Deportation Order Appeal: ‘Deport First, Appeal Later’ Policy Deemed Unlawful

The Secretary of State has discretionary certification powers to deport a migrant under s 94, Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Yet, in a possible policy altering decision, the Supreme Court last week ruled in the case of R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 that the government’s ‘deport first, appeal later’ rule was unlawful. This was part of the Conservative’s previous manifesto pledge which denies the rights of foreign criminals to appeal against a deportation order from within the UK which has been constantly perceived to be unfair and unlawful. Therefore this decision could be seen as the turning point in relation to out of country appeals.

The ‘Deport First, Appeal Later’ Policy

It has been reported that since July 2014, a mere 72 individuals have sought an out of country appeal from the 1,175 cases of foreign criminals who have been removed from the UK under the ‘deport first, appeal later’ policy. It is to be noted that not one of those 72 appeals succeeded which clearly conveys the difficulties of succeeding with an out of country appeal. These difficulties are largely due to the significant financial and legal barriers that out of country appeals bring about to the Applicant.

However, newly appointed Minister of State for Immigration, Brandon Lewis has emphasised that;

“the government has consistently taken the view that foreign criminals have no place in the UK, and we will continue to take action to remove them”.

Nonetheless, despite the Conservatives determination to reduce the amount of foreign nationals settling in the UK whether it be by making visa requirements more stringent or looking for any excuse to remove foreign nationals who have been settled in the UK for many years, the decision in Kiarie and Byndloss looks to have given more fairness to those who face deportation.

The Background and Facts of the Kiarie and Byndloss Case

The Supreme Court has recognised the impossibilities of making a successful out of country appeal in recent decision of Kiarie and Byndloss.  The decision concerns the cases of two foreign criminals who were each served with a deportation order and removal from the UK as a result of their crimes. Mr Kiarie is a Kenyan national and has been settled in the UK since 2004. After being convicted of serious drugs offences in 2014, the Secretary of State took the decision to deport him.

Similarly, the Secretary of State decided to deport Mr Byndloss, of Jamaican nationality, in 2014 after his conviction for drug offences, although he had been settled in the UK since the age of 21 and had a wife and children here.

The Significance of the Kiarie and Byndloss Decision on the ‘Deport First, Appeal Later’ Policy

One of the main focuses of the decision on Kiarie and Byndloss case was with regards to the fairness and efficiency of out of country appeals. The case of Kiarie highlights the significant monetary costs of making an out of country appeal. Mr Kiarie’s legal representatives estimated the cost of video link facilities in the Applicant’s national country to be around £1,680 and would receive no financial support or assistance from the Home Office.

The Supreme Court gives much weight to oral evidence which is submitted during appeals. This has been challenged in the decision by the fact that there are no facilities which allow individuals to return to the UK in order to give evidence, and video links can prove costly, to the detriment of the Applicant, as well as unreliable in terms of connection. Thus, the Supreme Court, it appears, to have finally accepted the significant struggles of out of country appeals as highlighted in the cases of Kiarie and Byndloss.

What Does the Case Mean for Deportation Appeals?

The significance of the Kiarie and Byndloss case is that going forward, there may be more fairness for those individuals who need to challenge a deportation order if the Secretary of State recognises the struggles and impossibilities for foreign nationals who are facing deportation. It is important to obtain legal representation, such as our team of specialist immigration solicitors in order to make a successful appeal against a deportation order.

The Supreme Court judgment can be accessed here: R (Kiarie and Byndloss) v SSHD [2017] UKSC 42 LEXVISA Immigration Solicitors London.

Using Legal Representation to Appeal a Deportation Order

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 Deportation Orders

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.

Our offices are located in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

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.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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