AJ v The Secretary of State for the Home Department

“The victim in this case … was a 14 year old child. It is perfectly apparent from the exchange of messages that she was infatuated with you. She spent at least one night at your flat and was then found by police hiding on the stairs outside your flat at 3 o’ clock in the morning the following day.

In my judg ment you made little or no effort to assist the police in recovering the child and returning her to her parents. There is no doubt in my mind that you are the one who is responsible for her SIM card being down the toilet in your flat. The only inference that I can draw from that is that you were afraid that data on it would incriminate you and I do not doubt that that is the case.

… This is a serious offence. T he maximum sentence is one of seven years’ imprisonment. There is, it is fair to say, no evidence of sexua l contact between yourself and [the child] but there is no doubt in my mind that your motive was to groom this child for sexual activity in due course.

You have been convicted on the clearest possible evidence by the jury in my judg ment and shown no remorse for your actions.”

“The appellant had been effectively destitute and homeless since his deportation to Nigeria in 2015. He does not have the appropriate documentation or experience of Nigeria and is unlikely to obtain a job and may suffer degrad ing treatment as a consequence” (paragraphs 24 to 26)

The judge further noted that the appellant was said to have “experienced theft of money and his mobile phone on more than one occasion”. The appellant’s circumstances in Nigeria were said to be “very compelling”.

“The failure of the child’s mother to provide a statement or attend the hearing to give oral evidence does not assist the appellant at all to show that he has a genuine and subsisting relationship with the child. The failure of the appellant to provide a statement to the Tribunal about his relationship with the child also does not assist him.”

“There naturally is no other supporting evidence as regards this. It is claimed that the appellant is homeless and does not have the funding or resources to provide accommodation to him.”

The judge observed tha t the appellant’s mother said the appellant did not have appropriate documentation, an assertion which the judge found “somewhat hard to understand”.

“he has not provided any statement of evidence. I do not accept that it would have been impossible for him to do so. He could have dictated a statement to his mother as she has recorded conversations with him and it could have been transcribed.”

The judge also did not know “the views of the appellant as regards his past offending and the deportation apart from those they have given to me through his own mother”.

“ 60 . The first question is whether an appellant is likely to be legally represented before the tribunal at the hearing of an appeal brought from abroad. Legal aid is not generally available to an appellant who contends that his right to remain in the UK arises out of Article 8: para 30, Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So, in order to obtain legal aid, he must secure an “exceptional case determination” under section 10 of that Act. Although an appeal brought from abroad is in principle as eligible for such a determination as an appeal brought from within the UK , the determination cannot be made unless either the absence of legal aid would breach his rights under Article 8 or it might breach them and provision of it is appropriate in all the circumstances: section 10(3). It suffices to say for present purposes that it is far from clear that an appellant relying on Article 8 would be granted legal aid. One can say only that, were he required to bring his appeal from abroad, he might conceivably be represented on legal aid; that alternatively he might conceivably have the funds to secure private legal representation; that alternatively he might conceivably be able to secure representation from one of the specialist bodies who are committed to providing free legal assistance to immigrants (such as Bail for Immigration Detainees: see para 70 below); but that possibly, or, as many might consider, probably, he would need to represent himself in the appeal. Even if an appellant abroad secured legal representation from one source or another, he and his lawyer would face formidable difficulties in giving and receiving instructions both prior to the hearing and in particular (as I will explain) during the hearing. The issue for this court is not whether Article 8 requires a lawyer to be made available to represent an appellant who has been removed abroad in advance of his appeal but whether, irrespective of whether a lawyer would be available to represent him, Article 8 requires that he be not removed abroad in advance of it.

