In what is believed to be the first successful case of its kind, Mr Justice Lane and Upper Tribunal Judge O’Connor have directed the Secretary of State for the Home Department (SSHD) to fund and facilitate the return of our client (WW) to the United Kingdom, in circumstances where he had been denied the opportunity to obtain the ‘best evidence’ relating to the best interests of his British children in his human rights appeal.
WW was removed to Jamaica almost 3 years ago in accordance with the SSHD’s “deport first, appeal later” provision under s.94B of the Nationality Immigration Asylum Act 2002. After his removal, the Supreme Court in the landmark case of Kiarie and Byndloss  UKSC 42 held that requiring a person to bring a human rights challenge to his deportation from abroad, would give rise to a breach of European Convention on Human Rights (ECHR) Art 8 as an out-of-country appeal would not be effective.
A referral was made to Duncan Lewis by the charity “Roots to Return” who then assisted WW with filing an application for Judicial Review to challenge the continued refusal of the SSHD to return WW to the UK despite the Supreme Court’s ruling in Kiarie and Byndloss. At an Interim Relief hearing heard before the Upper Tribunal in March 2018, WW was directed to proceed with his appeal from outside of the UK as it was considered that the First-tier Tribunal (‘FtT’) was best placed to determine whether or not WW’s appeal could be effective from Jamaica.
Having been identified by the FtT as one of several “test cases” to assess the fairness of “deport first, appeal later” hearings in practice, WW’s appeal was heard before the President and the Vice President of the FtT in June 2017 where he continued to argue that his appeal could not fairly proceed whilst he remained outside of the UK, particularly in light of his inability to instruct an Independent Social Worker to assess his British children in the UK as his estranged partner would not comply with an assessment.
Notwithstanding WW’s difficulties in obtaining key evidence for the appeal, the FtT determined that his appeal had been fair and effective and went on to dismiss his appeal brought on Art 8 ECHR grounds. On appeal to the Upper Tribunal, Upper Tribunal Judge O’Connor held that the FtT were wrong in law to do so, and ruled that WW’s appeal could only be fairly and effectively determined if he were in the UK, inviting the SSHD to confirm whether he intended to bring WW back to the UK in light of the decision.
Despite the Upper Tribunal’s determination, the SSHD refused to return WW to the UK, indicating that he intended to appeal the decision. In response, WW made an application to lift the stay on his Judicial Review claim and a directions hearing was subsequently listed for 3 May 2019 to determine the best course of action in both the Judicial Review and appeal proceedings.
After hearing submissions from both parties, Mr Justice Lane and Upper Tribunal Judge O’Connor directed the SSHD to fund and facilitate the return of WW to the UK as soon as practicable, so that his appeal could be considered de novo, where any appeal submissions made by the SSHD would be entertained at a rolled up hearing.
WW is represented by Sulaiha Ali and Philip Armitage of the Harrow Public Law team. Instructed counsel includes Sonali Naik QC, Bijan Hoshi and Ali Bandegani of Garden Court Chambers.
If you have any questions about this appeal, please contact:
Sulaiha Ali: 0203 114 1163 or firstname.lastname@example.org.
Philip Armitage: 0203 114 1219 or email@example.com.
Duncan Lewis Public Law Solicitors
The Duncan Lewis Public Law department continues to be recommended by The Legal 500 with the 2019 edition reporting its 'strong presence in this area of the law, making a particularly dominant contribution in immigration, asylum and prison law.'
The Public law team has experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, following up judicial reviews with actions for damages in both the County and High Court and successfully pursuing judicial review matters to the Court of Appeal and Supreme Court. A particular focus is the team’s work handling cases of the deprivation of British citizenship and deportation threats, with a niche specialism in challenging the treatment of immigration detainees and other marginalised communities.
To contact a specialist member of the public law team, call 033 3772 0409.