“Consideration has been given to whether your Article 8 claim should be certified under Section 94B of the 2002 Act. 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 in light of the above. 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. … Appeal … You may appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against the decision to refuse your human rights claim under Section 82(1) of the 2002 Act. You may only exercise your right of appeal from outside the United Kingdom.”
“Your claims and evidence have been considered, but it is not accepted that you have demonstrated that removing you prior to the hearing of any appeal against a decision to make you the subject to a deportation order would give rise to a risk of serious irreversible harm for you, your children, or their respective mothers.”
“(4) The human rights application was not accompanied by evidence that the partner or the applicant’s children could not continue their lives in the way they did when he was in prison. There was no evidence before the respondent to suggest that the applicant’s family would be destitute, or that their health issues require his presence during the period of his appeal, or that they would be unable to cope during his temporary removal (I note that the applicant’s partner was the sole carer for their daughter during his lengthy imprisonment). There was no evidence that the family would face any significant difficulties or hardship. Although the daughter has congenital abnormalities of her hands and feet, and a medical letter of August 2010 stated that extensive surgery was anticipated, there has as yet been no surgery, nor is there any more up-to-date medical report.”
“… the following propositions can be derived from the authorities. i) Where the Secretary of State rejects a human rights claim of a proposed deportee, an out-of-country appeal will not always be ineffective in protecting the human rights involved. Whether it will be effective will depend upon the facts and circumstances of the particular case. ii) Where the Secretary of State precludes an in-country appeal, by (e.g.) certifying a human rights claim under section 94B, that is not necessarily unlawful; but it is sufficient to establish a potential interference with the proposed deportee's article 8 rights, such that a burden is imposed on the Secretary of State to establish that that interference is justified and proportionate, and that removal from the UK without waiting for an appeal to run its course strikes a fair balance between the adverse effect of deportation at that stage on relevant rights under article 8 and the public interest. In particular, the Secretary of State will need to show that an out-of-country appeal will be effective to protect the article 8 rights in play. iii) Where an individual is deported on the basis of an unlawful certificate, the court has a discretion as to whether to make a mandatory order against the Secretary of State to return him to the UK so that he can (amongst other things) conduct his appeal in-country. That discretion is wide, and there is no presumption in favour of return, even where certification is unlawful. The exercise of the discretion will be fact-sensitive. However, when assessing whether it is just and appropriate to make a mandatory order for return of a deportee, the fact that that person has been unlawfully deprived of an in-country appeal to which he is entitled under statute is the starting point and a factor telling strongly in favour of ordering his return. iv) It will be a highly material consideration if the deportation was lawful or apparently lawful, in the sense that, even if a human rights claim that a deportation order should not be made or maintained has been unlawfully certified, the individual was deported on the basis of a deportation order that was not bad on its face and was not, at the relevant time, the subject of any appeal; and/or an application for a stay on removal had been refused or the court had directed that any further proceedings should not act as a bar to removal. On the other hand, it will also be material if the individual has been removed in the face of a stay on removal, or even if there is an active relevant appeal or judicial review in which the issue of a stay on removal has not been tested. v) The extent to which the individual's appeal will be adversely affected if he is not returned to the UK will also be highly relevant. It will be adversely affected if it is assessed that, if he is restricted to bringing or maintaining an out-of-country appeal, that will be inadequate to protect the article 8 rights of the individual and his relevant family members. The continuing absence of the individual from the UK may adversely affect his ability to present his appeal properly in a variety of ways, for example he may be unable properly to instruct legal representatives; he may be unable to obtain effective professional expert evidence; he may be unable to give evidence, either effectively or at all. If the court assesses that, even if the exercise would be more difficult than pursuing his appeal in the UK, the deportee could effectively pursue his appeal from abroad, that is likely to be finding of great weight and will often be determinative in favour of exercising the court's discretion not to make a mandatory order for return. On the other hand, if the court assesses that he could not effectively pursue an appeal from abroad, then that may well be determinative in favour of exercising that discretion in favour of making a mandatory order for return. vi) In addition to these procedural matters, the deportee's continuing absence from the UK may be a breach of article 8 in the sense that he is deprived from being with his family, and they from being with him, pending the outcome of the appeal. Generally, such a breach will not be irremediable. However, in addition to that being a potential substantive breach of article 8, it may result in his article 8 claim in the deportation case being undermined on a continuing basis, which may be a factor of some importance. These matters too may be relevant to the assessment of whether to make a mandatory order for the deportee's return. vii) There is a public interest in deporting foreign criminals – and in not returning foreign criminals who have been deported – although that may be a point of little weight where the relevant individual would have had the right to remain in the UK during the course of his appeal but for an (unlawful) certificate. There is also a public interest in public money not being expended on arranging for returning a deportee to this country to conduct an appeal which could adequately and fairly be conducted from abroad.”
