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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1413
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NICHOLAS PADFIELD QC SITTING AS A DEPUTY HIGH COURT JUDGE
Claim No CO/4355/2017
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SINGH
| THE QUEEN ON THE APPLICATION OF
| - and -
| THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Lisa Giovannetti QC (instructed by Government Legal Department) for the Respondent
Hearing date: 11 June 2018
Crown Copyright ©
Lord Justice Hickinbottom:
The Legislative Background
i) A proposed deportation engages, and gives rise to a potential breach of, article 8.
ii) As an inherent aspect of the article itself, a proposed deportee is entitled to an effective procedure for appealing against a threatened breach of article 8.
iii) Oral evidence from the appellant will often be necessary for a proper article 8 assessment; and an out-of-country appellant faces considerable practical difficulties in giving such evidence (e.g.) by video-link, as well as in obtaining supporting professional evidence and effectively obtaining, instructing and taking advice from legal representatives.
iv) Given the potential interference with the proposed deportee's article 8 rights, once the issue is in play, the burden is upon the Secretary of State to establish that that interference is justified and proportionate.
"If you have reasons why you should not be expected to appeal only after you have left the UK, you must inform us within 20 working days of the date of service given at the end of this letter [i.e. 28 October 2015]".
The Current Legal Proceedings
"Continuing failure & refusal of SSHD to (1) return the [Applicant] to the UK to pursue an in-country appeal, (2) accept the decisions to certify of 25/4/16 & 10/2/17 as unlawful (3) detention 22/3/16 to 17/3/16 & 31/1/17 to 2/3/17…".
The Applications: Discussion and Conclusion
i) The court must first identify and assess the seriousness and significance of the relevant failure to comply with any rule, practice direction or court order, taking into account the materiality of the breach including its effect on the conduct of the litigation and of litigation generally. If the breach is neither serious nor significant, then the court will likely grant relief.
ii) If it is serious and/or significant, then the court will consider why the default occurred. If good reason for the breach is shown, then again relief will usually be granted.
iii) Finally, the court will evaluate all the circumstances of the case, so as to enable it to deal justly with the application, giving particular (although not paramount) importance to the factors in CPR rule 3.9(1), i.e. the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.
"(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.
"(1) In the light of [Kiarie & Byndloss], the First-tier Tribunal should adopt a step-by-step approach, in order to determine whether an appeal certified under section 94B of the Nationality, Immigration and Asylum Act 2002 can be determined without the appellant being physically present in the UK.
(2) The First-tier Tribunal should address the following questions:
1. Has the appellant's removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from [UK] lawyers?
2. If not, is the appellant's absence from the [UK] likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?
3. If not, is it necessary to hear live evidence from the appellant?
4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?
(3) The First-tier Tribunal should not lightly come to the conclusion that none of the issues covered by the first and second questions prevents the fair hearing of the appeal.
(4) Even if the first and second questions are answered in the negative, the need for live evidence from the appellant is likely to be present. A possible exception might be where the respondent's case is that, even taking a foreign offender appellant's case at its highest, as regards family relationships, remorse and risk of re-offending, the public interest is still such as to make deportation a proportionate interference with the Article 8 rights of all concerned.
(5) If the First-tier Tribunal concludes that the appeal cannot be lawfully determined unless the appellant is physically present in the [UK], it should give a direction to that effect and adjourn the proceedings."
i) For present purposes, I accept that, as a result of Kiarie & Byndloss, the approach of the Deputy Judge below to the lawfulness of the section 94B certificate dated 10 February 2017 was wrong; and I accept that that certificate was at least arguably unlawful.
ii) Furthermore, as I said in Nixon & Tracey at [75 (iii)], the fact that a person has been deprived of an in-country appeal to which he may be entitled under statute is a factor telling strongly in favour of ordering his return.
iii) In addition, as a matter of fact, the Applicant and his family have been living apart as a result of his removal for over 15 months, and will continue to do so until he successfully appeals the deportation removal on human rights grounds or the court orders his return. The infringement of the relevant article 8 rights continues.
