Further Limitations on the Appeal Rights of Deportees
The piecemeal implementation of the Immigration Act 2014 continues. Recent changes to appeal rights coupled with certification provisions restrict the rights of immigrants to those which are absolutely required by the international obligations of the UK and so cannot be avoided. The new appeals regime will be discussed in detail in a future article. This article concentrates on the power to certify the human rights claims of persons being deported from the UK so that they may only appeal against the decision once they have already been deported.
Restricted Appeal Rights
Since 6 April 2015 the right to appeal against a decision refusing leave to enter or remain in the UK has been limited to three categories of persons:
- Those who have made a protection claim which has been refused (that is an asylum claim or humanitarian protection claim);
- Those who have made a human rights claim which has been refused; and
- Those who protection status is being revoked
These are the only appeal rights which the United Kingdom must absolutely guarantee to meet its international law obligations.
There is therefore no longer any right to appeal against a decision to deport a person from the UK whether in-country or out-of-country. The only way for such a person to gain a right of appeal is to make a protection or human rights claim. If such a claim is refused, it would ordinarily carry an in-country right of appeal if the person is in the UK. However, the Secretary of State may certify the human rights claims of deportees so that they may only appeal once they have left the UK.
The Power to Certify
The power to certify is contained in s94B of the Nationality, Asylum and Immigration Act 2002 which provides that where the Secretary of State deems that deportation is conducive to the public good or the court recommends deportation following conviction, the Secretary of State can certify the claim if she considers that even though the person has not yet begun or completed the appeals process, the removal of the deportee pending the outcome of the appeal would not be unlawful under section 6 of the Human Rights Act 1998. s6 HRA 1998 states that a public authority must not act in a way which is contrary to the European Convention of Human Rights (ECHR). The grounds upon which the Secretary of State may certify a claim include, in particular, that the deportee would not face a real risk of serious irreversible harm if removed to the country or territory to which it is proposed.
The power to certify deportation appeals under s94B was introduced in July 2014 in amongst a host of other immigration law changes but was initially only applied to limited categories of cases to ‘test’ it out. The initial testing phase involved cases where the individual was aged 18 or over at the time of the deportation decision and did not have a parental relationship with a dependent child or children as certification was not considered appropriate in the initial test phase for cases where the deportee was actively involved in a child’s life. The testing phase is now over and so the certification provisions apply equally to all those facing deportation, including those deportees with children.
The test which the Secretary of State is required to apply is that the person’s human rights would not be violated by removal before he has exercised or exhausted his appeal rights. This means that a claim can be certified before a person is able to exercise their right of appeal and also during the course of an existing ongoing appeal. The grounds on which the Secretary of State may certify a claim are that there is not a real risk of serious irreversible harm occurring as a result of the person being deported.
Home Office Guidance – what is real risk of serious irreversible harm?
Guidance for Home Office caseworkers as to certification of non-EEA human rights claims under s94B is provided in the document ‘Section 94B certification guidance for Non-European Economic Area deportation cases’ issued in January 2015. The standard of real risk is said to be a low threshold test, which is the same as the low level test which an applicant has to meet to show a violation of Article 3 ECHR. But serious irreversible harm means that a minimum level of severity must be reached which has a permanent or long lasting effect. The Guidance gives examples of cases in which it considers the test will be met and those in which it will not.
cases where a person will be separated from their child or partner for several months while he appeals against a human rights decision, cases where there is a family court case in progress or cases where a child or partner is undergoing treatment for a temporary or chronic medical condition that is under control and can be satisfactorily managed through medication or other treatment and does not require the person liable to deportation to act as a full time carer will not meet the test according to Home Office Guidance. In the Secretary of State’s opinion examples of cases which would meet the test are;
where the person has a genuine and subsisting parental relationship with a child who is seriously ill, requires full-time care, and there is no one else who can provide that care or the person has a genuine and subsisting long-term relationship with a partner who is seriously ill and requires full-time care because they are unable to care for themselves, and there is no one else who can provide that care.
The Secretary of State’s opinion of what constitutes serious irreversible harm is therefore extremely limited and unlikely to be met in the majority of cases. We can therefore expect almost all deportation cases to be certified under s94B. The onus is on the Secretary of State to demonstrate that there is not a real risk of serious irreversible harm but if a person claims that there would be serious irreversible harm in deporting them before s/he has had the chance to begin or conclude his appeal, the onus is on that person to substantiate his claim with documentary evidence. It is important therefore to respond appropriately to the initial letter sent out by the Home Office before a decision is taken to deport the person in which they request information about why the person should not be deported. Any information and evidence against certification of the claim must also be presented in the response.
In presenting reasons against certification, it is important to remember that the power to certify is discretionary and so the Secretary of State must objectively exercise her discretion fairly and proportionately. In determining whether she has done this, consider section 1.8 of the Guidance which confirms the application of s55 Border Citizenship and Immigration Act 2009, requiring the best interests of children affected by the decision to be a primary consideration in deportation cases, including the decision on whether to certify the human rights claim. Section 3.4 of the Guidance also confirms that where Article 8 ECHR rights are involved, the impact of certification not only on the deportee but also on their partner and child(ren) must be considered.
Whilst the Secretary of State has attempted to severely limit the types of cases which may successfully resist certification, each case must be considered on its own merits and in light of its own facts. It is therefore open to deportees to present detailed and cogent original evidence (not copies) to support their claim that serious and irreversible harm will occur if they are removed whilst they pursue an appeal against the substantive decision on their human rights claim.
If a decision to certify a claim is issued by the Secretary of State, it may be challenged in Judicial Review proceedings as is the case with any other non-appealable decision which involves the decision of a public authority. Such a challenge will essentially involve determination of whether the Secretary of State has exercised her discretionary power properly in light of the facts and evidence and ultimately, whether the removal of the deportee will cause serious irreversible harm to him and/or their family members. As well as causing harm to family relationships and contravening the best interests of the child, the deportation of a person from the United Kingdom whilst they appeal will have the effect of removing them from the appeal proceedings so that they are not personally able to participate in them, for example to give evidence, and so may also contravene Articles 6 and 8 ECHR (the right to a fair trial and the right to respect for private and family life.)
The Secretary of State is likely to over-zealously apply the certification provisions in s94B in her aim to remove foreign criminals from the United Kingdom irrespective of whether they are ultimately successful in winning the right to remain here before an independent Court of law. It is important to try and challenge certification of the claim under s94B rather than simply accepting the out of country appeal right. This is because separation of the deportee from his family for a period of several months whilst his appeal is determined may undermine the arguments s/he wants to present to the Tribunal in the full appeal as to the effect a permanent removal would have on his/her family. For example, the Home Office may try to persuade the Judge that if the family has managed to cope with living in separate countries for a few months, they can continue to do so without it damaging the family relationships. It is therefore important to try to challenge certifications under s94B not only to prevent the deportee’s removal from the United Kingdom during the appeals process but also to preserve his/her final position before the Immigration Tribunal determining their substantive rights at appeal.
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