“65. … Before this court the Home Secretary does not continue to contend for the suitability of a summons under rule 15(1). She nevertheless suggests that the tribunal could, by direction, stress the desirability of the appellant’s attendance before it and that, were she thereupon to fail to facilitate his attendance, the appellant could seek judicial review of the certificate under section 94B and, if successful, a consequential order for his return at least pending the appeal. But whether the tribunal could, or if so would, give such a direction in the teeth of a subsisting certificate is doubtful; and in any event it seems entirely impractical for an appellant abroad to apply first for the unenforceable direction and then for judicial review of any failure to comply with it.”
“86. Mr Nixon's appeal is due to be heard by the First-tier Tribunal on6 March 2018 . Although the Secretary of State has not submitted all of the evidence that she would wish to rely upon if she were required to prove the effectiveness of an out-of-country appeal in Mr Nixon's case, Miss Giovannetti has put forward a compelling case for there being some optimism and confidence that the steps that the Secretary of State is taking (e.g. to ensure appropriate video-link facilities are available to enable Mr Nixon to give evidence from Jamaica) will be sufficient to render the appeal effective for the purposes of article 8. Indeed, Mr Bedford frankly and with good grace accepts that they may do so; but he is sceptical that, in the event, they will. In the circumstances, he urges me to grant permission to appeal against the refusal of Phillips J to refuse permission to proceed with the judicial review challenge to the section 94A certification – or, as perhaps a better alternative, to grant permission to proceed with the judicial review, and remit the matter to the Administrative Court for it to consider, on the basis of evidence from both parties (including the Secretary of State as to the facilities that are generally available in Jamaica for video-link hearings etc), whether an out-of-country appeal would be effective in Mr Nixon's case. 87. However, in the circumstances, I do not consider that it would be sensible or appropriate to grant permission to appeal or permission to proceed with the judicial review of the certificate now. In my view, the clearly better course is to grant permission for Mr Nixon to re-amend his grounds to in the terms of Grounds 2 and 3, and to stay the application for permission to appeal in respect of those grounds until after the First-tier Tribunal has determined Mr Nixon's appeal and any appeal from that determination has been dealt with. The First-tier Tribunal is, in my view, the more experienced and appropriate forum for the determination of factual issues such as those that arise in this case, notably the nature of the relationship between Mr Nixon, and his wife and son. It is inherently better for that issue to be considered on the basis of the facilities that are in fact made available for this case, as opposed to the Administrative Court conducting the exercise hypothetically, on the basis of general evidence provided by the Secretary of State. As I have indicated, there is reason for some confidence that the First-tier Tribunal will be in a position to conduct an effective appeal. Without falling into the heresy identified by the Supreme Court in Kiarie and Byndloss, it is nevertheless worthy of note that the tribunal will of course be under an obligation to ensure the appeal is effective, and will no doubt take appropriate steps to ensure that it is so. 88. If the appeal is effective to protect the relevant article 8 rights, then there will be no substance left in this appeal. In the event that the appeal is not conducted so as to protect the relevant article 8 rights effectively – or if Mr Nixon considers that to be the case – then he will be able to return to this court and press for permission to appeal or permission to proceed with the judicial review. By that stage, the cases to which I have referred in paragraph 19 above, that have been set up for the First-tier Tribunal to deal with out-of-country appeals using video-link facilities etc, will also have been determined. This court can then consider permission to appeal, if indeed matters requiring further consideration by this court remain.”