues.

[103]For the reasons given, I would allow both appeals to the limited extent of granting permission to apply for judicial review. In each case, however, I would reserve the substantive claim for judicial review to this court and would dismiss that claim.

Lord Justice Elias :

[104]I agree.

Lord Justice McCombe :

[105]I also agree.

Cited in 16 later judgments

and 7 more of the most senior