Byndloss, R (On the Application Of) v The Secretary of State for the Home Department

LORD JUSTICE UNDERHILL: [My Lord, this was transcribed from a very poor audio] We propose to give permission to appeal in both these appeals. I will say something in a moment about the grounds. Speaking for myself, I would prefer not to express a definitive view that the grounds of appeal advanced are arguable, or are in any event all arguable, as some at least of them seem to me to face real difficulties. However, it is clearly important that this recently introduced provision makes a significant difference to the way in which the Secretary of State is able to deal with cases of deportation of foreign criminals. It is clear from these cases and others in the pipeline that points are bound to be, and are being, taken about the prejudice of the lawfulness and correct construction of approach that there be an authoritative and early decision of this court for the guidance of tribunals and courts which have to deal with these provisions in the future.

So far as the grounds are concerned, it is more convenient to start with the grounds pleaded in Kiarie which are, subject to one point, reasonably clear and helpfully developed in the skeleton argument. Each of the five points pleaded can proceed. At the risk of an oversimplification, they are essentially concerned with the proper construction of, or approach to, section 94B(2) and (3). The principal points concern whether the approach taken by the Secretary of State, as evinced in the Kiarie decision and also the Bindloss decision, represents a proper approach. Although there is not a challenge to the guidance as such, reference is made to it as showing what the Secretary of State's approach has so far been.

The question of whether that approach tends to, and has in this particular case, involve breaches of section 6 of the Human Rights Act 1998 focuses on Article 8. Mr Drabble has made it clear that he challenges both the Secretary of State's approach to what I might call the "substantive question", that is to say the question whether the removal of the appellant, for whatever period is necessary, for the out of country appeal to be heard can be justified in the circumstances of the individual case by reference to the disruption to Mr Kiarie's private life, and also the procedural aspect, that is to say whether an out of country appeal gives sufficient or effective protection to the Article 8 rights in issue it being established (at least since the decision in this case is R (Gudanaviciene & Ors) v Director of Legal Aid Casework & Anor [2015] 1 WLR 2247) that those procedural protections are necessarily implicit in Article 8.

There are other points pleaded. Those are the principal points. Insofar as they are not entirely clear from the summary pleading, they are clear enough when one looks at the skeleton argument that Mr Drabble has undertaken to do some more to to see that they are analysed as accurately as possible in the eventual skeleton for the appeal.

I turn to the Byndloss appeal. I am afraid I cannot be quite so complementary about the grounds and the supporting documents in that case. However, it has become clear from Mr De Mello's submissions firstly, that he does not any more suggest that the section 94B is in itself incompatible with the ECHR. He does not seek a declaration of incompatibility under the Act. So far as the Convention is concerned, he puts his case essentially the same way as Mr Drabble and he is, as I understand, intending to adopt mutatis mutandis the grounds of appeal pleaded in the Kiarie case.

I am inclined, subject perhaps to any further discussion at this point and in the light of the preliminary in the paperwork so far, not to assist upon re-reading grounds of appeal. I think it will be sufficiently clear for the court hearing the eventual appeal to treat the key Kiarie grounds as applying equally in the case of Byndloss. There is a factual difference which may be quite important, at least in principle, namely that Mr Byndloss asserts a family life in terms of his relationship with his eight children. That will introduce a further element not present in Mr Kiarie's case, on the facts of his particular case, including obviously reference to section 55 of the Borders, Citizenship and Immigration Act 2009 [?]. But that does not seem to me to require the identification of a distinct ground. It will of course be developed in the eventual skeleton argument.

The one respect in which Mr De Mello goes further than Mr Drabble is that he asserts that the provisions of section 94B are inconsistent with, or are in breach of, the EU Treaty, the EU Charter and indeed also the EU Regulations 2006. I am bound to say that that argument, which depends entirely on Ruiz Zambrano v Office national de l'emploi [2012] QB 265 and the cases deriving from it, seems to me to be hopeless in the circumstances of his case, because on the facts of the case there is no evidential basis whatever for his assertion that the Zambrano principle is engaged. As Miss Chan pointed out in her helpful skeleton argument, the Jackson [?] case, in particular, has now made clear, what in any event is implicit from the EU authorities that, Zambrano only bites where there is reason to believe that the removal of the non-EU citizen is liable to lead in practice to the removal of members of his or her family who are EU citizens. There is nothing in the papers in the Bindloss case and it is inherently extremely implausible that that was so on the facts of his case.

I would therefore not give permission to take any point on a breach of the EU provisions which I have identified. For those reasons I would give permission in both cases on the grounds which I have identified. I would only add one point, that since an important element in the argument is going to be the effectiveness of either country's appeals, I think that it will assist the court on the full hearing to have, whether it is in the form formally of evidence, but some form of authoritative statement of the procedures applying to out of country appeals with which the court may not be familiar. Ideally such a statement should be agreed, but it remains to be seen whether that is possible. Certainly the court will need to be as fully informed as possible on that question.

LORD JUSTICE DYSON: I agree.