Immigration appeals play a significant part in the asylum process. According to the Free Movement blog’s analysis of Home Office immigration statistics (year ending September 2018), around two-thirds of asylum seekers were turned down in their first bid to be recognised as a refugee. 5,000 people successfully appealed against a Home Office immigration decision and 35% to 40% of appeals were successful.

Whilst many immigration decisions can be challenged by way of an appeal before an independent judge at the first tier tribunal, and asylum seekers allowed to remain the UK while their appeal is under way, this is not the case for ‘clearly unfounded’ claims.

Under s 94 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) the Secretary of State for the Home Department (SSHD) has the discretion to ‘certify’ any human rights or humanitarian protection claim if the Secretary of State, or the official acting on their behalf, considers the claim to be ‘clearly unfounded’. In other words the claim is not arguable. The result is that an applicant may only exercise a right of appeal against the SSHD’s decision if they leave the UK; the applicant is granted an out-of-country rather than an in-country right of appeal.

This article examines the certification process and its impact on Home Office policy, judicial reasoning and appeals brought from outside the United Kingdom.

Home Office’s stance on clearly unfounded claims

In principle, a claim is ‘clearly unfounded’ when it cannot succeed. This was advanced in R (on the application of Thangarasa and Yogathas) v Secretary of State for the Home Department [2002] UKHL 36 by Lord Hope at para 34: a claim may be certified if it ‘is so clearly without substance that the appeal would be bound to fail’. A somewhat stricter definition was provided by Lord Phillips in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 (the SSHD appealing), at para 23: ‘if any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded’.

Certification is recommended by an initial Home Office caseworker. It is Home Office policy that all such claims must then be assessed by an accredited ‘second pair of eyes’ (SPoE) who will maintain or cancel the certificate (Home Office, Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims), November 2017, p24).

The purpose of certification is to sift out applications of little or no merit and, in theory, encourage unsuccessful applicants to leave the UK if they wish to have their case heard by an independent judge. If an unsuccessful applicant elects to remain in the UK they cannot exercise their right of appeal. The only remedy available to them is to challenge the decision and/or certificate by judicial review.

Distinguishing the s 94B provision

Section 94B of the 2002 Act refers to certification of applications concerning foreign criminals who face deportation. The legal test is different to that of s 94. Such claims are arguable (unlike s 94 ‘clearly unfounded’ cases) but a deportee’s claim will be heard once they leave the UK. Notwithstanding this distinction, both s 94 and s 94B have the same administrative effect; that of removing or deporting a person who can thereafter only exercise a right of appeal from outside the UK.

R (on the applications of Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 concerned two foreign criminals whose claims were certified under s 94B. Their cases were arguable. Whilst the case referred only to certification under s 94B, as per Lord Wilson at para 9, the decision ‘will surely impact on the extent’ of the lawful exercise of certification universally. Kiarie and Byndloss highlighted, inter alia, examples of procedural difficulties that an appellant may face should they wish to be heard from outside the UK. It follows that any out-of-country right of appeal, brought under either s 94 or 94B, would more or less cause the same strains on trial and procedure.

Impeding the right to a fair trial?

Kiarie and Byndloss accepted that there could be practical limitations affecting the exercise of a right of appeal from abroad. It emphasised that Article 8 of the European Convention on Human Rights does not require access to the best possible procedure, but access to a procedure which is effective and fair (para 88; citing IR v United Kingdom [2014] ECHR 340 and agreeing with Richards LJ in [2015] EWCA Civ 1020, para 64). However, as per Lord Carnwath at para 87, the responsibility of availability of mechanisms that will enable an effective appeal rests with the SSHD. But is the current procedure effective and fair if initiated from abroad?

Everyone has the right to be represented, though an increasing number choose not to be. In the context of an out-of-country immigration appeal, Lord Wilson recognises that practical difficulties make representation as well as the giving and taking of instructions less than ideal: ‘Even if an appellant abroad secured legal representation from one source or another, he and his lawyer would face formidable difficulties in giving and receiving instructions both prior to the hearing and in particular during the hearing’ (Kiarie and Byndloss, para 60). This, the authors would argue, is subject to an appellant securing legal representation in the first place. Non-UK non-EEA qualified legal professionals practising from outside the EEA may be impeded to give immigration advice and to provide immigration services to an appellant who is abroad due to the restrictions imposed on such services by s 84 of the Immigration and Asylum Act 1999.