iv) However, as Ms Giovannetti submitted, we are here concerned with more than the lawfulness of the original decision. "Foreign criminals" who are deported under the automatic deportation provisions of Section 32 of the UK Borders Act 2007 (see paragraph 6 above) have, by definition, committed and been convicted of a serious criminal offence in the UK. At  of Kiarie & Byndloss, Lord Wilson suggested that the only public interest in removing a criminal before his appeal against the refusal of his article 8 claim is to remove the risk of reoffending – and Mr Gill submitted that in this case the risk of the Applicant reoffending was vanishingly small. The National Probation Service report dated 3 February 2017 assessed the Applicant as posing a "a medium risk of harm, however his risk of reoffending is low". However, in my view, the risk of reoffending is not the only public interest in removal in these circumstances: for example, it also removes the risk of absconding. Furthermore, Lord Wilson was only talking in terms of whether an individual should be removed prior to his appeal. In this case, the Applicant was removed about 15 months ago; and, in assessing (amongst other things) the best interests of the children, we have to take into account (e.g.) the possibility of the trauma that might be caused if the Applicant were to be returned to the UK and shortly thereafter removed again.
v) Although I am proceeding on the basis that the removal of the Applicant was or may have been unlawful, he was nevertheless deported on the basis of a deportation order that was at least apparently lawful. Mr Gill submits that, as the Applicant was removed after the argument had been heard by the Supreme Court but before their judgments had been delivered, the Secretary of State well-knew there were serious questions about the legality of his approach to section 94B certifications and about the reliability of the Court of Appeal decision. He criticised the Secretary of State's conduct in this regard. However, the Secretary of State had certified the Applicant's human rights claim in accordance with the authorities as they then stood; and, on the basis of full and up-to-date evidence, only a few days before the Applicant's removal, Irwin LJ had refused a stay on his removal. As at the date of the removal, there were no outstanding appeals or other proceedings seeking to challenge the certification or the removal itself.
vi) Indeed, as Ms Giovannetti emphasised, despite the request in the 28 October 2015 decision letter requiring the Applicant promptly to identify any reason why he should not be expected to appeal out-of-country (see paragraph 18 above), the Applicant did not suggest that he would have any difficulties in appealing from abroad then, or in the original judicial review (which was brought on different grounds, e.g. the article 8 rights of the unborn child). Although the Applicant and his legal team were aware that Kiarie & Byndloss had been heard in the Supreme Court, no application was made in the original judicial review (even before Irwin LJ, shortly before the removal directions were due to be implemented) that the claim/appeal should be stayed pending the outcome of that case in the Supreme Court. Indeed, no claim on the basis of any deficiency in an out-of-country appeal was made until some weeks after the Supreme Court judgments in Kiarie & Byndloss had been handed down. In my view, this at the very least substantially undermines Mr Gill's submission that the Secretary of State's conduct in removing the Applicant as and when she did was in any way reprehensible.
vii) As a factor in the balancing exercise, the article 8 rights, whilst substantial, are not the strongest. I fully appreciate that the rights of two children who are British citizens are involved – and their rights are a primary consideration. However, the Applicant married his wife after he committed the serious offence that led to the deportation order. They had been in a relationship for only six months. He was deported about two years after the marriage, of which he had spent about 12 months in prison or detention. He has in fact had little contact with either of his children. The family have lived apart since his deportation in February 2017, having during that time met only relatively briefly in Dubai. Although I appreciate that the family has been split because of the removal which the Applicant contends is unlawful, as Lord Wilson indicated in Kiarie & Byndloss at , actual separation unfortunately but inevitably undermines the strength of the ties upon which article 8 rights depend.
viii) Furthermore, although of course the family have been split, the evidence of the adverse impact on the Applicant, his wife and children does not suggest it has been of the gravest kind. In a witness statement dated 12 September 2017, i.e. when she was pregnant with her second child, SH said she was finding it difficult to cope, and she feared that she would not be able to carry on working after the child was born. She was concerned about the practicalities of living in a fourth floor flat with two young children. Communications are not easy, because of the time difference (five hours), and the limited internet access in Pakistan. There is no more recent statement from her, although the Applicant's solicitor (Hamza Malik) in a statement dated 8 March 2018, says that SH is reluctant to take the children to Pakistan at all because of security issues and the fact that the Applicant has no proper residential facilities there. However, it is clear from the statement of Mr Malik (paragraph 5 and following) that the Applicant does see his wife and children in Dubai, to where they all travel, from time-to-time. I accept that that is not the same as living in a household together on a permanent basis; but the statement refers to the "frequent and at times lengthy travels", which suggests that, despite the expense and effort involved, these visits enable the family to make meaningful contact with each other whilst they wait for a decision on the Applicant's appeal.
