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UK Supreme Court rules “Deport first, appeal later” power is unlawful

The following is a guest post by Conleth Burns, a foreign law intern working this summer in the Global Legal Research Directorate of the Law Library of Congress.

Supreme Court of the United Kingdom, January 2017. [photo by Conleth Burns]

Recently, in the R (Kiarie) v Secretary of State for the Home Department [2017] UKSC 17 case, the United Kingdom (U.K) Supreme Court issued a decision concerning the ability to make human rights-based appeals, against the Home Secretary’s deportation orders to foreign criminals. Section 94B of the Nationality, Immigration and Asylum Act 2002 (as amended by s. 17 (3) of the Immigration Act 2014 and s.63 of the Immigration Act 2016) created the ‘deport first, appeal later’ deportation power. Section 94B(2) states that: “despite the appeals process not having been begun or…exhausted, refusing P entry to, removing P from or requiring P to leave the United Kingdomwould not be unlawful.” (Home Office, Certification under section 94B of the Nationality, Immigration and Asylum Act 2002, Version 8.0 at 5)

In practical terms, under §94B any appeal against deportation of a foreign criminal (since July 2014) and any appeal against deportation of someone who has overstayed their leave to remain in the U.K. (since December 2016) has to be appealed from outside the U.K. The U.K Supreme Court in R (Kiarie) v Secretary of State for the Home Department [2017] UKSC 17  ruled that deportation certifications by the Home Secretary to foreign criminals were unlawful; they had not achieved the fair balance between the rights of the appellants under Article 8 Human Rights Act 1998 (Right to Private and Family Life) and the public interest. The Supreme Court only considered the effect of §94B for foreign criminals in this judgement. 

The ‘Deport first, appeal later’ policy was first implemented in 2014 under then Home Secretary Theresa May. At the Conservative Party Conference 2013 she stated: “where there is no risk of serious and irreversible harm, we should deport foreign criminals first and hear their appeal later.” (Theresa May, Home Secretary Speech to 2013 Conservative Party Conference, UKPOL, 12/3/15). The Supreme Court took the opinion that an inability to appeal deportation certifications was equally harmful. Since the amendment’s inception in July 2014 through December 2016, 1,175 certificates were issued. Only 72 of these were subject to appeal, and not a single one has been successful. (R (Kiarie) v Secretary of State for the Home Department ¶ 77, supra.). These statistics form the backdrop for the Supreme Court’s reasoning.

The Supreme Court has faced two questions: whether an appellant was likely to be legally represented when an appeal is brought from abroad; and whether the appellant has a worthwhile chance of winning his/her appeal.  Lord Wilson (leading the majority opinion) answered that an effective appeal requires the appellants to be afforded the opportunity to give live evidence. The judgement added that financial and logistical barriers to giving evidence on screen from abroad are almost insurmountable (R (Kiarie) v Secretary of State for the Home Department ¶ 76, supra.). The Supreme Court held that leaving the appellant without effective means of appeal was imbalanced, unfair and unlawful.

As a result of the appeal, it is anticipated that the Home Secretary’s usage of ‘deport first, appeal later’ certifications will be scaled back. Manjit S Gill QC, leading counsel for one of the appellants, indicated that this decision will: “heavily limit, if not entirely curtail, the home secretary’s use of the controversial ‘deport first, appeal later’ power (for those) who wish to challenge deportation decisions on the basis that deportation will infringe the right to family or private life.” (Supreme Court Rules UK System for Deporting Foreign Criminals Unlawful, The Guardian, June 14, 2017). Clive Coleman, legal affairs correspondent with the BBC, characterized the ruling as a “hammer blow to the Home Office.” (‘Deport First, Appeal Later’ Policy Ruled Unlawful, BBC News, June 14, 2017).

As the Brexit negotiations begin, this question may be raised again.  Under the Immigration (European Economic Area) Regulations 2006, SI 2006/1003, an appellant can apply for an interim order to suspend enforcement of the removal decision or return temporarily to the U.K. (Regs. 21AA (4) and 29AA). As the U.K. processes its separation from the European Union over the next two years, and the case for special rules around European Economic Area immigration becomes weaker, the issue of deporting individuals first and appealing later will likely become a subject of legal challenge again.

Brandon Lewis, the U.K.’s Government Immigration Minister, expressed the government’s disappointment with the judgment of the Supreme Court, adding that the government is “…carefully considering the implications.” (Id.) The true implications of this decision are, as yet, uncertain. Sonali Naik and Bijan Hoshi, Counsel for Bail for Immigration Detainees, contend that this ruling raises “very significant questions as to the future viability of the §94B certification.” (Supreme Court Rules ‘Deport First, Appeal Later’ System Unlawful, Garden Court Chambers, June 14, 2017).   

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