Home Office ‘deport first, appeal later’ policy ruled unlawful

Today the Supreme Court ruled that the Home Office policy of ‘deport first, appeal later’ was unlawful.

This is of particular importance in light of the recent extension of out-of-country appeals to all human rights applications.

Under the Immigration Bill 2016, the Secretary of State gained the power to certify the claim of someone appealing on human rights grounds against an immigration decision so that they can only appeal from outside of the UK, unless to do so would breach that person’s human rights. This extended to all individuals the provisions that are already in force for the deportation cases of ex-foreign national offenders and will affect all those bringing human rights appeals under Article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life. Individuals would be required to bring any appeal against a wrong decision from outside the UK, causing the separation of families, disruption to an established life in the UK and significant practical difficulties in appealing from abroad.

During the passage of the Bill, Coram Children’s Legal Centre repeatedly raised concerns that the provisions risked children being deprived of their parent/s, or forced to leave the country they grew up in, before any judicial scrutiny of the Home Office decision and without adequate consideration of the best interests of the child. This provision could see more cases involving unaccompanied children or young people over 18 who claimed asylum alone as children and/or who have lived here for many years and have built their lives in the UK, being certified for an out-of-country appeal.

There are an estimated 120,000 irregular migrant children living in the UK, over half of whom were born here. Many have spent their formative years in the UK – this is the only ‘home’ they know and will have no lasting links or support networks in their parents’ country of origin. As research by Coram Children’s Legal Centre has highlighted, the environment for irregular or undocumented migrant children in the UK, and their ability to have their legal claims to remain considered fairly, has already deteriorated considerably.

The Supreme Court held that the Government had failed to establish that deportation in advance of appeal strikes a fair balance between the rights of the individuals and the interests of the community and was therefore unlawful. Coram Children’s Legal Centre welcomes this judgment and urges the Government to review this policy and insure that all individuals have an opportunity for a fair hearing in immigration proceedings.

Read the Migrant Children’s Project case note here.