ix) Mr Malik says (at paragraph 12 of his statement) that he would usually expect to instruct expert social workers in relation to an article 8 case such as this; and Mr Gill expressed concern that it will not be possible to prepare a social services report on how the family with the Applicant function. However, I do not consider that the submission that the Applicant is required in the UK so that an independent social worker report can be prepared on the basis of observations of the relationships working in practice. Even if he were to be returned now, the relationship and any family life they would enjoy are likely to be slow to form or reform, and would be almost entirely new.
x) Nor is the evidence of difficulties obtaining instructions etc suggestive of insuperable difficulties, as opposed to mere inconvenience.
xi) I do not consider that the fact that, following Kiarie & Byndloss, the Secretary of State directed that section 94B certificates should not be issued for the time being to be of any assistance to the Applicant. In the light of the judgments in that case, it was understandable that the Secretary of State introduced such a policy until the efficacy of new systems for out-of-country appeals had been tried and tested.
xii) Importantly, the interim relief sought by the Applicant is in fact the final relief he seeks by way of the judicial review, i.e. his immediate return to the UK. We are not here concerned directly with the difficulties that the Applicant may have in contesting an out-of-country appeal. We are concerned with the difficulties he will have in prosecuting the claim for judicial review that will determine whether an out-of-country appeal will be sufficient protection for the relevant article 8 rights. The challenges with regard to the Applicant being in Pakistan are therefore somewhat different, and less acute.
xiii) Furthermore, that claim will run in parallel with the out-of-country appeal which the Appellant is currently pursuing. There is a case management conference in the First-tier Tribunal in that appeal fixed for today. Mr Gill says that the appeal gives rise to the difficult issues concerning data protection and privacy to which I have already referred. However, in a letter from the GLD dated 7 June 2018, the Secretary of State indicates that the First-tier Tribunal are currently hearing both mock appeals and substantive appeals using video links, with some success. A determination of the First-tier Tribunal has been disclosed in redacted form, in which the tribunal, applying the guidance in AJ (Nigeria), have found that the facilities for a link with Nigeria were sufficient to ensure that the appeal was procedurally fair and sufficient to protect the article 8 rights of the applicant in that case. Two mock hearings have been held using facilities in Pakistan, and lead cases involving links with Pakistan are currently being heard. One was heard two weeks ago, and another is due to be heard this week. Of course, whether a video link is sufficient to give an appellant's article 8 rights adequate protection will necessarily require a fact-specific assessment; but these examples – I accept that they are no more than examples – suggest that video link may be sufficient in at least some cases and that insuperable issues concerning data protection and privacy do not arise in every case.
xiv) Mr Gill accepted that the First-tier Tribunal not only has the jurisdiction to consider whether the proceedings before it are compliant with the procedural obligations of article 8, but the tribunal has an obligation to ensure compliance; and he accepted that the tribunal is the optimal forum for determining such an issue. I firmly agree. The tribunal has advantages over this court – and, indeed, the Administrative Court – in terms of constitution, experience and facilities; and, in these circumstances, the specialist tribunal will be able to look at the details required to ensure an effective appeal (see Kiarie & Byndloss at  per Lord Carnwath, and R (W2 and IA) v Secretary of State for the Home Department  EWCA Civ 2146 at - per Beatson LJ in the parallel context of the Special Immigration Appeals Commission). If the tribunal in this case, at any time, considers that the Applicant's appeal cannot be dealt with effectively out-of-country – or cannot be dealt with effectively out-of-country within a reasonable time – then it can and must say so. The guidance in AJ (Nigeria) suggests that, in these circumstances, a direction to that effect should be given by the tribunal, and the appeal should be adjourned, presumably to allow the Secretary of State to consider his position and for the Applicant to make such application to the High Court as he considers appropriate and necessary. In circumstances in which the tribunal is due to hold a case management conference in the Applicant's appeal today, that all appears to me to be a powerful reason for not granting now the interim relief the Applicant seeks.
Lord Justice Singh: