Nixon & Anor, R (On the Application Of) v Secretary of State for the Home Department

In R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42; [2017] 1 WLR 2380 (“Kiarie & Byndloss”) the Supreme Court held that, on the evidence before it, an out-of-country appeal would not be effective protection of the human rights of the two appellants before the court, who each contended that his deportation would be a breach of article 8 of the European Convention on Human Rights (“the ECHR”).

The applications before me raise this issue: what is now the correct approach to those whose claims that their deportation would breach article 8 were rejected by the Secretary of State and who were, prior to the handing down of the judgments in that case, removed from the United Kingdom without the ability to contest an appeal against that rejection in-country?

Before me, the applicants Paul Nixon and J-Kwon Nixon were represented by Becket Bedford of Counsel, and the applicant Omark Damion Rick Williams Tracey by Tiki Emezie, Solicitor Advocate. Lisa Giovannetti QC and Richard Evans of Counsel appeared for the Secretary of State. At the outset, I thank each of them for their contribution.

Section 3(5)(a) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good.

Section 32 of the UK Borders Act 2007 makes provision for “automatic deportation”: subject to section 33, the Secretary of State must make a deportation order in respect of a “foreign criminal”, i.e. a person who is not a British citizen, who has been convicted in the UK of an offence, and who has been sentenced to a period of imprisonment of at least 12 months for any offence or for a term of any length for a specified offence. Section 33 provides for a number of exceptions, including where removal would breach a person’s rights under the ECHR (section 33(2)(a)).

Section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides a person with a right to appeal to the First-tier Tribunal (Immigration and Asylum Chamber) from a decision to refuse a human rights claim made by that person. (Statutory references in this judgment are to the 2002 Act, unless otherwise indicated.)

Section 92 of the 2002 Act determines the place from which an immigration appeal under section 82(1) may be brought or continued. Generally, by section 92(3), an appeal from a decision of the Secretary of State refusing a human rights claim, made under section 82(1)(b), must be brought and may be continued in the UK (“an in-country appeal”). However, section 92(3)(a) and (6) provide that, where the Secretary of State has certified a claim under specified provisions, including section 94(1) and section 94B, then the claim must be brought from outside the UK or, if brought inside, continued outside (“an out-of-country appeal”). In either case, certification does not deny the applicant a right of appeal; but the right of appeal can only be exercised from outside the UK.

Under section 94(1), the Secretary of State may certify a human rights claim if she considers it is “clearly unfounded”; and, under section 94(3), she must so certify it if she is satisfied that the claimant is entitled to reside in a state listed in section 94(4) (which includes Jamaica) unless satisfied that it is not clearly unfounded.

Under section 94B, the Secretary of State may certify a human rights claim if she considers that, despite the appeals process not having begun or not having been exhausted, removing the particular individual from the UK would not be unlawful under section 6 of the Human Rights Act 1999, i.e. not in breach of the ECHR. Section 94B(2) provides that the grounds upon which the Secretary of State may certify a claim include where the claimant would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country to which it is proposed to remove him.

In R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020, this court considered the effectiveness of an out-of-country appeal where the Secretary of State has rejected a human rights claim. In each case, the appellant was threatened with deportation as a result of offending, but he contended that deportation would be in breach of his right to private and/or family life under article 8 of the ECHR. The Secretary of State, however, upheld her decision to deport, and served a notice certifying the human rights claim under section 94B. The question arose as to how effective an out-of-country appeal would be as a protection of the proposed deportee’s substantive article 8 rights.

This court held that the Secretary of State could properly proceed on the basis that an out-of-county appeal would meet the procedural requirements of article 8 in the generality of deportation cases, because such an appeal met the essential requirements of effectiveness and fairness; and the Secretary of State was entitled to rely on the specialist immigration judges within the tribunal system to ensure that an appellant was given effective access to the decision-making process and that that process was fair, irrespective of whether the appeal was brought in-country or out-of-country.

The Supreme Court took a different view. Lord Wilson JSC (with whom Baroness Hale of Richmond DPSC, and Lords Hodge and Toulson JJSC agreed), emphasised that, as in all human rights cases, whether an out-of-country appeal will be procedurally adequate will depend upon the circumstances of the particular case; and “in proceedings for judicial review of a certificate under section 94B, the court or tribunal must… decide for itself whether deportation in advance of the appeal would breach the applicant’s [ECHR] rights. There is no doubt that, in making that decision, it must assess for itself the proportionality of deportation at that stage.” (at [43]).

However, Lord Wilson emphasised the potential effect of a section 94B certificate in generally obstructing an appellant’s ability properly to present his appeal, setting out the procedural difficulties that out-of-country appellants may face.

He referred to the challenge of obtaining, instructing and taking advice from effective representation.

He referred to the difficulties in dealing with probable “insurmountable difficulties” in obtaining supporting professional evidence, e.g. of an independent social worker who can speak to the close, active and important nature of the family relationships. Lord Wilson said (at [74]), “… a report compiled in the absence of the social worker’s direct observation of the appellant and the family together is likely to be of negligible value”.

Lord Wilson recognised the potential difficulties in giving oral evidence where that was necessary – and he was unpersuaded that a tribunal would usually be able properly to consider the article 8 assessment without oral evidence from the appellant himself. In support of that last proposition, he quoted (at [62]) a passage from the determination of the Blake J and Upper Tribunal Judge Goldstein in Secretary of State for the Home Department v Gheorghiu [2016] UKUT 24 (IAC) at [22], where they said that, where the central issue in a case is whether the risk posed by an offender has been reduced to an appropriate level, “the experience of immigration judges has been that hearing and seeing the offender give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact-finding process…”.

At [67] and following, Lord Wilson also acknowledged the difficulties in giving evidence by video-link, e.g. the potential loss of judicial control, the practical problems in dealing with bundles and less than perfect video-link facilities, and the challenge to the court or tribunal of assessing the demeanour of a witness on screen. The difficulties of assessing credibility remotely were a particular concern expressed by Sedley LJ in R (BA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 119; [2009] QB 686 at [21]. Nevertheless, in Kiarie & Byndloss, Lord Wilson accepted (at [67]) that:

However, he was also sceptical about the realistic availability of effective video-links to enable an appellant to give oral evidence through that medium (see [68] and following) – in his concurring judgment, Lord Carnwath of Notting Hill JSC was perhaps less so (see [103]).

In terms of legal analysis, in performing the conventional human rights exercise, Lord Wilson considered that each of the appellants before the court had established that the certificate represented a potential interference with his rights under article 8, thereby imposing a burden on the Secretary of State to establish that that interference was justified and proportionate; that it was rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that deportation struck a fair balance between the relevant rights under article 8 and the public interest. He found that the Secretary of State had failed to establish that it was fair, or that the relevant article 8 rights would be protected (see [78]). Lord Carnwath effectively made the same findings on that point (see [105]). Given that there was no evidence that the Secretary of State had considered at all the practical problems involved in preparing and presenting a case from abroad, on the basis of the analysis adopted, that conclusion was perhaps not surprising. Thus, in each case before the court, the section 94B certification, which deprived the appellants of an in-country right of appeal that was necessary for the effective protection of their article 8 rights, was unlawful.

At [57], Lord Wilson referred to a particular point which, he considered, made any analysis contrary his own particularly unattractive, namely that, by certifying a claim and deporting an individual pending his out-of-country appeal, the Secretary of State would cut away his integration into UK society and rupture his relationships here, thereby weakening his claim that deportation would breach his article 8 rights. This matter – which goes beyond the mere procedural – was, he said, of some moment; because the claim had not been certified under section 94(1) as clearly unfounded, and it must therefore be taken at that stage as at least arguable. Significantly to weaken an arguable article 8 case, he said, required some considerable justification (see [58]).

Many appeals, in the tribunals and in this court, were stayed pending the ultimate outcome of Kiarie & Byndloss. Now that that is available, no doubt in most cases those stays will be lifted, the parties asked to make submissions on the effect of those judgments on their particular case, and then the court or tribunal will be in a position to give appropriate directions. Where the proposed deportees are still in the UK, that is relatively straightforward.

However, in some cases where a human rights claim was certified under section 94B, the claimant was deported from the UK in the period before the Supreme Court judgments were handed down in Kiarie & Byndloss, on the basis of the principles that had been set out by the Court of Appeal.

The applicants before me fall into that category. Both Mr Nixon and Mr Treacy are Jamaican nationals but, following a substantial period of residence in the UK, each was served with a deportation order after being convicted of criminal offences. The response of each was the same – a human rights claim that to deport him would be in breach of article 8 – and, in each case, that claim was not only refused but certified under section 94B. In each case, permission to proceed with judicial review of the decision so to certify was refused by the judge below, and the applicant now seeks permission to appeal against that order. There are other applications before me, but they can best be dealt with as they arise in the context of each case.

In the meantime, the First-tier Tribunal has set down a series of (currently) seven out-of-country appeals for hearing in the next three months, listed separately, but each case having to deal with the current position with regard to (e.g.) the availability of video facilities and the provision of facilities free of charge to enable an appellant to provide instructions to his representative and participate in their appeals (including giving evidence by video-link) if they wish to do so, in various countries including Jamaica. Although not formally test cases, it is hoped that these will test the effectiveness of appeals conducted from abroad, and heard in those circumstances.

It is to the individual cases that I now turn.

Paul Nixon was born on 10 July 1968. He is a Jamaican national.

He entered the UK on 11 January 1999 on a six-month visitor visa. He overstayed. On 17 July 1999, he married Sandra Thomas, a British citizen. On 8 December 1999, he made an out-of-time application for leave to remain as the spouse of a British citizen. That was refused on 16 July 2003. An in-country appeal was made, but was withdrawn on 30 April 2005.

On 8 August 2004, Mr and Mrs Nixon had a son, J-Kwon, the Second Applicant. He too is a British citizen.

On 19 October 2005, Mr Nixon was granted three-years’ discretionary leave to remain on human rights grounds outside the Immigration Rules.

On 14 June 2006, Mr Nixon was cautioned for common assault. That month there was also some form of altercation between Mr and Mrs Nixon, during which (Mrs Nixon indicated) Mr Nixon had told her that the marriage was merely one of convenience and he did not want her, and he held a gun to her neck. Afterwards, Mrs Nixon wrote to the Secretary of State saying that she and Mr Nixon were no longer together, and she no longer supported his application for leave to remain. As a result of the incident, it seems that Mr Nixon was arrested, and held on remand for about four months, but that the matter did not proceed to trial.

On 19 November 2008, Mr Nixon applied for further leave on article 8 grounds, but on 7 December 2009 that application was rejected by the Secretary of State with no right of appeal.

On 20 July 2010, and again on 19 August 2010, the Secretary of State served a notice of decision to remove Mr Nixon. He appealed the later decision; but, in a determination promulgated on 7 October 2010, First-tier Tribunal Judge Rose refused the appeal, on the basis that Mr Nixon did not have a continuing relationship with his wife and had had no significant degree of contact with this son since 2006 (see [19] and following). The judge found that neither Mr Nixon nor his wife was a reliable witness; Mr Nixon did not live with his wife; and Mr Nixon did not have regular contact with his son, nor did he play a significant part in his life (see [45]-[46]). Permission to appeal further was refused.

On 13 May 2011, Mr Nixon again applied for leave to remain on human rights grounds, an application which was refused on 16 November 2011. On 27 July 2012, Mr Nixon applied for a reconsideration of his application, which was refused on 24 September 2013. That same day, a further decision to remove Mr Nixon was made. Mr Nixon appealed on human rights grounds.

By this time, Birmingham City Council Social Services were involved with the family, Mr Bedford says (and I accept) on child protection grounds. For the purposes of the appeal, the tribunal received no report on J-Kwon – although the tribunal judge considered such reports must have been available – but there was in evidence three emails from a senior social worker involved, dated August and September 2013. These said that the social services had been told by Mrs Nixon that Mr Nixon did not live with her, and they were not a couple; and, at a child protection meeting, they were told by her that she and Mr Nixon had separated six years previously, and told by J-Kwon that he did not see his father much because he lived in London. The senior social worker also said that, when she had visited Mrs Nixon’s home in June 2013, there was no evidence that Mr Nixon lived there. Children’s Social Services closed their file in relation to J-Kwon on 15 July 2014; and the file in relation to Family Support was closed on 8 December 2014. That was the last contact with Social Services, who have confirmed that there have been no welfare issues in respect of Mr Nixon’s son since then.

In a determination dated 24 March 2014, First-tier Tribunal Judge Pacey considered that, in the absence of reports from social services, which they must have, the evidence from the emails was of no probative value. Mrs Nixon had said in evidence that she had told the social services the truth, but they had got the wrong end of the stick: she had merely said to them that she had told the police in 2006 (when they were looking for Mr Nixon) that not living with her, but was living in London.

Having heard, amongst others, Mr Nixon, Mrs Nixon and J-Kwon give evidence, Judge Pacey accepted that, since the 2010 determination, Mr and Mrs Nixon had reconciled, and were now in a genuine and subsisting relationship; and she allowed the appeal. The Secretary of State’s appeal was dismissed by the President of the Upper Tribunal, McCloskey J, on 24 July 2014.

However, in the meantime, Mr Nixon had committed serious assaults on Mrs Nixon and her daughter. The precise date of the incidents is not clear from the documents, but I understand they were in April 2014, i.e. the month after Judge Pacey had found that Mr and Mrs Nixon had reconciled and were in a genuine and subsisting relationship. The assault on Mrs Nixon was particularly serious, involving deliberate humiliation by stripping her, before throttling her three times, causing her to believe she was going to be killed and to be incontinent. Whilst Mrs Nixon was in hospital following this attack, her daughter visited her. She contacted the police; but, when they arrived, Mr Nixon assaulted her with a view to effecting an escape. On 5 August 2014, Mr Nixon was sentenced to 12 months’ imprisonment for assaulting his wife causing her actual bodily harm, and two months concurrent for common assault of his step-daughter.

On 15 December 2014, Mr Nixon was served with a notice of intention to make a deportation order; to which he responded on 8 January and 5 February 2015, opposing deportation on article 8 grounds. These were treated as a renewed human rights claim, and an application to revoke the deportation order on human rights grounds. The letter of 5 February 2015 enclosed copies of two undated letters, purporting to have been written by Mrs Nixon and J-Kwon respectively. Whilst neither contained details, Mrs Nixon’s letter said that she suffered from anxiety and depression; and, although their relationship had had its “ups and downs”, she was still willing to support her husband, whom she loved, and she needed him to help her bring up their son. Whilst the letter said that J-Kwon missed his father, it did not suggest that there had been any contact between Mrs Nixon or her son and Mr Nixon since the assault in April of the previous year. This is not surprising given that it seems Mr Nixon was the subject of a court order – a restraining order or licence condition – prohibiting him from contacting Mrs Nixon. J-Kwon’s letter said that he loved his father, and wanted and needed his support. The letter said that his mother, father and he “used to do so many things together”; Mr Nixon “used to take [him] to school every day”; and he wanted to see him again. However, again, it did not suggest that there had been any contact between them since April 2014.

On 14 February 2015, Mr Nixon completed the custodial part of his sentence, but remained in immigration detention.

On 25 March 2015, his article 8 claim was refused and the decision to deport maintained, on the basis that, since the 2014 determination, he had assaulted his wife and there was no evidence of a subsisting relationship between him and his wife or son, except the letters from each to which I have referred above (paragraph 33), about which the decision-maker had credibility concerns. He considered they were insufficient to show any continuing relationship. The decision-maker said that there was no evidence that Mr Nixon had maintained contact with his wife or son since his prison sentence; and he did not accept that Mr Nixon had a genuine and subsisting relationship with his wife, or his son in the sense that he had “a significant and meaningful positive involvement in [his son’s] life with a significant degree of responsibility for the child’s welfare”. He did not consider that there was any evidence that his son’s welfare would be compromised by his (Mr Nixon’s) deportation; and, in any event, it would not be unduly harsh for Mrs Nixon or their son to relocate to Jamaica or continue to live in the UK without Mr Nixon. Family separation had been authorised by the chief senior case worker after consultation with social services.

At the same time as that refusal was served, Mr Nixon was served with a deportation order and a section 94B certificate. The decision letter indicated that Mr Nixon had a right of appeal against the decision not to revoke the deportation order on human rights grounds, but (it said):

On 5 May 2015, solicitors for Mr Nixon and his son sent a letter before action on behalf of each, which focused upon the decision to certify and the absence of any separate right of appeal for J-Kwon. The Secretary of State treated the letters as an application for reconsideration of the 25 March 2015 decision; which was itself refused on 18 May 2015. On 26 July 2015, Mr Nixon was served with directions for removal, scheduled for 16 August 2015.

In the meantime, on 29 June 2015, Mr Nixon and his son applied for judicial review of the 25 March 2015 decisions to maintain the decision to deport Mr Nixon and to certify his human rights claim. J-Kwon’s application was made on the basis that (i) section 82 of the 2002 Act was incompatible with his rights under article 6 of the ECHR, in that it denied him a right of appeal and/or a fair trial of his human rights claim that Mr Nixon’s deportation unlawfully interfered with his right to respect for family life with his father; and (ii) because of the section 94B certification, J-Kwon would lose the chance to benefit from an independent social services report based upon investigation of the family’s interactions together at home in the UK, and otherwise prevent him from adequately preparing his article 8 case by removing his principal witness (his father) from the jurisdiction.

