Judges can decide after the hearing whether an out-of-country appeal is fair

Juba (s. 94B: access to lawyers) [2021] UKUT 95 (IAC) is the latest judgment dealing with the “deport first appeal later” policy, following on from the famous Kiarie and Byndloss case. In Juba, the Upper Tribunal has found that it was acceptable for the First-Tier Tribunal to hear an appeal brought from abroad after deportation, and to only then decide whether the appellant had been deprived of the ability to secure legal representation, and/or to give instructions and receive advice.

The Upper Tribunal also reiterated how and why it matters that a deportee arrived in the UK as a child. In summary, arriving in the UK as a child always matters when assessing whether there are exceptional circumstances. Adverse credibility findings, or not being born in the UK, do not remove the need to apply the Maslov principles.

Background: deport first, appeal later

In the case of Kiarie and Byndloss [2017] UKSC 42, the Supreme Court held that out-of-country appeals may be unlawful when the person cannot effectively appeal against the decision from outside the UK. This might be because of difficulties in securing legal representation and giving evidence. Importantly, though, the Supreme Court did not find that all out-of-country appeals would necessarily be unlawful.

There followed a number of cases clarifying the impact of Kiarie and Byndloss.

One such case was AJ [2018] UKUT 115 (IAC), which incidentally featured same appellant as in Juba. In AJ, the Upper Tribunal found that, to determine whether an appeal would be unlawful, the immigration judge needs to review a number of factors, such as the possibility of giving evidence, the effectiveness of securing legal representation, the possibility of producing expert evidence, and the importance of hearing live evidence.

The case was then remitted to the First-Tier Tribunal to assess those factors. The First-Tier Tribunal dismissed the appeal. It found that there had been an effective hearing, and that Mr Juba’s Article 8 rights were not breached by his deportation.

Mr Juba appealed and found himself in front of the Upper Tribunal again.

When to assess whether an appellant had effective legal assistance

There is little benefit in trying to paraphrase the relevant findings when the headnote does a perfectly good job of explaining them:

(1) In the light of Kiarie and Byndloss [2017] UKSC 42, the first question to be answered by the First-tier Tribunal in an appeal involving a claim that has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 is whether the appellant’s removal from the United Kingdom pursuant to the certificate has deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers (AJ (s.94B: Kiarie and Byndloss questions) [2018] UKUT 115 (IAC)).

(2) The task for the First-tier Tribunal in answering that question is fact and context-specific. The Tribunal must, in particular, determine whether the facts demonstrate the kind of inconvenience or difficulty that is inherent in the appellant being outside the United Kingdom; or whether there has been, or will be, an actual impediment in the taking of instructions and receiving of advice.

(3) There may be circumstances where, at some point before the hearing is due to take place, it will be evident that the appellant’s legal adviser is simply not in a position to mount an effective case, owing to the appellant being outside the United Kingdom. In such circumstances, it would manifestly be wrong to undertake the hearing.

(4) The first question does not, however, necessarily have to be answered by the Tribunal before the start of any hearing of the appeal. Where the position is not clear cut, it will be a matter for the Tribunal to decide whether it addresses the first question after the hearing has taken place. Matters may arise during that hearing which show the question falls to be answered in favour of the appellant. In other cases, the answer may fall to be answered in the negative, once the hearing has occurred. For example, the oral evidence may disclose that an issue upon which it might have been thought the legal adviser was without relevant instructions is not, in fact, relevant to the outcome; or that what might otherwise have been thought to have been a “gap” in the adviser’s instructions is not of such a nature.

In other words, the question as to whether  “deport first appeal later” deprived an appellant of the ability to obtain effective legal advice can be answered during or after the appeal is heard.

Relevance of having arrived in the UK as a child

A different part of the judgment concerns section 117C of the Nationality, Immigration and Asylum Act 2002, which sets out statutory exceptions to when deportation is in the public interest. In this case, we are interested in sections 117C(4) and 117C(6). 

Section 117C(4) states that it would not be in the public interest to deport someone who

• has been lawfully resident in the United Kingdom for most of their life,
• is socially and culturally integrated in the United Kingdom, and
• would experience significant obstacles to reintegrating in the country where they would be deported

Section 117C(6) states, simplifying slightly, that it would not be in the public interest to deport someone where there are “very compelling circumstances”.

Now, Mr Juba tried to argue that he should be covered by the first of the bullet points above. Had an immigration application been made for him when he was a child, then he would have met the requirements of section 117C(4), because he would have been lawfully resident in the UK for most of his life.

The Upper Tribunal rejected that argument, applying the case of CI (Nigeria) v SSHD [2019] EWCA Civ 2027. It is not possible to meet the requirements of section 117C(4) by arguing what “could have been”. Headnote:

(5) It is unnecessary to “read down” s. 117C(4) in order to avoid a breach of Article 14 of the ECHR because, inter alia, the case-specific factors said to support any discrimination are relevant to the s. 117C(6) exercise, which requires a more nuanced approach and a collective examination of all relevant matters.

But the fact that someone arrived in the UK as a child will be taken into account when assessing section 117C(6). When making that assessment, the tribunal must look at whether, despite not having been lawfully resident in the UK for most of their life, a person is socially and culturally integrated in the UK, and would experience significant obstacles to reintegration. In this case, the Upper Tribunal found that the First-Tier Tribunal correctly applied that test. The First-Tier Tribunal had refused Mr Juba’s case on the basis that, while he was integrated in the UK, he had also integrated in Nigeria.

Appeal to be re-decided because of Maslov error

The Upper Tribunal agreed with Mr Juba, however, that the First-Tier Tribunal erred when it came to the Maslov principle. This, in short, is the finding in the case of Maslov v Austria (application no. 1638/03) that “for a settled migrant who has lawfully spent all or the major part of his or her childhood or youth in the host country, very serious reasons are required to justify expulsion”.

The First-Tier Tribunal found that this principles did not apply to Mr Juba because he was not born in the UK, and/or because he had been the subject of adverse credibility findings by the tribunal. Neither of those factors, the Upper Tribunal found, meant that the Maslov principles did not apply. Headnote:

(6) Adverse credibility findings and the fact that an individual was not born in the United Kingdom do not obviate the requirement to apply the key principle in Maslov v Austria [2009] INLR 47, as explained in CI (Nigeria) v SSHD [2019] EWCA Civ 2027.

The same tribunal will now make a new decision on the outcome of the case, correctly applying the Maslov principles to the Article 8 proportionality exercise. 

If reported, that remade decision will be one to watch out for. Even better would be for these cases never to see the inside of a hearing room.