R (on the application of Kiarie) v SSHD [2017] UKSC 42

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This case is an important ruling by the Supreme Court in relation to out-of-country appeals.

The case involved a Kenyan national who arrived in the UK aged three, and a Jamaican national who arrived in the UK aged 21 and has a wife and child living in the UK. Both were convicted of serious drug related offences and the Home Office issued deportation orders and certified their human rights claims. This meant that the Home Office had determined that their claims were ‘clearly unfounded’ and they could only appeal the decision in Kenya and Jamaica respectively.

The appellants commenced judicial review proceedings, arguing that the certifications were unlawful. The case was not an exploration of the criteria by which a tribunal should determine an appeal on human rights grounds to a deportation order[1] but the Supreme Court made several important points in relation to appealing outside the UK and the issues that can arise as a result of this.

The Court recognised that while it may be difficult for the appellants to successfully appeal the decisions, the important question was whether certifying their human rights cases was lawful.  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.

Relevant points in the judgment:

  • Even if an individual managed to secure legal representation when appealing from abroad, the individual and lawyer would face formidable difficulties in the preparation and presentation of the appeal (paragraph 60)
  • With reference to evidence submitted by Bail for Immigration Detainees, there are practical difficulties to obtaining legal aid or legal representation in these circumstances, and it is uncertain what assistance would be available to an appellant appealing from abroad without resources of their own (paragraph 96)
  • In cases where evidence from the appellant will be important to his or her case, the court had grave doubts as to whether this evidence is effective without being able to present such evidence orally at the tribunal (paragraph 61)
  • Allowing the appellant to give oral evidence in the tribunal after leaving the country through an issue of summons to attend was legally difficult and impractical (paragraph 65)
  • The argument around video/skype evidence had more merit, although there were still difficulties with video evidence and live evidence continues to be best evidence (paragraphs 66-67)
  • In practical and realistic terms, the availability of technology to allow video evidence in the tribunal and the for the appellant to access such technology in their country is questionable (paragraphs 69-73)
  • The financial and logistical barriers to giving evidence from abroad by video/Skype are almost insurmountable (paragraph 76)
  • It would be wrong in principle for the Home Office, as the opposing party to the appeal, to be allowed to dictate the conduct of the appellant’s case or the evidence on which he chooses to rely (paragraph 102)

This case highlights the significant difficulties that those appealing from abroad face in the context of immigration decisions. This is of particular importance due to the extension of out-of-country appeals to human rights applications – from December 2016 all those who have made human rights applications will only be granted a right of appeal in the UK if they would face a real risk of serious irreversible harm if removed before their appeal took place. It will be an important decision for those appealing refusals of human rights decisions.

The full judgment is available at: https://www.supremecourt.uk/cases/docs/uksc-2016-0009-judgment.pdf

[1] This had been previously considered by the Supreme Court in Ali –v- SSHD 2016 UKSC 60