The application was supported by a statement by Mrs Nixon dated 24 June 2015, which confirmed that the earlier undated letters were indeed written by herself and her son. The statement described her relationship with Mr Nixon as “tumultuous”; but she wanted him to be a part of her life and that of her son, and they had suffered very much since he had been in prison. She had not visited him in prison, or since because it was a term of his licence that they had no contact. J-Kwon had not visited him either. Mr Nixon telephoned her twice or three times a week, and spoke to both her and their son. That was (she said) the only thing that kept them going until they could be together as a family again. Mrs Nixon said that she had forgiven her husband for the attack on her; and that she felt that she provoked him, and even retracted her statement through a solicitor (although the prosecution of her husband continued anyway). She said she suffered from depression, and could not work because her depression was, then, very bad. There was no medical report, or other medical evidence, in relation to her condition; although she provided evidence that she had been on Income Related Employment Support Allowance since July 2014. That is the most recent evidence from Mrs Nixon. There is no more recent evidence from either Mr Nixon or J-Kwon.

On 10 July 2015, I stayed that claim pending the outcome of Kiarie & Byndloss in the Court of Appeal. On 7 August 2015, the removal directions were cancelled pending the outcome of the claim; and, on 13 November 2015, Mr Nixon was granted immigration bail, subject to reporting conditions. On 22 December 2015, I ordered Mr Nixon to serve amended grounds of challenge, following the Court of Appeal’s judgment in Kiarie & Byndloss. Amended grounds, which focused exclusively on the application by J-Kwon, were filed on 15 January 2016.

On 15 February 2016, permission to proceed with the judicial review was refused by Jay J on the papers, with a direction that renewal should not be a bar to removal. Mr Nixon applied to have the refusal reconsidered at an oral hearing. On 6 April 2016, he was detained pending removal. On 5 May 2016, His Honour Judge Cooke sitting as a Judge of the High Court stayed removal pending the outcome of the renewal application. However, at an oral hearing on 28 July 2016, Phillips J refused a stay of the claim pending the outcome of Kiarie & Byndloss in the Supreme Court; he refused the renewed application for permission to proceed; by affirming the earlier Order of Jay J, he refused a stay on removal; and he refused permission to appeal to this court. There is no transcript of any part of that hearing, although Counsel who appeared for each party have helpfully prepared an agreed note of the judgment.

On 18 August 2016, directions were served for Mr Nixon’s removal from the UK to Jamaica on 7 September 2016 at 6.30am.

Mr Nixon and J-Kwon sought to appeal Phillips J’s order by way of Appellant’s Notice issued on 5 September 2016, although the grounds of appeal related only to J-Kwon’s claim. Permission to appeal was refused on 6 September 2016 by Hamblen LJ, who also refused a stay on removal. He directed that renewal of the application should be no bar to removal. Mr Nixon was removed to Jamaica on 7 September 2016 in accordance with the removal directions.

From Jamaica, Mr Nixon lodged an out-of-country appeal from the 25 March 2015 decisions to refuse his human rights claim and not to revoke the decision to deport him. That appeal was out-of-time, but, as I understand it, an extension of time has been granted by the First-tier Tribunal. The hearing was originally set down for hearing on 17 August 2017, but was adjourned at Mr Nixon’s request. It is now set down for hearing on 6 March 2018.

On 20 October 2017, in the light of the Supreme Court judgments in Kiarie & Byndloss handed down on 14 June 2017, Mr Nixon and J-Kwon issued an application to re-amend their grounds of appeal to three new grounds drafted by Mr Bedford. They now seek permission to re-amend, and permission to appeal on those grounds.

Ground 1 is in essence an aggregation of the grounds refused by Hamblen LJ. As the main thrust, Mr Bedford submits that J-Kwon’s article 8 rights are engaged by the deportation order; and his right to enforce his claim that he should not be separated from his father by the latter’s deportation is a civil right protected by article 6. However, section 82(1)(b) of the 2002 Act (see paragraph 6 above) denies him any right of appeal against the Secretary of State’s refusal of his father’s claim that his deportation will breach article 8, because the right of appeal is restricted to a person whose human rights immigration claim has been refused by the Secretary of State. J-Kwon thus has no effective remedy in respect of the alleged breach of his (as opposed to his father’s) article 8 rights. He is entitled to his own remedy. On the basis of section 82, he would be denied a full merits-based appeal, his remedy being restricted to judicial review on conventional public law grounds. On behalf of J-Kwon, Mr Bedford seeks a declaration that section 82 is incompatible with his ECHR rights under articles 6 and 8 of the ECHR; or alternatively, as outlined in his oral submissions, a discrete remedy for J-Kwon in the form of a judicial review including full fact finding on the basis of oral evidence. Mr Bedford submits that this is not only an important point of principle, but it is also of considerable practical importance because, unlike his father, J-Kwon as a child is likely to obtain legal aid for his independent claim, including funding for an independent social worker report.

Phillips J rejected this submission. In my view, he was right to do so. I do not consider this ground is arguable.

The substantive point made was dealt with – in my view, determinatively – in the opinion of Lord Brown of Eaton-under-Heywood (with whom the rest of the Appeal Committee of the House of Lords agreed) in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] 1 AC 115. The claimant was a Sierra Leone national who was granted leave to enter the UK as a student. Various family members also resided in the UK. Upon expiry of his leave to remain, he applied for asylum and leave to remain on article 8 grounds. Both applications were refused. He appealed to an Immigration Adjudicator, who allowed the human rights appeal brought under section 65 of the Immigration and Asylum Act 1999 (the predecessor to section 82 of the 2002 Act, which it was common ground was not materially different) on the basis that the claimant’s family were tight-knit, and his removal from the UK would involve a disproportionate interference with the family as a whole, in breach of article 8. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, on the basis that section 65 required the adjudicator to consider only the impact the proposed removal would have upon the claimant and not the effect it would have on other family members. That determination was upheld in the Court of Appeal ([2005] EWCA Civ 828), but reversed by the House of Lords.

Giving the only substantive speech, Lord Brown accepted the submission that members of a family enjoy a single family life, and whether removal would interfere disproportionately with it must be looked at by reference to the family unit as a whole and the impact of removal upon each family member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims (see [20]-[21], and [41]-[44]). Whilst acknowledging the risk that a claimant might make claims relating to other family members with which they might not agree (see [42]), Lord Brown continued (at [43]):

Mr Bedford submitted that Beoku-Betts did not deal with the issue he has raised in this case, i.e. whether a family member in the position of J-Kwon has a right to a remedy discrete from the right of appeal given to another family member by section 82. Rather, it dealt with the different issue of whether the article 8 rights of other family members could and should be taken into account in a section 82 appeal. A section 82 appeal would be ineffective to safeguard J-Kwon’s own rights and interests because (i) he was not notified of the stage one deportation order or the deportation order itself, and (ii) in the absence of legal aid and/or notice of the right to apply for exceptional funding, he was unable to ensure his interests were adequately protected by his father. An out-of-country appeal would be particularly ineffective, as J-Kwon would be prevented from adequately preparing his case because his principal witness (his father) had been removed from the jurisdiction.

One aspect of these submissions – that, by the certification of his father’s human rights claim and his father’s removal, J-Kwon has lost the opportunity to obtain an independent social services report on his circumstances with his father based on a thorough investigation of the family’s interactions at home in the UK – concerns the adverse impact of certification on the article 8 rights of the family as a whole, which I deal with below (see paragraph 81). With regard to the balance of the submissions, I do not consider there is any force in them.

In the passage I have quoted from Beoku-Betts, Lord Brown emphasised that there is only one family life; and he indicated that the article 8 rights of all relevant family members should be taken into account in one claim, rather than a multiplicity of claims. In that exercise, there is not only a statutory duty to have regard to the need to safeguard and promote the welfare of children who are in the UK (section 55 of the Borders, Citizenship and Immigration Act 2009), but it is more than clear that, in considering the article 8 rights of all relevant family members, those of children are of particular, primary importance (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4); [2011] 2 AC 166).

As Baroness Hale JSC said in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25; [2013] 1 AC 338 at [82], properly to take into account children’s interests, the court will need to have some information about them. She continued:

It is well-established (indeed, trite) law that, if an appellant wishes to advance a case that a child’s welfare and/or article 8 rights will be jeopardised by his removal, the burden of making out that claim rests upon him. In the usual case, as Baroness Hale indicated in HH, the appellant will be a parent or step-parent of the child, and, if there is indeed a family life enjoyed together by the appellant and the child, the appellant will be in a good (and, usually, the best) position to put forward information about the impact that his removal will have upon the child, including of course information from any other parent and the child himself. As Baroness Hale indicated, I accept that there may be cases in which, unusually, an appellant is unable to provide adequate information for the court’s purposes, and the court will have to consider whether further steps with regard to the children’s interests (e.g. further investigation) are required to ensure that the child’s rights, interests and welfare are properly protected. However, those cases are likely to be rare. Generally, a relevant child’s interests, and his rights to family life, will be adequately and effectively protected by the availability of a section 82 appeal right to another member of his family unit as conducted by that family member.

