Section 17(3) of the Immigration Act 2014 amended the Nationality, Immigration and Asylum Act 2002 to introduce a discretionary certification power in relation to human rights claims made by those liable to deportation under sections 3(5)(a) and 3(6) of the Immigration Act 1971. Section 94B of the Nationality, Immigration and Asylum Act 2002 allows a human rights claim to be certified where the appeals process has not yet begun or is not yet exhausted and the Secretary of State considers that removal pending the outcome of an appeal would not breach section 6 of the Human Rights Act 1998.
One ground upon which the Secretary of State may certify a claim under section 94B is that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return. The result of section 94B certification is that the right of appeal against the decision to refuse the human rights claim is non-suspensive, meaning it is not a barrier to removal. Any appeal can only be lodged and heard, or continued if the claim is certified after the appeal is lodged, while the person is outside the UK. Regulations 24AA and 29AA were introduced into the Immigration (European Economic Area) Regulations 2006 on 28 July 2014. Regulation 24AA allows nonsuspensive appeals in certain EEA deportation cases to reflect the provision in Article 31 of the Free Movement Directive, although the power is different from section 94B.
A case cannot be certified under section 94B where deportation for a limited period pending the outcome of any out-of-country appeal would be unlawful under section 6 of the Human Rights Act 1998. Further submissions which raise human rights grounds, and are considered under paragraph 353 of the Immigration Rules, cannot be certified under section 94B if the submissions are refused and it is determined that they do not amount to a fresh claim. This is because the decision to refuse the submissions will not generate a right of appeal in these circumstances.
Human rights claims which fall for refusal and are certified under section 96 of the Nationality, Immigration and Asylum Act 2002 cannot be certified under section 94B because certification under section 96 means there is no right of appeal.
Section 55 duty
The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK means that a child’s best interests are a primary consideration in deportation cases.
When considering whether to certify a human rights claim pursuant to section 94B, the best interests of any child under the age of 18 whom the available information suggests may be affected by the deportation decision must be a primary consideration. Case owners must carefully consider all available information and evidence to determine whether or not it is in the child’s best interests for the person liable to deportation to be able to appeal from the UK. This is particularly relevant in considering whether deportation pending appeal would cause serious irreversible harm to the child.
The case owner must also consider whether those interests are outweighed by the reasons in favour of certification in the individual case, including the public interest in effecting deportation quickly and efficiently. Case owners must carefully assess the quality of any evidence provided in relation to a child’s best interests. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests or copies of documents.
Removal pending appeal and the Human Rights Act 1998
Case owners can only certify under section 94B if satisfied that removal pending the outcome of any appeal would not be unlawful under section 6 of the Human Rights Act. This means that case owners need to consider whether requiring a person to appeal, or to continue an appeal, from outside the UK would breach the ECHR. The following steps set out how to consider whether requiring a person to appeal from outside the UK would breach the ECHR.
Which articles has the person raised either explicitly or implicitly, as grounds against removing him or her from the UK? The most common types of claims are based on Article 8 (right to respect for private and family life) and Article 6 (right to a fair trial, which also includes the right to participate in civil proceedings such as family court proceedings), but case owners need to be alert to any Convention rights which may be engaged by removal pending the outcome of an appeal. When considering whether requiring a person to appeal, or to continue an appeal, from outside the UK would breach the ECHR, case owners must consider whether removal prior to the outcome of any appeal would result in a real risk of serious irreversible harm.
The serious irreversible harm test is derived from the test applied by the European Court of Human Rights (ECtHR) in immigration cases to determine whether to issue a ruling under rule 39 of the Rules of Court, preventing a signatory State from removing a foreign national from its territory. In the context of section 94B, the test for certification is that removal pending the outcome of any appeal would not be unlawful under section 6 of the Human Rights Act and the absence of a real risk of serious irreversible harm is only one relevant factor.
Human rights procedural protection
ECHR rights, such as Article 8, have a procedural aspect which means that a breach of that right can arise where there is no effective procedural protection. Procedural protection means access to an effective remedy by way of a mechanism to challenge a refusal decision. Whether a person has an effective remedy is relevant to whether it is lawful to certify a claim under section 94B. If the requirement to appeal from outside the UK means that the person cannot access a fair and effective appeal process, removal pending the appeal will be a breach of section 6 of the Human Rights Act and the human rights claim cannot be certified under section 94B.
An appeal from overseas may be less advantageous to the person. That does not mean that requiring someone to appeal from overseas is a breach of his or her Convention rights. An effective remedy does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. It requires access to a procedure that meets the essential requirements of effectiveness and fairness. The question to be answered is whether the appeal from overseas can be determined effectively and without obvious unfairness.
