QR (Pakistan), R (on the application of) v the Secretary of State for the Home Department [2018] EWCA Civ 1413 (“QR (Pakistan)”) is another case which has fallen victim to the controversial deport first appeal later policy in the aftermath of the Kiarie and Byndloss judgement. The Supreme Court held in Kiarie and Byndloss that out of country appeals can be unlawful, therefore giving rise to a wave of Judicial Review challenges.
Deport First Appeal Later Case Study: Background to QR (Pakistan)
The Appellant is a Pakistani national who is married to a British citizen of whom he has two children with and they are also British citizens. The Appellant was served with a Notice of Deportation on 25 April 2016 which he challenged twice on Article 8 European Convention on Human Rights (“ECHR”) grounds. His Article 8 claims were refused and certified under section 94B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The Secretary of State may certify a protection claim or human rights claim if he considers whether removing a person from the UK before they have had a chance to appeal would breach their ECHR rights. Appeals against protection or human rights claims need to be perused out of country; however it is possible to challenge the certification itself by way of Judicial Review from within the UK.
Deport First Appeal Later Case Study: Facts of QR (Pakistan)
The Appellant used Judicial Review proceedings in the Upper Tribunal on 9 May 2016 challenging the certification which was refused so he subsequently lodged an appeal at the Court of Appeal on 11 October 2016. The Appellant was detained on 31 January 2017 and on 10 February 2017 the Secretary of State issued a new decision to refuse the Appellant’s claim based on new facts and to certify the claim under section 94B of the 2002 Act. The Appellant then made an application for an order restraining removal to the Court of Appeal which was refused on 24 February 2017. The Appellant was deported back to Pakistan on 28 February 2017.
On 14 June 2017 the Supreme Court handed down the judgements of Kiarie and Byndloss. The Appellant then initiated fresh Judicial Review proceedings as a result of the judgements. However, the High Court refused the Judicial Review proceedings as the Appellant was out of time; being 4 months after the expiry of the 3 month period of which claims can be issued. Nicholas Padfield QC considered the Appellant’s application on 8 December 2017 and refused the claim stating it was “plainly distinguishable” from Kiarie and Byndloss and that the Appellant had produced no sufficient evidence to support that an out of country appeal would put him at a disadvantage.
Deport First Appeal Later Case Study: Outcome of QR (Pakistan)
The Appellant appealed this decision on 15 December 2017. The Appellant was subsequently given an extension of time due to the fact that the Appellant’s solicitors had to take instructions from abroad. The court did not consider it appropriate or proportionate to order the return of a deported applicant to pursue his in-country right of appeal. His appeal against the refusal to proceed with the judicial review was allowed, but the court refused his application for interim relief which would have enabled him to return to the UK to pursue an in-country appeal. Even if the Administrative Court finds the certification unlawful, this does not mean that the Appellant will be allowed to return to the UK to pursue his appeal.
What is the impact of the Kiarie and Byndloss judgement for Deport First Appeal Later appeals?
The judgements of Kiarie and Byndloss held that out of country appeals may be unlawful when Appellants cannot effectively make an out of country appeal due to the difficulties of finding and instructing legal representatives, giving evidence at the hearing and the possibility of providing expert evidence.
It is important to seek legal representation before appealing a decision or beginning judicial Review proceedings. Judicial Review can only start once all other appeal rights have been exhausted. Speak to our specialist immigration team and book a consultation to receive bespoke and expert immigration advice.
Access the full judgement here: QR (Pakistan) R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413 LEXVISA Solicitors and Barristers
Using Legal Representation to appeal Deport First Appeal Later decisions
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 Deport First Appeal Later decision.
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.
Successfully appeal Deport First Appeal Later decisions
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Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
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