Deport First, Appeal Later policy ruled out Unlawful

[lad 14]

Reading the article this morning about the Teresa May’s Deport first, Appeal Later policy for Foreign Criminals been ruled out UNLAWFUL by the Supreme Court, and that they have failed to establish that the rule struck a fair balance between the rights of the men and the interest of the community.
Article 8 of the European Convention of the Human Rights – The Right to Family & Private Life – requires that an appeal system against deportation has to be effective.
The Court ruled that deporting the men before appeal breaches the Human Rights as it likely to significantly weaken their case.

It ruled-
 The men and their lawyers would face difficulties in giving and receiving instructions before and during an appeal hearing
 A factor in an effective appeal is the ability of the applicant to give live evidence on their family ties in the UK and whether they are a reformed character
 Evidence via video link may suffice but the financial and logistical barriers to giving evidence that way from abroad are insurmountable

Just wondering if this policy would apply to all and the applicants including the one who applied on Long Residency basis as the LR application comes under the Human Rights ? And, at the moment the appeal rights are same for the LR applicants to return to their Home Countries and log an appeal from there.
More to read on - http://www.bbc.co.uk/news/uk-40272323

[vinny]

Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 42 (14 June 2017)

[Thecigardon81]

This is a GREAT NEWS!!!! I was deported BEFORE my appeal took place and found the entire experience VERY stressful and morally damaging! On Tuesday I have my appeal at the Upper Tribunal. Can't wait to see Home Office faces when they get told off by the Judge and my evidences!!!!

[vinny]

Supreme Court rules “deport first, appeal later” is unfair and unlawful

[Obie]

The Supreme Court ruled last week, that the Secretary of State's policy of deporting first and appealing later is unlawful for many reasons, amongst which is the fact that it deprives an appellant of an opportunity of properly presenting their case in court or tribunal. The consequences of this, is that the Home Office will be unable to continue this policy, which is likely to have an unwarranted interference with a person's human right.

It follows from this Judgement, that non-deportation cases, to which this power has been extended, will essentially benefit from this ruling.

Therefore, those family who have children who have lived in the UK for 7 years, and against whom the Home Office has issued a certificate and asked to appeal from overseas, will be able to argue that the certificate breaches their convention right.

This ruling does not affect unfounded certificates issued to people whose human claim are hopeless and bound to fail.

http://www.mcgillandco.co.uk/Blog/2017/ ... reme-court

Also see video

https://www.supremecourt.uk/cases/uksc-2016-0009.html

[vinny]

Posts merged.

[uhtred]

Hi there

Can someone please advice if this rule will also be applicbale to me as metioned in the decision;

The extended power does not fall to be considered in these appeals but our decision today will surely impact on the extent of its lawful exercise." (per Lord Wilson at para 9).

1) My FLR (FP) Application was clearly unfounded and then certified and I was asked to leave the country with out of country appeal right.

2) Did JR which was unsuccessful but by that time, I already had 9 Years and 11 months in the country.

3) Applied for ILR which was refused on the basis that the 6 months spent while awaiting JR decision were unlawful and I was given and in country appeal right.

Are there any chances that I too fall under the same category that the desicion not to give me an in country appeal right for my FLR (FP) application could be deemed unlawful or they can argue I didn't leave the country and did JR, so, I did put my case in front of the independent judge....

Any good of piece of advice will be highly appreciated.

Many thanks

[Obie]

The Supreme COurt ruling will does not apply to clearly unfounded appeal.

[uhtred]

Dear Obie

Thank you for your reply; always appreciated.

These were the wordings of the FLR (FP) decision;

Certification

"After considering all the evidence available it has been decided that your human rights claim is clearly unfounded and it has been certified under section 94 (1) of th Nationality, Immigration and Asylum Act 2002
This means that you may not appeal while you are in the United Kingdom"

There is also another thing which I have read;

The “deport first, appeal later” rules were originally applied only to foreign criminals facing deportation. However, the Immigration Act 2016 expanded Home Office powers and any appellant can now be forced to leave the UK prior to their appeal taking place, other than in asylum cases.

I applied in April 2015 for Private life and my application was refused in August 2015 in light of 2014 Act. So, if the powers were not extended to all other applications until 2016 Act, how could I be refused in 2015 using 2016 Act.

Could this be argued?

Many thanks

[Obie]

It may help if you read this.
There is a world of difference between 94(1), which is still a good legislation, in that it has not been struck by the court, and 94B, which the court of Appeal has expressed reservations about.

The people under 94B don't necessarily have an unfounded case, but the Home Office want to remove them anyway, as they thing their family life will not be breached in the short time of their removal.

[uhtred]

Thanks Obie; much appreciated for the link. Being a layman, I found the information very diffciult to reconsile with my case. It's truly a job of a legal professional.

Can you please advice me, what would be the best of action at this stage.

1) My appeal for ILR has been refused by the FTT; my barrister was trying hard to get the FLR (FP) decision overturned so that my stay from Aug 2015 to March 2016 become lawful and I be eligible for ILR on the basis of 10 years lawful residence. The judge said, it isn't in his power to overturn JR refusal from the Upper Tribunal becuase he is in the lower court.

2) We have applied ( in March 2017) to the FTT for permission to allow us to appeal to the Upper Tribunal and I am still awaiting decision.

p.s When refusing my FLR (FP) application, the home office that I had no private life but when I applied for ILR they said in the SAR notes, I have arguably established a form of private life in the UK.

Here is the exact wording from SAR;

Consideration of Certification (section 94/Section 96 of 2002 NIA Act)
Are the circumstances of human rights claim "clearly unfounded" No; although the applt does not meet any of the requirements under Private Life consideration, & does not have a partner of children present in the UK, the applt has resided in the UK for around 10 yrs & has therefore arguably established a form of private life in the UK over this period of time.

Is the applicant deemed to be from a "designated NSA state" for the purpose of certifying? No; applt is from PAK......

Human Rights Certification appropraite? No: Application not appropraite to be certified, Right of Appeal provided.

Many thanks