Process and consideration
When a preliminary decision to deport is made, the person is invited to make representations as to why he or she could not or should not be expected to appeal from outside the UK. If no representations are made the case owner does not need to consider whether an out-of-country appeal will meet the procedural requirements. Case owners do not need to make proactive enquiries, or proactively to investigate the circumstances of a person to establish whether he or she can have a fair and effective appeal if required to appeal from overseas. It is for the person to raise those points. If representations are made about why a person should not be required to appeal from overseas, they must be carefully considered.
If, notwithstanding such representations, the claim is certified under section 94B, that consideration must be set out in the decision letter. Where representations about an out-of-country appeal are made, the principles under which they must be considered are that:
- an out-of-country appeal is generally fair;
- oral evidence from the appellant and/or attendance at the appeal by the appellant are not generally required for an appeal to be fair and effective; and
- the SSHD is entitled to rely on the specialist immigration judges within the tribunal system to ensure that the person is given effective access to a remedy against the decision. The person may make representations to the effect that, despite the powers of the Tribunal to secure a fair and effective appeal, his or her personal circumstances mean that he or she would not be able to access a fair and effective remedy.
If satisfied that there is not a real risk of serious irreversible harm and that removal pending the outcome of any appeal would not otherwise breach the ECHR, case owners must consider whether there is any other compelling reason not to certify. Section 94B is a discretionary power, meaning that it does not have to be applied in all cases where removal pending the outcome of any appeal would not breach the ECHR. In each individual case, case owners must be satisfied that it is appropriate in all the circumstances to certify.
Exercising discretion should be considered where the person is not currently removable. It would be counterproductive to certify if the person could not then leave the UK to exercise a right of appeal, for example there is no realistic prospect of an acceptable travel document or other return information required for biometric returns being available. Case owners must consider any request to exercise discretion not to certify, even in the event that removal pending the outcome of any appeal would not breach the ECHR. But in the absence of specific representations, and where there are no particular factors that would justify the exercise of discretion, it is not necessary to give reasons in the decision letter for not exercising discretion in favour of a person liable to deportation.
If a protection claim and/or a human rights claim made under Articles 2 and/or 3 is certified under sections 94 or 96, but it is not possible to certify a linked Article 8 claim (or other human rights claim) under either of those powers, then consideration must be given, in line with the factors in this guidance, to certifying the Article 8 claim under section 94B. If the protection and/or Article 2/3 claim cannot be certified, there will be an incountry right of appeal against the refusal of that claim. It is preferable for all appealable decisions to be considered at a single appeal therefore in this situation any other human rights claim should not be considered for certification under section 94B.
Appeals lodged from within the UK
There may be cases where a person lodges an appeal from within the UK despite the human rights claim having been certified under section 94B. If a case owner is not sure whether an appeal is valid or invalid, advice should be sought in the first instance from a senior caseworker or a chief caseworker.
Where an invalid appeal has been lodged, the case owner must write to the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) to ask them to withdraw the listing on the basis that there is no jurisdiction to hear the appeal. If the listing is not withdrawn, the presenting officer must argue at the case management review (CMR) and/or substantive hearing that there is no jurisdiction to hear the appeal. This is the case even if the person is deported before the hearing, because legally the person can only lodge an appeal after he or she has left the UK: the person’s deportation before the hearing does not render the invalid appeal valid.
Having made these first arguments, in writing or at a CMR, if the FTT proceeds with the hearing, the presenting officer will defend the case as normal, but these arguments should be presented “in the alternative” in the event that the FTT decides it has jurisdiction to hear the appeal. The presenting officer must not refuse to argue the substance of the appeal, as this will mean the appeal, subject to jurisdiction points, is uncontested and if allowed, the Secretary of State would be unable to challenge that decision. The Specialist Appeals Team will seek to appeal any allowed appeal where the appeal was lodged from within the UK despite a section 94B certificate. This guidance applies to all section 94B certifications, regardless of whether deportation is pursued under the Immigration Act 1971, the Immigration (European Economic Area) Regulations 2006 or the UK Borders Act 2007.
Where deportation is pursued under regulation 19(3)(b) of the EEA Regulations, and the case is dual certified under regulation 24AA and section 94B, in an appeal under regulation 26 of the EEA Regulations the Tribunal can consider a human rights claim raised in response to a section 120 notice (see Schedule 1 to the EEA Regulations). It is therefore unnecessary for two separate appeals to be brought. If the person brings separate appeals under both regulation 26 of the EEA Regulations and section 82 of the 2002 Act, it is his or her responsibility to alert the First-tier Tribunal (Immigration and Asylum Chamber) that he or she will be lodging a regulation 26 appeal from within the UK, and a section 82 appeal from outside the UK, and that they should be linked for a single hearing.