In this case, there is no evidence that Mr Nixon cannot put forward any information and evidence he wishes to rely upon in respect of his contention that his deportation has and will interfere disproportionately with that article 8 rights of him and his relevant family members (including his son) by reference to the family unit as a whole and the impact of removal upon each family member (including his son). Nor is there any evidence to support the suggestion that anything that J-Kwon might wish to rely upon, as supporting his rights and interests, cannot and will not be adduced by his father in the appeal. Indeed, the evidence suggests the very contrary. J-Kwon (who is now 13 years of age) is acting through his mother and litigation friend, Mrs Nixon. In her statement of 24 June 2015, she sets out how J-Kwon misses his father, and the effects his father’s absence has had upon him. In his own undated letter to which I have referred, J-Kwon himself has dealt with such matters. Both Mrs Nixon and J-Kwon gave evidence in support of Mr Nixon’s human rights appeal before Judge Pacey in 2014; and they will both be able to give live evidence at any future human rights appeal hearing. There is nothing to support the suggestion that any documentary or other evidence that supports their particular interests will not be adduced at such a hearing. I deal with the issue of independent social worker’s evidence below (see paragraph 81): but there is no evidential foundation for the suggestion that any material evidence that might be obtained from any social worker has not been obtained simply because of lack of public funding.

In refusing permission to proceed, Phillips J said (at paragraph 9 of the agreed note) that, so far as the Secretary of State’s decision to refuse the article 8 claim was concerned, “the attempt to introduce an attack by [J-Kwon] by way of collateral challenge adds nothing [to] the judicial review claim brought by [his father]”. The judge was entitled to draw that conclusion; indeed, on the evidence, I agree with it as the only reasonable conclusion that could have been drawn. In my view, J-Kwon’s application for judicial review stands or falls with that of his father.

For those reasons, I do not consider any part of Ground 1 is arguable.

Grounds 2 and 3 can be taken together. Ground 2 is that Phillips J erred in refusing the application for permission to proceed with the judicial review challenge to the section 94B certificate, because, following Kiarie & Byndloss, that certificate has been shown to be unlawful. Ground 3 does not appear to me to be an entirely separate ground, but rather a further remedy for the breach asserted in Ground 2: on the basis that the certificate was unlawful, it seeks damages on behalf of both Mr Nixon and his son for the breach of their human rights.

In respect of these grounds, the written statement of facts and grounds are somewhat diffuse, but were crystallised and made more coherent in Mr Bedford’s helpful oral submissions.

Although the judicial review sought to challenge the Secretary of State’s decisions to reject Mr Nixon’s human rights claim and maintain (i.e. not to revoke) the decision to deport him, it is uncontentious that Mr Nixon has a right of appeal against those decisions. The real issue raised in Grounds 2 and 3 is whether the Secretary of State acted lawfully in certifying Mr Nixon’s human rights claim under section 94A, with the consequence that he could only pursue his appeal out-of-country. Certification would be unlawful if it deprived the appellants of an in-country right of appeal that was necessary for the effective protection of their article 8 rights, or if it otherwise had an unfair and disproportionate effect upon those article 8 rights.

Mr Bedford submits that the Secretary of State – and, later in the Administrative Court, both Jay J and Phillips J – clearly erred in the way in which they dealt with the lawfulness of the section 94A certificate, because they adopted the approach of the Court of Appeal in Kiarie & Byndloss, which was disapproved by the Supreme Court. Although he accepts that each case depends upon its own facts and circumstances, Mr Bedford submits that, following Kiarie & Byndloss in the Supreme Court, it is clear that the certificate in this case was – or, for the purposes of the application for permission to appeal, was at least arguably – unlawful. Permission to amend the grounds of appeal, and permission to appeal, should thus be granted. Furthermore, although there is no written application, Mr Bedford applies for a mandatory order that the Secretary of State returns Mr Nixon to the UK at her own expense, which, he contends, is required to enable Mr Nixon effectively to pursue his judicial review and any subsequent in-country appeal (and, reverting briefly to Ground 1, to enable his son effectively to pursue his own discrete article 8 claim).

In support of these various applications, Mr Bedford relied upon a number of matters, which to a large extent reflect the concerns expressed by Lord Wilson in Kiarie & Byndloss (see paragraphs [13]-[15] above).

In terms of procedure, Mr Bedford submitted that the section 94B certificate – with its consequence of denying him an in-country right of appeal – had obstructed, and continues to obstruct, Mr Nixon’s ability properly to present both his appeal to the tribunal and his judicial review claim, the main focus of which is now the inadequacy of an out-of-country right of appeal to the tribunal. It hampered his ability to obtain, instruct and take advice from effective representation. He had been unable to obtain a report from an independent social worker, because, as a result of his absence, direct observation of him and his family together has been impossible. Such observation could take place, and consequent report prepared, if he were returned to the UK now. He is sceptical about the availability of video-link facilities in Jamaica; and, even if they are available, Mr Nixon’s credibility is in issue, and he will be at a disadvantage if his credibility is considered without the tribunal having any proper opportunity of assessing his demeanour, manner and sincerity at a live hearing as opposed to merely on screen.

Furthermore, in addition to these procedural matters, Mr Bedford submitted that Mr Nixon’s deportation in September 2016, with its resulting separation from his wife and son, had resulted in the disruption of his and their family life and article 8 rights. His deportation was in breach of their article 8 rights, and that breach is continuing. To bring that breach to an end, as well as to avoid the continuing procedural harm to which I have referred, Mr Bedford submitted that I should make a mandatory order requiring the Secretary of State, at her expense, to return Mr Nixon to the UK.

In response to the procedural matters relied upon, Miss Giovannetti submitted that the evidence before the court below and this court simply did not show that an out-of-country right of appeal was ever, and is now, an inadequate protection of the article 8 rights of Mr Nixon and his family. There was no evidence that Mr Nixon had had any difficulties in instructing his legal team. He had apparently made no attempt to obtain an independent social worker report whilst he was still in the UK, and he had 18 months to do so between the challenged decision in March 2015 and his deportation in September 2016. In that time, there had been some social services intervention in respect of the family as I have described (see paragraph 29 above), but no attempt appears to have been made to obtain any reports made by them, although Judge Pacey considered such reports must exist. Of course for part of that 18 months, it seems that Mr Nixon was prohibited by court order from contacting his wife; and there is no evidence that there was any active relationship between Mr Nixon on the one hand, and his wife and son on the other, after he was sent to prison for assaulting her in August 2014, the most recent available evidence being that of Mr Nixon dated 24 June 2015. That confirms that they had not seen each other – and Mr Nixon had not seen his son – since he was imprisoned nearly a year before. Even if he were to be returned to the UK now, it is uncertain what, if any, access he would have to J-Kwon. Mr Nixon has not indicated that he wishes to give oral evidence in support of his appeal; but, if he does wish to do so, there are facilities in place for him to give video-link evidence from Jamaica – and the Secretary of State has made an application for video-link evidence to be received at the 6 March 2018 hearing.

In the circumstances, Miss Giovannetti submitted that the application for permission to amend, and the renewed application for permission to appeal, should be refused. The out-of-country appeal is an adequate protection of rights of Mr Nixon and his family members, and it should be allowed to run its course at the First-tier Tribunal hearing fixed for 6 March 2018. Alternatively, the applications should be adjourned until the hearings before the First-tier Tribunal that have been set up to test the adequacy of video-link facilities with (amongst other places) Jamaica to which I have referred (see paragraph 19 above).

In particular, Miss Giovannetti opposed the application that the Secretary of State should be required to return Mr Nixon to the UK now, so that he can conduct any continuing proceedings in relation to the judicial review and/or his appeal to the tribunal against the 25 March 2015 decisions from the UK. Even if the section 94B certification in Mr Nixon’s case was unlawful – which she did not concede – the court has a discretion as to whether to make a mandatory order requiring the Secretary of State to return him; and, Miss Giovannetti submitted, that discretion should be exercised in not making such an order.

In support of that contention, she particularly relied upon two authorities of this court, R (CM (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 160 and R (YZ (China) v Secretary of State for the Home Department [2012] EWCA Civ 1022.

In CM (Jamaica), the Secretary of State refused an application by the appellant, whom he proposed to deport, to revoke the deportation order; and refused to treat his submissions as a fresh claim. The appellant thought that he could only appeal against the refusal to revoke out-of-country; but he applied for judicial review of the refusal to treat the submissions as a fresh claim, because, as the law then stood, an in-country right of appeal only lay against submissions that amounted to a fresh claim. The application was refused. An application for permission to appeal to the Court of Appeal was refused on the papers. The appellant was then deported to Jamaica; following which the Court of Appeal handed down judgment in R (BA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 119; [2009] QB 686, later affirmed by the Supreme Court ([2009] UKSC 7; [2010] 1 AC 444), establishing that a person in the position of the appellant did have an in-country right of appeal even if the new submissions did not amount to a fresh claim. That led to an amendment of the appellant’s grounds of appeal to add a ground that the Secretary of State – and the first instance judge – had proceeded on the erroneous basis that there was no in-country right of appeal.

