This year the Bar Council is trying to draw attention to rule of law issues in our own back yard. A judgment of the Supreme Court has just shone its light upon an unlit corner where an undesirable yard rat, ‘Deport first, appeal later’ has been nesting. Very few of us are immigration lawyers, but I suspect we all understand that those we choose to deport, including foreign criminals, have certain minimum rights. Indeed, it might be said the less they are regarded by us as ‘conducive to the public good’, the more vigilant the law needs to be to protect them. After all, if not from the law, from whence will the protection come? Very few people will want to protect foreign criminals, but if their rights can be overridden, the question becomes, who next?

The law determines that it is conducive to the public good to deport foreign criminals; defined as those who are not British citizens, who are convicted in the United Kingdom for an offence which attracts a sentence of imprisonment for at least one year. They must be deported unless their removal would breach their convention rights. If they allege a breach of those rights, that might enable them to appeal to a tribunal before they are removed, but the Home Secretary can certify where appropriate, that the rights claim is ‘clearly unfounded’ and need not prevent removal in advance of appeal. In other words, the grant of such a certificate results in any appeal having to be pursued from abroad.

If, on the other hand, the rights claim may have some foundation, legislative amendment provided that, from July 2014, removal pending appeal was still enabled if the Secretary of State certified that the process would not in itself breach convention rights.

So it is that foreign criminals, who have been removed pending appeal but who in fact have some foundation for asserting that their deportation was unlawful (perhaps because of the adverse impact on the welfare of their children), will have to make that argument ‘out of country’. That might be acceptable if there was no difficulty in pursuing an appeal in that way. But what are the practicalities? Can such appeals be meaningfully pursued from abroad? If not, the right to appeal becomes worthless.

Given the state of the law, it is perhaps no surprise then that of 1,175 deportees with arguable appeals removed from the UK before their appeal was heard, only 72 have managed to file a notice to appeal from abroad and none have been successful.

Why stop at foreign criminals? There are others we want to deport. So it is that recent amendment to the Immigration Act 2016 expands the ‘Deport first, appeal later’ rules so that any appellant can now be forced to leave the UK prior to their appeal taking place, other than in asylum cases. This includes EU nationals facing deportation.

But these plans have just suffered a setback. The Supreme Court has ruled in R (Kiarie) and R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 that this state of affairs is unlawful, or to be more precise, that given Art 8 rights have been infringed, and considering proportionality, the Home Secretary has failed to establish a fair balance between the rights of the appellants and the rights of the community.

Although immigration law is complicated, the reasoning is accessible to most of us. For example, as Lord Wilson points out, fairness suggests deportees would need at least to be afforded the opportunity to give live evidence. Given they were not going to be able to do so in person (having been deported) the ‘second best’ option – a video link – whilst theoretically possible, presented logistical and financial obstacles that were in practical terms almost insurmountable.

As to the desirability of receiving evidence in this way, the court quoted a recent decision of the Upper Tribunal, R (Mohibullah) v Secretary of State for the Home Department [2016] UKUT 561 (IAC):

 

‘Experience has demonstrated that in such cases detailed scrutiny of the demeanour and general presentation of parties and witnesses is a highly important factor. So too is close quarters assessment of how the proceedings are being conducted – for example, unscheduled requests for the production of further documents, the response thereto, the conduct of all present in the courtroom, the taking of further instructions in the heat of battle and related matters. These examples could be multiplied. I have found the mechanism of evidence by video link to be quite unsatisfactory in other contexts, both civil and criminal. It is not clear whether the aforementioned essential judicial exercises could be conducted satisfactorily in an out of country appeal. Furthermore, there would be a loss of judicial control and supervision of events in the distant, remote location, with associated potential for misuse of the judicial process.’

 

It is a comfort that these obvious things are said about the second best nature of evidence given via video link. They run somewhat against the prevailing mood.

But more importantly, the rule of law, as enunciated by Lady Hale, and Lords Wilson, Carnworth, Hodge and Toulson, has offered some protection to foreign criminals we seek to deport, because even they have minimum rights. It seems unlikely that ‘Deport first, appeal later’ can at least for the time being be expanded to others.

The case has caused a predictable outcry. The sentiment is that foreign convicts, notwithstanding they may have served their punishment, have forfeited all rights. Any suffering to them or their family caused by their removal must be endured whether or not it is proportionate. So this decision of our Supreme Court runs contrary to the prevailing mood. But the stronger the prevailing mood, the more the lawyer in each of us should rejoice and be proud that those who might least expect to receive the protection of any law, have done so where the rule of law still prevails.