Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department: SC 14 Jun 2017

The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and the certificates quashed.
The jurisprudence of the ECHR seems to be clear that
(a) the facility for challenge has to be effective;
(b) an effective facility for challenge will not automatically require suspension of the removal order; and
(c) whether its suspension is required in order to make the facility effective will depend on the circumstances.
Any foreign criminal appealing from a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed . . He needs to be in a position to assemble and present powerful evidence. I must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters:
(a) the depth of the appellant’s integration in UK society in terms of family, employment and otherwise;
(b) the quality of his relationship with any child, partner or other family member in the UK;
(c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise;
(d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the UK;
(e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case,
(f) any significant risk of his re-offending in the UK, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.
‘this court is invested with responsibility for deciding whether two foreign criminals who, by reference to article 8, each have arguable appeals against the deportation orders made against them and who have rights thereunder for their appeals to be effective, would suffer a breach of those rights if they were to be deported in advance of the hearing of the appeals. I conclude that, for their appeals to be effective, they would need at least to be afforded the opportunity to give live evidence. They would almost certainly not be able to do so in person. The question is: as a second best, would they be able to do so on screen? The evidence of the Home Secretary is that in such appeals applications to give evidence from abroad are very rare. Why? Is it because an appellant has no interest in giving oral evidence in support of his appeal? I think not. It is because the financial and logistical barriers to his giving evidence on screen are almost insurmountable.’
Lady Hale, Deputy President, Lord Wilson, Lord Carnwath, Lord Hodge, Lord Toulson
UKSC 2016/0011, [2017] UKSC 42, [2017] HRLR 7, [2017] 4 All ER 811, [2017] 1 WLR 2380, [2017] WLR(D) 400
Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, SC 15/2/17am video, SC 15/2/17pm video, SC 16/2/17am video, SC 16/2/17pm video, WLRD
Borders, Citizenship and Immigration Act 2009 55(1), European Convention on Human Rights 8
England and Wales
Appeal fromKiarie, Regina (on The Application of) v The Secretary of State for The Home Department CA 13-Oct-2015
The claimants challenged the rules disallowing their appeal against a decision for their expulsion as unconducive to the public good, unless made ‘out of country’, saying that this infringed their human rights to private and family life.
Held: . .
CitedMamatkulov And Askarov v Turkey ECHR 4-Feb-2005
Grand Chamber – while there may have been reasons for doubting whether the applicants would receive a fair trial, there was not sufficient information to show that any possible irregularities in the trial were liable to constitute a flagrant denial . .
CitedManchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
CitedLord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
CitedAl-Nashif v Bulgaria ECHR 20-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objections dismissed (non-exhaustion, abuse of right of petition); Violation of Art. 5-4; Violation of Art. 8; Violation of Art. 13; Not necessary to . .
CitedGiri, Regina (on The Application of) v Secretary of State for The Home Department CA 28-Jul-2015
Appeal against an order dismissing the application of the appellant for judicial review of the Secretary of State’s decision refusing his application for leave to remain in the United Kingdom as a Tier 1 (Post-Study Work) Migrant.
Held: The . .
CitedCaroopen and Myrie v The Secretary of State for The Home Department CA 20-Dec-2016
Appeal from refusal of leave to remain – application for judicial review – further reasons given – status of additional letters.
Held: The two certifications were based upon a legal misdirection.
However: ‘There may in practice be . .
CitedHesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedDe Souza Ribeiro v France ECHR 13-Dec-2012
(Grand Chamber) A Brazilian man was arrested in French Guiana and ordered to be removed on the basis that his presence there was illegal. On the day following his arrest he filed an application for judicial review of the order but, later on that . .
CitedKhlaifia And Others v Italy ECHR 15-Dec-2016
ECHR Judgment Merits and Just Satisfaction : Court Grand Chamber . .
CitedGudanaviciene and Others, Regina (on The Application of) v The Director of Legal Aid Casework and Others CA 15-Dec-2014
Article 8 requires that an appeal against a deportation order by reference to it should be effective. The court
(a) cited at para 65 the decision of the ECtHR in W v United Kingdom (1988) 10 EHRR 29, para 64, to the effect that article 8 . .
CitedKhera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
CitedMohibullah, Regina (on The Application of) v Secretary of State for The Home Department (TOEIC – ETS – Judicial Review Principles) UTIAC 23-Dec-2016
UTIAC (i) Where there is a multiplicity of decision making mechanisms, some generating a right of appeal and others not, there is a public law duty on the decision maker to be aware of the options and to take . .
CitedGheorghiu (Reg 24Aa EEA Regs – Relevant Factors) UTIAC 24-Nov-2015
On an application for an order to suspend enforcement of an order for removal, the court or tribunal would take due account of four factors. The fourth was: ‘that in cases where the central issue is whether the offender has sufficiently been . .
CitedNare (Evidence By Electronic Means) Zimbabwe UTIAC 22-Nov-2011
UTIAC Complaint was made by an allegation that a judge of the First-tier Tribunal had too readily allowed a witness to give evidence by telephone.
Held: The decision whether to allow evidence to be given by . .
CitedThe Lord Chancellor v Detention Action CA 29-Jul-2015
The claimant challenged the legality of the Fast Track Rules 2014 which govern appeals to the First-tier Tribunal (Immigration and Asylum Chamber) against refusals by the Secretary of State for the Home Department (‘SSHD’) of asylum applications. . .
CitedQuila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
CitedIR and GT v The United Kingdom ECHR 28-Jan-2014
. .
CitedMaslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
CitedMaslov v Austria ECHR 22-Mar-2007
. .

Cited by:
See AlsoAJ (S 94B: Kiarie and Byndloss Questions) Nigeria UTIAC 28-Feb-2018
(1) In the light of Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42, the First-tier Tribunal should adopt a step-by-step approach, in order to determine whether an appeal certified under section 94B of the . .
CitedBegum v Special Immigration Appeals Commission and Others CA 16-Jul-2020
Return To UK to fight Citizenship Withdrawal
The appellant had, as a 15 year old, left to go to Iraq to be the ISIL terrorist group. She married an ISIL fighter and they had three children, the last one dying. Her citizenship of the UK had been withdrawn by the respondent leaving an . .

These lists may be incomplete.
Updated: 14 July 2021; Ref: scu.587787