‘Deport first, appeal later’ held to be unlawful

26 June 2017

On 14 June 2017, the Supreme Court gave judgment in a case involving two men facing removal from the UK under the ‘deport first, appeal later’ scheme.  You can read the court’s full decision here: https://www.supremecourt.uk/cases/docs/uksc-2016-0009-judgment.pdf

Summary of the case:

  • Involved 2 men, Mr Kiarie and Mr Byndloss, who held indefinite leave to remain in the UK but received criminal convictions (and terms of imprisonment) due to drugs offences. 
  • Both men received deportation orders and were given an additional ‘deport first, appeal later’ decision.  This meant that they were to be removed from the UK immediately, and only permitted to appeal once back in their original countries of nationality.
  • A ‘deport first, appeal later’ decision cannot be appealed.  Instead, the men were forced to apply to a separate court for the decisions to be ‘quashed’ (cancelled).  There were permitted to remain in the UK while those applications were considered.      
  • The Supreme Court allowed their case:
    • The court considered whether the ‘deport first, appeal later’ rule allows an individual to have an effective appeal
    • The judges raised concerns about how an individual would be appropriately represented by a solicitor if the individual was not in the same country as where the appeal would be taking place
    • They cited issues regarding how evidence would be given, recognising that live evidence was important and that there were several barriers to giving evidence via video link to UK Tribunal centres
    • The court noted that since the Home Office began its ‘deport first, appeal later’ scheme, the number of appeals had fallen dramatically, and there had not been a successful overseas appeal
  • The court decided that without better facilities in hearing centres to ensure that effective out of country appeals can be heard, the ‘deport first, appeal later’ scheme should not continue – it was considered to be contrary to the individuals’ human rights

What this means:

Since introducing the ‘deport first, appeal later’ scheme, the Home Office has been using this option more and more.  In fact, it now applies to more than just those facing deportation following a criminal conviction; a ‘remove first, appeal later’ option has been introduced for ‘overstayers’ in the UK. 

The decision of the Supreme Court now means that the Home Office will have to reconsider how it restricts access to a right of appeal.  Planned expansion of the ‘remove first, appeal later’ scheme is likely to be suspended, and those currently challenging such decisions in the UK should see a successful outcome.  This does not signify that the original Home Office decision (eg to deport or remove from the UK) will be cancelled, but it should mean that the individual will now have an appeal at which they can attend and argue for the right to remain. 

 

If you have received notification of your deportation or removal from the UK and would like assistance, call us now on 0161 234 6800.