The main argument at the substantive appeal hearing was as to whether the court should make an order requiring the Secretary of State to use her best endeavours to return the appellant to the UK to enable him to pursue an in-country right of appeal. Jackson LJ, giving the only substantive judgment, rejected that argument, on the basis that (i) the appellant could have asserted an in-country right of appeal and, had he done so, he would have succeeded in establishing the right as did the appellants in BA (Nigeria); (ii) the deportation was lawful, being carried out pursuant to a decision to deport that had not been the subject of an appeal; and (iii) although pursuing an appeal from Jamaica would be more difficult than pursuing it from the UK, he would be able to pursue an effective appeal from Jamaica: the appeal would turn on mainly documentary evidence and the appellant could participate by video-link.

In YZ (China), the appellant was a Chinese national who was deported following a decision of the Secretary of State refusing to revoke the deportation order and certifying the case under section 96(2) of the 2002 Act, on the basis that there was no satisfactory reason for the human rights matter raised not to have been raised in an appeal against an earlier decision. Certification, again, precluded an in-country appeal. However, after removing the appellant, the Secretary of State agreed to withdraw the certificate and reconsider the matter, but declined to return the appellant to the UK whilst she did so and while any appeal ran its course. The appellant applied for an order requiring the Secretary of State to return him, on the basis that under the statutory scheme he was entitled to an in-country appeal, and this created a presumption in favour of directing his return to the UK as the only way in which full effect could be given to the statutory scheme. Sir Michael Harrison sitting as a Deputy High Court Judge refused to exercise his discretion to order the appellant’s return.

Having reviewed the authorities, including CM (Nigeria) and various cases in which a mandatory order for return was ordered, Richards LJ (with whom Lloyd and Elias LJJ agreed) set out the appropriate approach. He proceeded on the assumption that the relevant certificate was, indeed, unlawful. He continued (at [49]):

In considering the facts of the appeal before him, Richards LJ said this:

Of course, these two cases now have to be read in the light of Kiarie & Byndloss, which emphasised the practical difficulties that might face an appellant conducting an appeal from abroad; but I consider the approach adopted by Jackson and Richards LJJ to applications for the return of deportees who have been removed on the basis of a certificate precluding an in-country appeal still holds good. Indeed, many of the matters upon which they relied were also emphasised by Lord Wilson in Kiarie & Byndloss.

In particular, the following propositions can be derived from the authorities.

Where the Secretary of State rejects a human rights claim of a proposed deportee, an out-of-country appeal will not always be ineffective in protecting the human rights involved. Whether it will be effective will depend upon the facts and circumstances of the particular case.

Where the Secretary of State precludes an in-country appeal, by (e.g.) certifying a human rights claim under section 94B, that is not necessarily unlawful; but it is sufficient to establish a potential interference with the proposed deportee’s article 8 rights, such that a burden is imposed on the Secretary of State to establish that that interference is justified and proportionate, and that removal from the UK without waiting for an appeal to run its course strikes a fair balance between the adverse effect of deportation at that stage on relevant rights under article 8 and the public interest. In particular, the Secretary of State will need to show that an out-of-country appeal will be effective to protect the article 8 rights in play.

Where an individual is deported on the basis of an unlawful certificate, the court has a discretion as to whether to make a mandatory order against the Secretary of State to return him to the UK so that he can (amongst other things) conduct his appeal in-country. That discretion is wide, and there is no presumption in favour of return, even where certification is unlawful. The exercise of the discretion will be fact-sensitive. However, when assessing whether it is just and appropriate to make a mandatory order for return of a deportee, the fact that that person has been unlawfully deprived of an in-country appeal to which he is entitled under statute is the starting point and a factor telling strongly in favour of ordering his return.

It will be a highly material consideration if the deportation was lawful or apparently lawful, in the sense that, even if a human rights claim that a deportation order should not be made or maintained has been unlawfully certified, the individual was deported on the basis of a deportation order that was not bad on its face and was not, at the relevant time, the subject of any appeal; and/or an application for a stay on removal had been refused or the court had directed that any further proceedings should not act as a bar to removal. On the other hand, it will also be material if the individual has been removed in the face of a stay on removal, or even if there is an active relevant appeal or judicial review in which the issue of a stay on removal has not been tested.

The extent to which the individual’s appeal will be adversely affected if he is not returned to the UK will also be highly relevant. It will be adversely affected if it is assessed that, if he is restricted to bringing or maintaining an out-of-country appeal, that will be inadequate to protect the article 8 rights of the individual and his relevant family members. The continuing absence of the individual from the UK may adversely affect his ability to present his appeal properly in a variety of ways, for example he may be unable properly to instruct legal representatives; he may be unable to obtain effective professional expert evidence; he may be unable to give evidence, either effectively or at all. If the court assesses that, even if the exercise would be more difficult than pursuing his appeal in the UK, the deportee could effectively pursue his appeal from abroad, that is likely to be finding of great weight and will often be determinative in favour of exercising the court’s discretion not to make a mandatory order for return. On the other hand, if the court assesses that he could not effectively pursue an appeal from abroad, then that may well be determinative in favour of exercising that discretion in favour of making a mandatory order for return.

In addition to these procedural matters, the deportee’s continuing absence from the UK may be a breach of article 8 in the sense that he is deprived from being with his family, and they from being with him, pending the outcome of the appeal. Generally, such a breach will not be irremediable. However, in addition to that being a potential substantive breach of article 8, it may result in his article 8 claim in the deportation case being undermined on a continuing basis, which may be a factor of some importance. These matters too may be relevant to the assessment of whether to make a mandatory order for the deportee’s return.

There is a public interest in deporting foreign criminals – and in not returning foreign criminals who have been deported – although that may be a point of little weight where the relevant individual would have had the right to remain in the UK during the course of his appeal but for an (unlawful) certificate. There is also a public interest in public money not being expended on arranging for returning a deportee to this country to conduct an appeal which could adequately and fairly be conducted from abroad.

I therefore come, at last, to the disposal of the applications in relation to Grounds 2 and 3 that are before me.

In my view, I do not consider that the court’s discretion should be exercised to make any mandatory order requiring the Secretary of State to return Mr Nixon the UK at this stage. On the evidence before me, I do not consider there is any no proper basis for making such an order.

I very much see the force in Miss Giovannetti’s submissions on the merits; but, for present purposes, I accept that, as a result of Kiarie & Byndloss, the approach of the judge below to the lawfulness of the section 94B certificate dated 25 March 2016 was wrong; and I accept that that certificate is at least arguably unlawful. For the purpose of exercising my discretion in relation to a mandatory order in respect of Mr Nixon’s return to the UK – and only for that purpose – I shall proceed on the assumption that it is unlawful.

However, Mr Nixon was nevertheless deported on the basis of a deportation order that was at least apparently lawful. The order was not the subject of any appeal. The Secretary of State had certified Mr Nixon’s human rights claim in accordance with the authorities as they then stood; and on the basis of a string of judicial decisions (most recently that of Hamblen LJ the day before Mr Nixon was deported) refusing a stay on his removal, and indicating that any further proceedings should not be a bar to removal.

There has been a finding of the tribunal that Mr Nixon and his wife did not have any significant relationship, nor did Mr Nixon play any significant part in J-Kwon’s life, in the period 2006-10. It is true that there has also been a subsequent finding that, by 2014, they had reconciled, and Mr Nixon was playing an active part in his son’s life; but there is no evidence that he has seen his wife or son since he was imprisoned for the assault on the former in August 2014. Indeed, the evidence does not suggest any contact after the assault in April 2014. Neither Mrs Nixon nor J-Kwon visited Mr Nixon in prison. Mr Nixon was apparently prohibited from contacting his wife, at least during the period he was on licence. There is no evidence of any contact between them since his removal in September 2016. The amount of contact he would have had had he been in the UK since that date is a matter for conjecture – and a matter upon which I will not speculate – but, unfortunate as that situation might be, it seems to me that any incremental harm to the welfare of J-Kwon and to the family life of Mr Nixon, Mrs Nixon and their son by Mr Nixon not being returned immediately would be negligible.

I am unimpressed by the submission that he is required in the UK so that an independent social worker report can be prepared on the basis of observations of the relationships working in practice. No attempts have apparently been made by Mr Nixon or his advisers to obtain reports prepared by social service in respect of their intervention in the period 2013-14. Mr Bedford submits, with some force, that the crucial issue in the appeal will be whether there was a subsisting relationship between Mr Nixon and his wife, and between Mr Nixon and his son, in the period 2014-16. However, no independent report was prepared, or apparently even considered, by Mr Nixon or his legal advisers in the 18 months between the challenged certification decision in March 2015 and his deportation in September 2016. There is no evidence that Mr Nixon even met his wife or son in that period. There are records of the relationships at that time which will no doubt be put in evidence in the appeal; but it is unlikely that any expert report would be of assistance with regard to the relationships as they were then. There is no evidence as to what contact, if any, there has been between Mr Nixon on the one hand, and his wife and son on the other, since his removal to Jamaica, 15 months ago. Even if Mr Nixon were to be returned now, and even if he were allowed contact with his son, the relationship and any family life they would enjoy are likely to be slow to form or reform, and would be almost entirely new.

