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Supreme Court judgment in Kiarie & Byndloss: a big step forward, so what comes next?

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Posted on June 20th 2017

You could be forgiven for having missed it amidst the much more harrowing news events of last week. But last Wednesday the government's Hostile Environment strategy took a major body blow. The controversial 'deport first, appeal later' policy was struck down by the Supreme Court in a unanimous ruling.

JCWI has been campaigning against this policy since its introduction in the Immigration Act 2014, and we are encouraged and relieved by the Supreme Court's judgment. So what, in a nutshell, is the significance of this case for migrants and campaigners?

The case of R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] tested the legality of the Government's policy of deporting convicted foreign nationals who have been convicted of crimes, without allowing them to exercise the right of appeal from within the UK. It involved two cases against deportation, considered to be arguable by the Secretary of State. In both cases, the Home Office had certified the cases as only bringing a right of appeal from outside the UK, meaning that the appellants would not have the chance to bring the appeal from within the UK and to be present at the hearing. It was argued that the Home Secretary would breach their human rights by removing them from the UK before they could appeal the decision and without making proper provision for them to appeal and participate in the appeal.

We had been waiting with interest for the Supreme Court's judgement in this case, and have been greatly concerned by the implications of the 'deport first, appeal later' policy. During the passage of the 2014 Act JCWI argued that denial of in-country appeal rights amounts to a breach of basic principles of fairness and access to justice. In our view this policy undermines the rule of law - it essentially enables the Government to avoid scrutiny of its deportation decisions.

Worse still, the 'deport first, appeal later' policy was extended beyond foreign nationals who had committed crimes under the Immigration Act 2016. This means that all migrants  seeking to make a legal appeal against an immigration decision would only be able to do so from outside the UK, unless it was considered that this would put them at risk of serious or irreversible harm on return. This would result in a wide range of people, including family members of British citizens, being denied the ability to challenge decisions made by the Government in a court of law - a central legal principle which we all have come to depend upon.

Thankfully, last week, the Supreme Court roundly and emphatically found that May's policy was unlawful. The judges found that deporting foreign national offenders forced them to conduct appeals from abroad, but did not provide a fair system compliant with human rights for doing so. The Court was not convinced that appellants could find legal representation overseas or access the facilities in order to give live evidence from abroad. It also reported that just 72 out of 1,175 people subjected to the policy had lodged an appeal from overseas since its introduction and that none, to date, have been successful.

It is now unlikely that the Government can continue to deport foreign national offenders, without first giving them the right of in-country appeal. It is also very unlikely that the scheme can be extended to cover appeal rights on wider immigration decisions without the policy being amended. Whilst the Government may seek to make practical arrangements to overcome some of the Court's objections, it's hard to see how this could work in practice given the depth of the criticisms. It may also be that some individuals whose appeal from overseas has been unsuccessful, or who had been unable to appeal, will be able to apply to have their cases reconsidered and potentially be returned to the UK in order to do so.

JCWI will now be monitoring policy and guidance to ensure that the Supreme Court judgement is implemented in full. And we will continue to make the wider arguments that everyone deserves access to basic legal rights - when these are eroded for one group, we are all likely to be affected sooner or later.

JCWI's press release on the case can be found here

A full summary of the case can be found on the Free Movement website here.


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