Nationality, Immigration and Asylum Act 2002, s. 94B: Access to lawyers
(1) In the light of Kiarie and Byndloss [2017] UKSC 42, the first question to be answered by the First-tier Tribunal in an appeal involving a claim that has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 is whether the appellant’s removal from the United Kingdom pursuant to the certificate has deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers (AJ (s.94B: Kiarie and Byndloss questions) [2018] UKUT 115 (IAC)).
(2) The task for the First-tier Tribunal in answering that question is fact and context-specific. The Tribunal must, in particular, determine whether the facts demonstrate the kind of inconvenience or difficulty that is inherent in the appellant being outside the United Kingdom; or whether there has been, or will be, an actual impediment in the taking of instructions and receiving of advice.
(3) There may be circumstances where, at some point before the hearing is due to take place, it will be evident that the appellant’s legal adviser is simply not in a position to mount an effective case, owing to the appellant being outside the United Kingdom. In such circumstances, it would manifestly be wrong to undertake the hearing.
(4) The first question does not, however, necessarily have to be answered by the Tribunal before the start of any hearing of the appeal. Where the position is not clear cut, it will be a matter for the Tribunal to decide whether it addresses the first question after the hearing has taken place. Matters may arise during that hearing which show the question falls to be answered in favour of the appellant. In other cases, the answer may fall to be answered in the negative, once the hearing has occurred. For example, the oral evidence may disclose that an issue upon which it might have been thought the legal adviser was without relevant instructions is not, in fact, relevant to the outcome; or that what might otherwise have been thought to have been a ‘gap’ in the adviser’s instructions is not of such a nature.
Nationality, Immigration and Asylum Act 2002, s. 117C(4) and s. 117C(6)
(5) It is unnecessary to ‘read down’ s. 117C(4) in order to avoid a breach of Article 14 of the ECHR because, inter alia, the case-specific factors said to support any discrimination are relevant to the s. 117C(6) exercise, which requires a more nuanced approach and a collective examination of all relevant matters.
(6) Adverse credibility findings and the fact that an individual was not born in the United Kingdom do not obviate the requirement to apply the key principle in Maslov v Austria [2009] INLR 47, as explained in CI (Nigeria) v SSHD [2019] EWCA Civ 2027
[2021] UKUT 95 (IAC)
Bailii
England and Wales
Updated: 08 August 2021; Ref: scu.666423