Furthermore, whilst I appreciate the burden of proof ultimately lies on the Secretary of State, but the evidence that an out-of-country appeal will be ineffective in protecting the article 8 rights of Mr Nixon and his family members is currently weak. There is no evidence that he is in any way constrained from instructing his legal team. As I have indicated, the crucial issue in the appeal will be whether there was, in the period 2014-16, a subsisting relationship between Mr Nixon and his wife, and between Mr Nixon and his son. Mrs Nixon and J-Kwon will be able to give live evidence at any appeal hearing, as they did before Judge Pacey. Even if Mr Nixon is in Jamaica, the Secretary of State says that video-link facilities will be made available to him, to enable him to give evidence. Video-link facilities are improving; and they are becoming common in many courts and tribunals, even where there are contested evidential issues. Although Mr Nixon’s credibility may be in issue, I am unpersuaded that a tribunal will be unable to assess his sincerity and credibility in respect of that narrow issue from taking his evidence on video-link.

In all the circumstances, I do not consider that justice or fairness demands a mandatory order requiring the Secretary of State to take steps to return Mr Nixon at this stage. Such an order, in my judgment, would be neither appropriate nor proportionate. I refuse the application for an order requiring such steps.

In respect of the applications for permission to re-amend the grounds of appeal and for permission to appeal on those grounds, for the reasons I have given, I refuse permission to re-amend in respect of proposed Ground 1.

In respect of Grounds 2 and 3, although, in my view, Miss Giovannetti’s argument that the appeal in this case and the underlying judicial review are now empty, because an out-of-country appeal is an adequate protection of the relevant article 8 rights – and so I should simply refuse to allow the proposed amendments and permission to appeal – has very considerable force, that is not the course I propose to adopt.

Mr Nixon’s appeal is due to be heard by the First-tier Tribunal on 6 March 2018. Although the Secretary of State has not submitted all of the evidence that she would wish to rely upon if she were required to prove the effectiveness of an out-of-country appeal in Mr Nixon’s case, Miss Giovannetti has put forward a compelling case for there being some optimism and confidence that the steps that the Secretary of State is taking (e.g. to ensure appropriate video-link facilities are available to enable Mr Nixon to give evidence from Jamaica) will be sufficient to render the appeal effective for the purposes of article 8. Indeed, Mr Bedford frankly and with good grace accepts that they may do so; but he is sceptical that, in the event, they will. In the circumstances, he urges me to grant permission to appeal against the refusal of Phillips J to refuse permission to proceed with the judicial review challenge to the section 94A certification – or, as perhaps a better alternative, to grant permission to proceed with the judicial review, and remit the matter to the Administrative Court for it to consider, on the basis of evidence from both parties (including the Secretary of State as to the facilities that are generally available in Jamaica for video-link hearings etc), whether an out-of-country appeal would be effective in Mr Nixon’s case.

However, in the circumstances, I do not consider that it would be sensible or appropriate to grant permission to appeal or permission to proceed with the judicial review of the certificate now. In my view, the clearly better course is to grant permission for Mr Nixon to re-amend his grounds to in the terms of Grounds 2 and 3, and to stay the application for permission to appeal in respect of those grounds until after the First-tier Tribunal has determined Mr Nixon’s appeal and any appeal from that determination has been dealt with. The First-tier Tribunal is, in my view, the more experienced and appropriate forum for the determination of factual issues such as those that arise in this case, notably the nature of the relationship between Mr Nixon, and his wife and son. It is inherently better for that issue to be considered on the basis of the facilities that are in fact made available for this case, as opposed to the Administrative Court conducting the exercise hypothetically, on the basis of general evidence provided by the Secretary of State. As I have indicated, there is reason for some confidence that the First-tier Tribunal will be in a position to conduct an effective appeal. Without falling into the heresy identified by the Supreme Court in Kiarie & Byndloss, it is nevertheless worthy of note that the tribunal will of course be under an obligation to ensure the appeal is effective, and will no doubt take appropriate steps to ensure that it is so.

If the appeal is effective to protect the relevant article 8 rights, then there will be no substance left in this appeal. In the event that the appeal is not conducted so as to protect the relevant article 8 rights effectively – or if Mr Nixon considers that to be the case – then he will be able to return to this court and press for permission to appeal or permission to proceed with the judicial review. By that stage, the cases to which I have referred in paragraph 19 above, that have been set up for the First-tier Tribunal to deal with out-of-country appeals using video-link facilities etc, will also have been determined. This court can then consider permission to appeal, if indeed matters requiring further consideration by this court remain.

For those reasons, on the various applications before me, and subject to any further submissions in relation to the precise form of the order, I propose making the following order:

The Applicants’ application for a mandatory order requiring the Secretary of State to return the First Applicant to the United Kingdom is refused.

The Applicants’ application to re-amend the Grounds of Appeal is refused as to proposed Ground 1, and granted as to proposed Grounds 2 and 3.

The Applicants’ application for permission to appeal in respect of Grounds 2 and 3 is stayed, pending the ultimate outcome of the First Applicant’s appeal to the First-tier Tribunal due to be heard on 6 March 2018.

If the Applicants wish to proceed with the appeal to this court, then they shall, within 21 days of the ultimate outcome of the First Applicant’s appeal to the tribunal referred to above, file an application to remove the stay, together with any proposed amended grounds of appeal and any further evidence/submissions upon which they intend to rely. The Secretary of State shall respond to any such application etc within 21 days thereafter. The matter shall then be referred to Hickinbottom LJ for consideration and any directions.

Further applications are reserved to Hickinbottom LJ, unless expressly released by him.

Mr Tracey was born on 16 October 1996. He too is a Jamaican national.

He entered the UK with his mother on 30 January 1999, when he was two years old. They were removed; but they returned on 25 December 2000, when he was four, his mother having the benefit of a six-month visitor visa. Over the next decade, Mr Tracey (as a dependent of his mother, and on his own behalf) made several unsuccessful applications for leave to remain. However, he and his wider family were given indefinite leave to remain on 15 June 2010.

On 31 October 2004, Mr Tracey (then aged 8) was knocked over by a car, and was seriously injured. He suffered degloving injuries to the left side of his skull and his left ear. However, a CT scan at the time revealed no broken bones, and no brain injury. An independent social worker’s report in 2007 does not suggest that he then had any serious mental health issues, or any learning difficulties. However, a report by a consultant paediatric neurologist who examined him in July 2010 noted that Mr Tracey reported migraneous headaches twice or three times per week, and these were diagnosed as being chronic post-traumatic headache attributed to mild head injury. Otherwise, the examination was unremarkable, and Mr Tracey reported no other symptoms or difficulties, and in particular no psychiatric or psychological symptoms except some behavioural and anger management issues of unknown origin. It reported no difficulties with speech, and indeed referred to Mr Tracey as “an articulate young man”.

In the five-year period from March 2010, when he was 13, Mr Tracey was convicted on 22 occasions of 32 offences, including two for assault, two for fraud, 14 theft offences and five drug-related offences. In that period, on 16 October 2014, he turned 18. On 12 February 2015, he was served with a stage one deportation order on the ground that his deportation would be in the public good in view of his persistent offending. Later, whilst that order was pending, he was convicted a further twice, for a drug-related offence and for interfering with a vehicle.

In response to the 12 February 2015 order, on 22 July 2015 representatives on behalf of Mr Tracey submitted representations as to why he should not be deported, including submissions on article 8 grounds. However, on 19 October 2015, a stage two deportation decision was made; and, on 29 October 2015, a deportation order was served on him, together with a decision letter refusing his claim that his deportation would breach article 8 and with a certificate under section 94B. Paragraphs 70-72 of the letter stated that Mr Tracey had no right to appeal the decision to deport; but he was able to appeal the decision to refuse his human rights claim, although, it said:

On 19 November 2015, authority to detain and remove was given; and Mr Tracey was arrested the following day. He indicated that he wished to claim asylum, sought bail and, by a solicitors’ letter dated 15 December 2015, made further human rights submissions. That letter was written by Mr Tracey’s current solicitors, Chipatiso Associates LLP, who were retained by Mr Tracey that month. Various documents were submitted in support, including the 2007 social worker’s report to which I have already referred (see paragraph 91 above) which, although by then eight years’ old, the covering letter stated identified Mr Tracey’s psychological needs “which still need to be addressed”. Given the age of that report, it is unsurprising that, in the covering letter, the solicitors said:

By 12 January 2016, Mr Tracey had withdrawn his bail application and confirmed that he did not wish to claim asylum; and, on 5 February 2016, the Secretary of State made a further decision maintaining the deportation order, refusing his human rights claim and certifying the claim under section 94B. In that letter, the Secretary of State, having considered all the available evidence, concluded that the removal of Mr Tracey pending the outcome of any appeal would not be unlawful under section 6 of the Human Rights Act 1999 (as being in breach of the ECHR) and would pose no risk of serious irreversible harm (paragraphs 64-66). It specifically concluded that there were no very significant obstacles to Mr Tracey’s integration in Jamaica. The letter records that Mr Tracey was given an opportunity to make submissions as to why an out-of-country appeal would be ineffective, and had given no substantial reasons; and, in any event, other witnesses upon which he wished to rely would remain in the UK, if Mr Tracey wished (or the tribunal wished him) to give oral evidence, he could do so by video-link and he could adequately instruct representatives by telecommunications (paragraphs 56-63). In all the circumstances, it concluded that an out-of-country appeal would be effective in Mr Tracey’s case. On 1 March 2016, removal directions were set for 20 April 2016.

