Kiarie & Byndloss v Secretary of State for the Home Department [2017] - Arona St James Solicitors
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Kiarie & Byndloss v Secretary of State for the Home Department [2017]

Those subject to deportation with cases involving human rights arguments have the right to appeal in country

If previously you were denied the right of appeal you may want to read this carefully.
On 14th June 2017, a landmark case was decided by the Supreme Court, that of Kiarie & Byndloss v Secretary of State for the Home Department [2017] UKSC 42. The result of this case has drastically altered the current immigration appeals process.

The deport first, appeal later provision, a scheme launched by the government to deport foreign criminals first and allow them to appeal once they had been deported was a controversial introduction. It was an extension of the Conservative party’s manifesto to create a ‘hostile environment’ for immigrants, one which has largely been met in recent immigration legislations. The provision itself was extended in December 2016 to those who had overstayed their leave to remain.
Under this principle, the Secretary of State has been awarded the power of certification under s.94B of the NIAA 2002 as introduced by s.17 (3) of IA 2014. This allows the Secretary of State to certify a human rights claim as unfounded stating that it would be “conducive to public good” for the applicant to be deported or in the alternative the court has recommended deportation after conviction of the applicant.

In the case of Kiarie & Byndloss v Secretary of State for the Home Department [2017] UKSC 42, The appellants both had indefinite leave to remain in the UK, Mr Kiarie a 23 year old Kenyan national who had lived with his parents and siblings in the UK since he was 3 and Mr Byndloss a 33 year old Jamaican National living in the UK for 12 years. Both appellants were convicted and imprisoned for possession of Class A drugs with intent to supply. In 2014, the appellants were informed that the Home Secretary intended to deport them, in response to this they submitted representations that deportation would go against their Article 8 right to private and family life.

In 2014, the Home Secretary ordered the deportation of Mr Kiarie and Mr Byndloss, sighting that it would be accepted that they could make appeals (due to time spent in UK and family ties) against the decision but that appeals must be made in Kenya and Jamaica respectively. Both appellants sought to appeal the deportation decision on the basis of their Article 8 rights.

The Supreme Court overwhelming concluded that certification of claims inherently violated the Article 8 rights of those chosen for deportation. Namely on the basis that making appeals from overseas was inherently problematic and effected the applicant’s ability to successfully present their appeal (i.e. through having to present evidence through video link etc.).

So what do this mean for those presenting human rights claims post- June 2017? Whilst a human rights claim can still be refused, applicants are entitled to appeal such decisions from within the United Kingdom instead of being deported and told to appeal from overseas. Should an applicant not wish to appeal a refusal, they will be required to leave the United Kingdom.