R (ON THE APPLICATION OF KIARIE) V THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2015]: COURT OF APPEAL RULES "DEPORT FIRST, APPEAL LATER" POLICY IS LAWFUL.

R (On the Application Of Kiarie) v The Secretary of State for the Home Department [2015]: Court of Appeal rules "deport first, appeal later" policy is lawful.

The Court of Appeal judges ruled on 13 October 2015 that the Home Office policy of "deport first, appeal later" does not amount to an interference with the European Convention on human rights. However, the Court provided some helpful guidance on the interpretation of 94B and its interplay with Article 8 of the Convention (the right to respect for private and family life).

Two foreign national prisoners facing deportation, Kevin Kinyanjui Kiarie and Courtney Aloysius Byndloss, challenged the lawfulness of Theresa May's "deport first, appeal later" regime in the case of R (On the Application Of Kiarie) v The SSHD.

The deportation powers under challenge were introduced by the Immigration Act 2014, which introduced a new Section 94 to the Nationality, Immigration and Asylum Act 2002 that allows the Home Secretary to certify that appeals against deportation are fit to take place out of country when there is no "real risk of serious irreversible harm" being inflicted on the appellant.

Mr Kiarie, 21, is a Kenyan national who came to the United Kingdom at the age of 3 and Mr Byndloss is a Jamaican national who entered into this country in 2002; both were granted indefinite leave to remain. However, in October 2014, after being convicted of drug related charges, they were informed of the Secretary of State's decision to make a deportation order against them.

They each claimed that deportation would be in breach of their human rights under Article 8. However, in both cases the Secretary of State certified both appellants' human rights claims under the new section 94, focusing initially only on the question of whether removal pending an appeal would cause "serious and irreversible harm".

The appellants brought judicial review proceedings against the section 94 certifications. Mr Kiarie's claim was brought in the Upper Tribunal and Mr Byndloss's claim was brought in the Administrative Court, but both claims were refused. Permission to appeal to the Court of Appeal was granted by the Master of the Rolls and Underhill LJ.

Before the Court of Appeal, the Secretary of State conceded that that interpretation of the legislation is wrong. The Court confirmed that'even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification. She cannot certify in any case unless she considers...that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act.'

The Court held that the Home Office has been applying the wrong legal test. Richards LJ described the guidance set out in subsection (3) of section 94B of the Nationality, Immigration and Asylum Act 2002 as "liable to mislead decision-makers into applying the wrong test". The correct test, according to the Court of Appeal, is whether removal for the duration of appeal would breach the appellant's human rights, not whether it would cause serious or irreversible harm.

The appellants' challenges to the decisions, however, based on arguments as to procedural protections and the best interests of children, were either rejected on the facts, or were not considered by the Court, leading the judicial review claims to fail.

Whilst the Court accepted that an out of country appeal would be less advantageous to the appellants than an in country appeal, this does not breach Article 8, which does not require the appellant of have access to the best possible procedure, or even to the most advantageous procedure available. Rather it requires access to a procedure that meets the essential requirements of effectiveness and fairness. The Court rejected the claim that an out of country appeal would deprive the appellants of effective participation in the decision-making process and of a fair procedure. However, despite the wrong test being applied, the Court found that the overall principle of removal whilst an applicant is pursuing an appeal is not unlawful.

Permission to appeal to the Supreme Court will now be sought in the hope of overturning the Court of Appeal decision. As matters currently stand, there is nothing to prevent the Secretary of State seeking to extend the "deport first, appeal later" policy to non-deportation appeals.