On 11 March 2016, through Chipatiso Associates, Mr Tracey applied for judicial review of both the decision not to revoke the deportation order and the decision to certify his human rights claim under section 94B, on three, interrelated grounds. As a result, the removal directions were cancelled. Given that Mr Tracey had a right of appeal against the decision not to revoke the deportation order on human rights grounds, a particular focus of the judicial review was on the decision to certify. As his first ground, it was contended that the Secretary of State had adopted the wrong certification test: she had considered only whether removal would give rise to a real risk of serious irreversible harm, and not the wider question of whether removal would interfere with Mr Tracey’s article 8 rights. Within that ground lay the seeds of the contention, which formed the focus of the ground by the time the matter reached me, that an out-of-county right of appeal did not provide adequate and effective protection of Mr Tracey’s article 8 rights. Second, it was said that the submissions that had been made to the Secretary of State had established a proper basis for contending that there were very compelling circumstances that outweighed the public interest in deportation. Third, it was submitted that the Secretary of State had failed properly to consider Mr Tracey’s position as a settled migrant, who had been in the UK since he was a young child.

On 26 April 2016, following a video conference hearing at which Mr Tracey was represented by Mr Emezie (as he was before me), First-tier Judge Wellesley-Cole granted Mr Tracey bail on conditions.

However, on 4 May 2016, Upper Tribunal Judge Jacobs sitting in the Upper Tribunal (Immigration and Asylum Chamber) refused permission to proceed with the judicial review and declared the application to be totally without merit. In his reasons, the judge said (i) there was no evidence upon which it would be permissible to find that Mr Tracey would face a real risk of serious irreversible harm if removed to Jamaica pending any appeal against his human rights claim, and (ii) given the legitimate aim of protecting the public from his criminal activity, it would not be disproportionate for Mr Tracey to be removed, him being “young, fit and resourceful” and modern means of communication would allow him to maintain contacts with people in the UK. Judge Jacobs declared the application totally without merit, as no serious contentions had been made on Mr Tracey’s behalf.

Leave to appeal to this court was refused by Upper Tribunal Judge O’Connor on 7 June 2016. On 1 July 2016, he applied for permission to appeal to this court (Appeal No C2/2683/2016 (“the first appeal”)), on what might generously be described as generic grounds, simply contending that Judge Jacobs had failed to give adequate consideration to the grounds of the application and had specifically failed to consider discretely the certification of the application as totally without merit. These were supplemented by a rather loose skeleton argument. This contended that the judge below, in refusing permission to judicially review the certification, erred in focusing exclusively on whether there was “a real risk of serious irreversible harm”, and did not address the broader issue as to whether removal pending the appeal would breach the ECHR and thus section 6 of the Human Rights Act 1999. In addition, it set out, at very considerable length, the merits of why removing him would breach article 8, which concluded with a request that this court allows the appeal and remits the matter to the Upper Tribunal to determine the merits of the judicial review claim at a substantive hearing. The skeleton argument was drafted prior to the hand down of the judgments by the Supreme Court in Kiarie & Byndloss. It refers to that as a then-outstanding matter; but does not submit or even suggest that Mr Tracey’s appeal to the First-tier Tribunal required to be in-country. I will return to those grounds of appeal, as elaborated in Mr Emezie’s oral submissions, shortly (see paragraphs 115 and following below).

However, to continue with the chronology, in mid-June 2016, Mr Tracey was the victim of an incident in which he was stabbed to the chest and arm by an unknown person. On 22 June 2016, he failed to report in compliance with his reporting conditions, and the Home Office sought police assistance to detain him. As I have indicated, the notice of appeal against the decision to certify was lodged on 1 July 2016. The Secretary of State had decided to remove Mr Tracey on Sunday 3 July 2016; and sought police assistance to detain him when he next reported, on 29 June. It is the Secretary of State’s policy to allow 72 hours – in practice, three working days – between serving notice of deportation and deportation itself. Arresting Mr Tracey, and serving the documents on him, on 29 June was considered sufficient notice within the terms of the policy (although, given that 2 July was a Saturday, I am not sure that that was correct). In any event, Mr Tracey did not report on 29 June – he claimed he had been stabbed, which prevented him from doing so – and he was therefore not detained, nor served, until 11.05am on Thursday 30 June 2016. That in any event does not appear to have given him the required notice as indicated by the policy before his flight to Jamaica, which was due to depart on 3 July 2016 at 12.40pm. Mr Tracey was, however, removed on that flight.

Mr Tracey’s solicitors did not seek to rely upon any medical evidence prior to his removal. However, it seems that Mr Tracey did see a consultant psychiatrist on 27 June 2016; and his solicitors had a copy letter from that consultant and a letter from his general practitioner on the same subject matter prior to 1 July 2016. However, they chose not to deploy any of that evidence, by sending it to either the Secretary of State or any court, until 3 July in circumstances to which I shall shortly come.

Mr Tracey in person did make handwritten representations to the Secretary of State at 8.56am on 3 July, just hours before his removal was due. In them, Mr Tracey claimed asylum, and, for the first time, mentioned that he had a child and two further children on the way. That application was considered with great promptness, and was rejected at 10.55am that same day. No criticism has been made of the manner in which that application was considered and refused.

At 12.16pm, Mr Tracey’s solicitors sent the Immigration Enforcement Unit copies of the two letters, from the consultant psychiatrist and Mr Tracey’s doctor, to which I have referred (in paragraph 102 above). By that time, Mr Tracey must have been on the plane, which left for Jamaica on time, at 12.40pm that day, with him aboard.

On 7 July 2016, a further judicial review claim was issued, challenging the detention and removal decisions, on four grounds. One of the grounds was that the deportation was in breach of article 8. That effectively replicated the ground in the first judicial review to which I have referred, which can conveniently be dealt with when I deal with the application for permission to appeal in that case. A second ground comprised a rather unfocused assembly of matters which essentially went to that same point. A third ground was that Mr Tracey was unlawfully detained because there were no lawful grounds upon which he could be removed, i.e. it was dependent upon the other grounds. The remaining substantive ground was that the Secretary of State had acted contrary to her own policy in deporting him without giving him three clear working days’ notice.

On 24 August 2016, at an oral hearing, Upper Tribunal Judge Grubb sitting as a Deputy High Court Judge granted permission to proceed. The substantive hearing came before Roger ter Haar QC sitting as a Deputy High Court Judge.

In his judgment of 30 March 2017 ([2017] EWHC 1327 (Admin), the Deputy Judge found that the relevant deportation documents were served on Mr Tracey at 11.05am on 30 June 2016. That factual finding is not disputed, nor is it disputable. However, having very carefully reviewed all the facts and circumstances, the Deputy Judge found that the fact that it was served “late”, in the terms of the policy, was of no moment; because the ability of Mr Tracey to make representations had not been impeded and there was therefore no denial of access to justice in any sense. He therefore concluded (at [38]) that there had been no breach of the policy. In any event, he found that section 31(2)(a) of the Superior Court Act 1981 would apply because, if Mr Tracey had had an extra day or two between deportation notice and removal, it was highly unlikely that it would have made any difference; and so the court would have been bound to refuse any substantive relief in any event.

Even if he were wrong in respect of those matters, the Deputy Judge considered that Mr Tracey would in any event have an adequate alternative remedy to judicial review, namely an out-of-country appeal, as prescribed by section 94B of the 2002 Act and approved as adequate by the Court of Appeal in Kiarie & Byndloss, which was then the leading authority on the point. In respect of section 94B certification, the Deputy Judge accepted that an in-country appeal might be more satisfactory than one out-of-country, but, he said, “section 94B answers that question so far as this court is concerned” (see [49]).

As the Deputy Judge said, the real thrust of Mr Tracey’s case was a merits attack on the 5 February 2016 decision to refuse his human rights claim and to certify it. In respect of the merits, he said, those could only properly be the subject of an appeal to the First-tier Tribunal.

Mr Tracey appealed against the order of the Deputy Judge ter Haar by way of notice dated 21 April 2017 (Appeal No C4/2017/1134 (“the second appeal”)). He relied upon two grounds of appeal.

