In the case of R v Secretary of State for the Home Department  UKSC 42, the Supreme Court considered whether two foreign criminals, who by reference to Article 8 of the ECHR have arguable appeals against deportation orders made against them and who have rights thereunder for their appeals to be effective, would suffer a breach of those rights if they were to be deported in advance of their appeal hearing.
The case concerned two individuals, Mr Kiarie who has Kenyan nationality and came to the UK in 1997 with his family at the age of three and Mr Byndloss who has Jamaican nationality and has lived in the UK since the age of 21. Both had received convictions for serious drug related offences, and in October 2014 the Home Secretary made orders for their deportation to Kenya and Jamaica respectively and rejected their claims that deportation would breach their right to respect for their private and family life under article 8 of the ECHR.
When making the deportation orders, the Home Secretary issued certificates under section 94B of the Nationality, Immigration and Asylum Act 2002. In certifying the appellants’ claims under section 94B, she chose not to certify their human rights claims as “clearly unfounded” under section 94, indicating that their appeals were arguable. The effect of this being that the appellants could bring their appeals against the Home Secretary’s immigration decision to deport them but only after they had returned to Kenya and Jamaica.
The Supreme Court considered the practical difficulties an appellant would have in (1) presenting his case from abroad, in particular securing legal representation and (2) giving live evidence.
In obtaining legal representation an appellant would struggle to secure legal aid for such representation and even if he was able to secure legal representation, the appellant and his lawyer would face formidable difficulties in giving and receiving instructions prior to and during the hearing.
Further, the effectiveness of an arguable appeal is likely to turn on the ability of the appellant to give live evidence to assist the tribunal in its assessment of whether he is a reformed character and the quality of his relationships with others in the UK, in particular with any child, partner or other family member.
Alternatives to giving live evidence was considered, however were ruled as being impractical and too expensive.
The Supreme Court held that the Home Secretary had failed to make provisions for the procedural protections of Article 8 or establish that deportation in advance of appeal strikes a fair balance between the rights of the appellants and the interests of the community. The decision to issue the certificates were therefore held to be unlawful.