A large proportion of appellants in immigration cases are less financially able, which, by implication, renders more prohibitive the process of appealing from abroad. Substantial cost is incurred by the average appellant. Costs differ from country to country but a deportation appeal from Nigeria, for example, was estimated to cost just shy of £1,700 in 2017 (Kiarie and Byndloss paras 71 and 72). Legal representation costs aside, an appellant would require a computer (and knowledge of how to use it), a projector or screen, a video-link or Skype, and a reliable Wi-Fi or 3G connection. Higher relative costs, digital knowledge, technological compatibility with the UK and connectivity issues will potentially hamper poorer individuals in low and middle-income countries.

We now turn to oral evidence. It is accepted that live evidence on screen is often not as satisfactory as live evidence given in person from the witness box (Kiarie and Byndloss, para 67). Lord Wilson, citing R (on the application of Mohibullah) v Secretary of State for the Home Department [2016] UKUT 561 (IAC) at para 90, raises a number of reasons why on-screen live evidence may prove troublesome during the hearing: unscheduled requests for production of further documents, taking further instructions and potential loss of judicial control. Language barriers and interpreters could also be a key consideration in this discussion. Mr Justice McCloskey and Upper Tribunal Judge Rintoul observed that the mechanism of evidence by video link is ‘unsatisfactory’ and is not clear whether essential judicial exercises could be conducted ‘satisfactorily in an out-of-country appeal’ (Mohibullah, para 90). In principle nonetheless, as stressed by Lord Carnwath, there is no reason why use of modern video facilities should not afford an effective means of providing oral evidence and participation from abroad, so long as the necessary facilities and resources are available (Kiarie and Byndloss, para 103).

To FOI or not to FOI

It follows from the above that the practical difficulties may hinder the number of appellants who elect to exercise their right of appeal from outside the UK. A direct correlation in relation to ‘clearly unfounded’ claims certified under s 94 cannot be established. However, the figures for arguable deportation cases certified under s 94B are worthy of reference. Between July 2014 and December 2016 the SSHD certified 1,175 arguable deportation claims under s 94B. Only 72 (or 6%) out of all 1,175 appellants exercised their right of appeal from abroad. None were successful. The question arising is if only 6% of certified s 94B arguable claims were appealed, how many certified s 94 ‘clearly unfounded’ claims were in turn appealed from abroad?

A Freedom of Information request by George Mavrantonis to the Home Office in July 2018 sought to discover the number of claims certified as ‘clearly unfounded’ under s 94 in the previous calendar year in relation to a test nationality – in this case Indian nationals. From the result the author attempted to further establish the number of certified Indian nationals who exercised their right of appeal from India. It is noted that in Kiarie and Byndloss such information, supra, was provided to the court albeit only in connection to s 94B arguable cases. In its response the Home Office stated that it held the information but would be unable to provide it as the cost of retrieving the information would exceed the cost limit (s 12 of the Freedom of Information Act 2000). Though a lawful response, it leaves unanswered the question as to the number of individuals whose claims have been certified under s 94 who went on to file out-of-country appeals, if any.

What should be done?

Kiarie and Byndloss concerned arguable deportation cases certified under s 94B of the Nationality, Immigration and Asylum Act 2002 and appeals brought from outside the UK. The authors argue that Kiarie and Byndloss has, by implication, a direct practical impact on the conduct of all out-of-country appeals including claims certified as ‘clearly unfounded’ under s 94 of the 2002 Act. Potential hindrances concerning such hearings were highlighted: legal representation, costs, technological compatibility, on-screen evidence. All these factors could have a bearing on the conduct of a right to a fair trial. Of all arguable claims certified under s 94B between 2014 and 2016, only 6% lodged an appeal from abroad. While the figures are unavailable it would be unsurprising if these hurdles were to act as a potent deterrent to out-of-country appellants.

The authors venture to suggest that an anomaly exists; that the distinction between the applications of s 94 and s 94B is irrational and amounts to a continuing injustice. This is correctable by the Secretary of State, or Parliament, who have the power to amend the law. Whether the political will exists is, of course, another matter. It is to be hoped that, in the absence of any amendment to statute, this injustice will be corrected by a sound judicial decision should the issue be raised before the senior courts.

Jonathan Trussler is a barrister, and George Mavrantonis a pupil barrister, at Legis Chambers.