First, it was submitted that the Deputy Judge erred in proceeding on the basis that an out-of-county right of appeal was an adequate and effective remedy for Mr Tracey. That challenge is, of course, the subject of the first appeal, and I deal with it below in that context (see paragraphs 115 and following below).

Second, it was contended that the Deputy Judge erred in holding that Mr Tracey was lawfully removed notwithstanding the failure to give him 72 hours’ notice. This was not expanded in Mr Emezie’s oral submissions to me. That was, perhaps, a recognition of the reality that there is no force in that ground.

The 72 hour notice policy is, of course, only a policy. It is not a statutory provision. It is designed to ensure that an individual who is subject to a deportation notice has sufficient time to have access to a legal adviser, ready, willing and able to take prompt instructions and make any representations or challenge, where there are legitimate grounds to do so. It is clear from the Deputy Judge’s judgment that he had that underlying principle well in mind; and he carefully found that the ability of the legal representatives, who had been representing Mr Tracey for some time, to take instructions and act on them, if appropriate, had not been impeded by the short notice. That was a finding of fact open to him to make. It meant that any failure to comply with the policy was immaterial. The Deputy Judge put that in terms of there being no breach of the policy. It may have been better to have said that there had been no material breach; but the result is entirely the same. The ground was not made out. It is not arguable that the Deputy Judge was wrong to have dismissed it.

Therefore, subject to the issue relating to the section 94B certification, I do not consider the grounds in the second appeal to be arguable.

I therefore return to the remaining grounds in the first appeal (see paragraph 100 above). I can deal with four of the grounds shortly. They were not the subject of any oral submissions, and I do not consider any is arguable.

First, contrary to the express written ground of appeal, Judge Jacobs did consider the issue of whether the application was totally without merit as a separate issue, setting out the test he had to apply from Wasim v Secretary of State for the Home Department [2016] EWCA Civ 82 at [17(3)]. His conclusion – that the application was totally without merit – is one to which he was unarguably entitled to come.

Second, it is submitted that Judge Jacobs, in refusing permission to judicially review the certification, erred in focusing exclusively on whether there was “a real risk of serious irreversible harm” and did not address the broader issue as to whether removal pending the appeal would breach the ECHR and thus section 6 of the Human Rights Act 1999. However, that clearly has no merit. The judge considered, separately, the two issues, not only concluding that the Secretary of State was entitled (and, in his view, bound) to find that Mr Tracey would not face a real risk of serious irreversible harm, but also (in paragraph 4) that removal would not be disproportionate. Although the judicial review challenged certification, no positive case was put forward in the grounds of appeal that an out-of-country appeal would not be effective in protecting Mr Tracey’s article 8 rights. The Secretary of State had indicated that video-link facilities would be made available to assist Mr Tracey with an out-of-country appeal; and, despite a request for him to indicate any difficulties in advancing his appeal out-of-country, he had identified none. It is therefore unsurprising that Judge Jacobs did not address that as an issue.

Third, in considering the article 8 issue, Mr Emezie submits that the judge failed to consider the matter with sufficiently anxious scrutiny, because (e.g.) he refers to Mr Tracey as a “fit” man, whereas he has significant mental health issues. However, the medical evidence then available was scant, and even the evidence submitted since is unpersuasive. As Deputy Judge ter Haar said in his judgment, having considered all the evidence, there is “nothing of any great potency to suggest that [Mr Tracey] had any serious mental illness” (see [53]). I am entirely unpersuaded that Judge Jacobs did not anxiously scrutinise all the evidence.

Fourth, nor is it germane that Mr Tracey apparently has an outstanding personal injury claim in this jurisdiction. If and insofar as that claim requires him to enter the UK to avoid a breach of his article 6 rights in that claim, that can (and must) be considered in a separate forum.

That leaves Mr Emezie’s primary ground of appeal in each appeal, as articulated before me orally. It had two limbs.

First, Mr Emezie submitted that Mr Tracey is entitled to an in-country right of appeal, and his removal on the basis of an unlawful certificate cannot result in him being restricted to an out-of-country appeal.

However, I have already dealt with that point: it is answered by Richards LJ in YZ (China) at [49], quoted in paragraph 71 above). Where an individual is deported on the basis of an unlawful certificate, he does not have a right to return to conduct the in-country appeal to which statute entitled him. The court has a discretion as to whether to make a mandatory order against the Secretary of State to take steps to return him to the UK so that he can (amongst other things) conduct his appeal in-country. If the court does not order his return (e.g. because it considers that an out-of-country appeal will effectively protect his article 8 rights), then that individual, despite being deprived of the right to an in-country appeal by virtue of an unlawful certification by the Secretary of State, is left to pursue any appeal out-of-country that he wishes to pursue. Of course, where such an appeal is adequate and effective to protect his human rights, he may suffer inconvenience, but suffers no injustice.

Mr Emezie did not suggest that the court should now make a mandatory order requiring the Secretary of State to return Mr Tracey to the UK. He submitted that the court should give permission to appeal because, in considering the section 94B certification, Judge Jacobs and (insofar as he considered the matter) Deputy Judge ter Haar proceeded on an incorrect basis, i.e. without consideration of the new approach mandated by the Supreme Court in Kiarie & Byndloss. If the appeal against Judge Jacobs’ decision succeeds, and the judicial review of the certification eventually proceeds and succeeds – then Mr Tracey will be able to return and take part in an in-country appeal. He does not seek to return before then.

However, as I have explained, Kiarie & Byndloss does conclude that an out-of-country appeal against a human rights claim in the deportation context cannot be effective. It confirmed that whether such an appeal will be effective, or a breach of the procedural requirements of article 8, will depend upon the circumstances of each particular case. The Secretary of State’s difficulty in Kiarie & Byndloss was that there was no evidence that she had considered the practical difficulties in, and potential undermining effect of, an out-of-country appeal in those two cases. But here, she clearly did. As I have described, at the time of the relevant decision, her decision-maker said that there were facilities available in Jamaica that would enable Mr Tracey to have sufficient access to instruct his representatives, and take advice from them; and for him to play an appropriate part in any appeal, including, if necessary, by giving evidence by video-link. At any hearing, the tribunal would, of course, have an obligation to ensure that his rights were properly protected, and take appropriate action to ensure that they were. I am not saying that the tribunal’s duty under the Human Rights Act 1999 can be relied upon in every case to ensure compliance with articles 6 and 8 of the ECHR. But, in this case, there is simply no evidence that Mr Tracey’s article 8 rights would be adversely affected by his appeal being dealt with out-of-country.

Mr Emezie submitted that there was evidence that Mr Tracey would have particular difficulties using video-link facilities, because of the effects of the road accident he suffered in October 2004 (see paragraph 95 above) which has left him with a speech impairment and learning difficulties. He said that those difficulties were only too apparent in the video-link bail hearing on 26 April 2016, at which Mr Tracey was represented by Mr Emezie. However, there was no evidence at all before either Judge Jacobs or Deputy Judge ter Harr (nor is there any now before me) in respect of that bail hearing or medical evidence indicating what particular challenges there might be in Mr Tracey giving evidence and otherwise participating in an appeal from Jamaica; and certainly no evidence that any speech impediment that Mr Tracey might have would impact more severely on his evidence if given by way of video-link rather than given in person at the hearing.

Therefore, although Judge Jacobs and Deputy Judge ter Harr considered matters prior to the judgments of the Supreme Court in Kiarie & Byndloss being available, on the evidence before me I cannot say that there was any arguably material error in the decisions of either. In my view, Kiarie & Byndloss does not assist Mr Tracey at all. That is sufficient to dispose of the application for permission to appeal on this final ground, by dismissing it.

In any event, in Mr Tracey’s case, the issue concerning the adequacy of a particular type of appeal is in any event hypothetical; because, despite being legally represented throughout, Mr Tracey has not issued – indeed, has not attempted to issue – any notice of appeal against the refusal of his human rights claim. He has not (e.g.) issued an out-of-country appeal on the basis of a protest that he is in fact entitled to contest the appeal in-country, as he could have done. For an out-of-country appeal, rule 19(3) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 requires such notice of appeal to be received no later than 28 days after departure from the UK. Mr Tracey departed on 3 July 2016. The deadline for bringing an appeal was 31 July 2016. Nearly 18 months later, no appeal has been lodged. As I have indicated, in her decision letter, the Secretary of State indicated that video facilities etc would have been made available to ensure that an out-of-country appeal would be effective. There is no evidential basis for suggesting that it would not.

For the reasons I have already given in relation to the applications of Mr Nixon and his son, the tribunal is the more experienced and appropriate forum for consideration and determination of the issues that are raised in such claims as these. It is still, of course, open to Mr Tracey to apply to the First-tier Tribunal for permission to appeal out-of-country out-of-time.

For those reasons, in respect of Mr Tracey, I refuse permission to appeal in both appeals.