Article 8, DFAL, Guidance, UKSC, UTIAC

Guidance on DFAL and Correct Forum

In the case of R (Watson) v Secretary of State for the Home Department & Anor (Extant appeal: section 94B challenge: forum) [2018] UKUT 165 (IAC), the UTIAC imparted the following guidance:

(1)   Where an appellant’s appeal has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 and the appellant has been removed from the United Kingdom pursuant to that certificate, the First-tier Tribunal is the forum for determining whether, in all the circumstances, the appeal can lawfully be decided, without the appellant being physically present in the United Kingdom. The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).

(2)   If the First-tier Tribunal stays the appeal proceedings because it concludes that they cannot progress save in a manner which breaches the procedural rights safeguarded by Article 8, then it is anticipated the Secretary of State will promptly take the necessary action to rectify this position. If this does not happen, then an application for judicial review can be made to the Upper Tribunal to challenge the Secretary of State’s decision and compel him to facilitate the appellant’s return.

(3)   If the First-tier Tribunal decides that the appeal process is Article 8 compliant, the Tribunal’s substantive decision will be susceptible to challenge, on appeal to the Upper Tribunal, on the ground that the Tribunal was wrong so to conclude.

DFAL, UKSC, UTIAC

Deportation and Removal: Supreme Court to Hear Appeals on Seven Year Rule

Next week the UKSC will consider cases on the seven year rule. In Pereira (Appellant) v Secretary of State for the Home Department (Respondent) the court will consider the correct approach to determining when it will be unreasonable to expect a non-British child who has been resident in the UK for seven or more years to leave the UK under 276ADE(1)(iv) of the Immigration Rules. The Appellant is a citizen of Sri Lanka. He arrived in the UK as a dependent of his father in 2006 aged seven. In November 2013 he applied in his own right for indefinite leave to remain in the UK under 276ADE(1)(iv) of the Immigration Rules. His application was refused by the Respondent on the basis that it was not unreasonable for him to return to Sri Lanka given that both his parents had been refused further leave to remain in the UK. He appealed this decision to the First-tier Tribunal. The First-tier Tribunal allowed the appeal but failed to consider at all whether it was unreasonable for the Appellant to leave the UK. The Upper Tribunal overturned the appeal and remade the decision holding that it would not be unreasonable for the Appellant to return to Sri Lanka. The Court of Appeal held that the Upper Tribunal had failed to properly carry out the proportionality assessment and remitted the case to the Upper Tribunal. The Appellant contends that his appeal should have been allowed outright. Continue reading “Deportation and Removal: Supreme Court to Hear Appeals on Seven Year Rule”

DFAL, UKSC, UTIAC

Upper Tribunal: Deport First Appeal Later

In AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC), the President of UTIAC Mr Justice Lane held as follows:

(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 Nationality, Immigration and Asylum Act 2002 can be determined without the appellant being physically present in the United Kingdom.

(2) The First-tier Tribunal should address the following questions:

  1. Has the appellant’s removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers?
  2. If not, is the appellant’s absence from the United Kingdom likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?
  3. If not, is it necessary to hear live evidence from the appellant?
  4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?

(3) The First-tier Tribunal should not lightly come to the conclusion that none of the issues covered by the first and second questions prevents the fair hearing of the appeal.]

Continue reading “Upper Tribunal: Deport First Appeal Later”