The Supreme Court ruling in the cases of R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 focus on the issue of out-of-country appeals. Whilst both appellants were liable for deportation due to their criminal activity in the UK, it was held that the certification of human rights claim of the two appellants were based on a ‘legal misdirection’ as the Secretary of State had failed to recognise the potential interference with their Article 8 ECHR rights if they were to be deported.
Background of Kiarie and Byndloss
Mr Kiarie is a Kenyan national who came to the UK with his family aged 3 and had been settled in the UK since 2004. Mr Byndloss, of Jamaican nationality, had been settled in the UK since the age of 21 and had a wife and 8 children here. Mr Kiarie and Mr Byndloss (“the appellants”) both received deportation orders because of their convictions for drug offences in the UK. The Secretary of State rejected claims that deporting the appellants would breach their right to respect to private and family life under Article 8 ECHR. The Secretary of State exercised her powers of certification which meant that the appellants were given an out-of-country right of appeal. This is because it is against public good to allow foreign criminals to remain in the UK; however the certification of human rights claim should only occur in cases where there is no risk of serious and irreversible harm to the appellant.
Certification of Human Rights Claim
The Secretary of State has certification powers under section 94 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The Secretary of State may certify a protection claim or human rights claim as clearly unfounded and the burden falls on the Secretary of State to establish the potential interference of the certification of human rights claim on the appellants Article 8 ECHR rights and that the deportation strikes a fair balance between those Article 8 ECHR rights and the interests of the community.
Before an appeal can be considered, the appellant must prove some or all of the following compelling circumstances:
- the depth of the appellant’s integration in UK society in terms of family, employment and otherwise;
- the quality of his relationship with any child, partner or other family member in the UK;
- the extent to which any relationship with family members might be reasonably sustained after the deportation;
- the impact of his deportation on the need to safeguard and promote the welfare of any child in the UK;
- the likely strength of obstacles to his integration in the society of the country of nationality; and
- any significant risk of re-offending in the UK.
Judgment of Kiarie and Byndloss
There are procedural and substantive rights of the appellant that were considered. It was determined that the Secretary of State had not properly considered the appellants Article 8 ECHR rights when certifying their human rights claims. She claimed that the removal of the appellants pending their appeals would be “proportionate in all circumstances”, yet if the appellants were to be deported, it is obvious that there would be very significant obstacles as to the reintegration in their national countries and other compelling factors which are mentioned above.
In regard to the appellants procedural rights, the Secretary of State said that if necessary, the appellants could give evidence during their appeals via video link to the court and provide a written statement if they were to make their appeals out of country. However, the cost and arrangement of the projection and audio equipment for the hearing would fall to the appellant, which can be seen as disproportionate.
Taking into account these considerations, the Court allowed the appellant’s appeals and the certification of human rights claim were quashed.
The full judgement can be found here: R (Kiarie and Byndloss) v SSHD [2017] UKSC 42 | LEXVISA Immigration Solicitors London
Using Legal Representation to Appeal a Certification of Human Rights Claim
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit an out of country appeal a deportation order.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successful Appeals against a Certification of Human Rights Claim
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