61. The next question is whether, if he is to stand any worthwhile chance of winning his appeal, an appellant needs to give oral evidence to the tribunal and to respond to whatever is there said on behalf of the Home Secretary and by the tribunal itself. By definition, he has a bad criminal record. One of his contentions will surely have to be that he is a reformed character. To that contention the tribunal will bring a healthy scepticism to bear. He needs to surmount it. I have grave doubts as to whether he can ordinarily do so without giving oral evidence to the tribunal. In a witness statement he may or may not be able to express to best advantage his resolution to forsake his criminal past. In any event, however, I cannot imagine that, on its own, the statement will generally cut much ice with the tribunal. Apart from the assistance that it might gain from expert evidence on that point (see para 74 below), the tribunal will want to hear how he explains himself orally and, in particular, will want to assess whether he can survive cross-examination in relation to it. Another strand of his case is likely to be the quality of his relationship with others living in the UK , in particular with any child, partner or other family member. The Home Secretary contends that, at least in this respect, it is the evidence of the adult family members which will most assist the tribunal. But I am unpersuaded that the tribunal will usually be able properly to conduct the assessment without oral evidence from the appellant whose relationships are under scrutiny; and the evidence of the adult family members may either leave gaps which he would need to fill or betray perceived errors which he would seek to correct.

62. When the power to certify under section 94B was inserted into the 2002 Act, an analogous power was inserted into the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (“the 2006 Regulations”), now recently replaced. Regulation 24AA(2) enabled the Home Secretary to add to an order that an EEA national be deported from the UK a certificate that his removal pending any appeal on his part would not be unlawful under section 6 of the 1998 Act. But regulation 24AA(4) enabled him to apply “to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision”. In Secretary of State for the Home Department v Gheorghiu [2016] UKUT 24 (IAC), the Upper Tribunal (Blake J and UTJ Goldstein) observed at para 22 that, on an application for an order to suspend enforcement, the court or tribunal would take due account of four factors. The fourth was

“that in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, 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 …”

It is also worthwhile to note that, even if an EEA national was removed from the UK in advance of his appeal, he had, save in exceptional circumstances, a right under regulation 29AA of the 2006 Regulations (reflective of Article 31(4) of Directive 2004/58/EC) to require the Home Secretary to enable him to return temporarily to the UK in order to give evidence in person to the tribunal.

63. The Home Secretary submits to this court that the fairness of the hearing of an appeal against deportation brought by a foreign criminal is highly unlikely to turn on the ability of the appellant to give oral evidence; and that therefore the determination of the issues raised in such an appeal is likely to require his live evidence only exceptionally. No doubt this submission reflects much of the thinking which led the Home Secretary to propose the insertion of section 94B into the 2002 Act. I am, however, driven to conclude that the submission is unsound and that the suggested unlikelihood runs in the opposite direction, namely that in many cases an arguable appeal against deportation is unlikely to be effective unless there is a facility for the appellant to give live evidence to the tribunal.

64. But in any event, suggests the Home Secretary, there is, in each of two respects, a facility for an appellant in an appeal brought from abroad to give live evidence.

65 The first suggested respect was the subject of a curious submission on the part of the Home Secretary to the Court of Appeal. It was that from abroad the appellant could apply for, or that the tribunal could on its own initiative issue, a summons requiring his attendance as a witness at the hearing pursuant to rule 15(1) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604) (“the 2014 Rules”). The curiosity of the submission is that such a summons is not enforceable in respect of a person outside the UK . Nevertheless the Court of Appeal held that the issue of a summons would be a legitimate way of putting pressure on the Home Secretary to allow the appellant to return to the UK to give oral evidence. Before this court the Home Secretary does not continue to contend for the suitability of a summons under rule 15(1). She nevertheless suggests that the tribunal could, by direction, stress the desirability of the appellant’s attendance before it and that, were she thereupon to fail to facilitate his attendance, the appellant could seek judicial review of the certificate under section 94B and, if successful, a consequential order for his return at least pending the appeal. But whether the tribunal could, or if so would, give such a direction in the teeth of a subsisting certificate is doubtful; and in any event it seems entirely impractical for an appellant abroad to apply first for the unenforceable direction and then for judicial review of any failure to comply with it.

66. The second suggested respect has been the subject of lengthy and lively argument. The suggestion is that the appellant can seek to persuade the tribunal to permit him to give live evidence from abroad by video link or, in particular nowadays, by Skype.

67. There is no doubt that, in the context of many appeals against immigration decisions, live evidence on screen is not as satisfactory as live evidence given in person from the witness box. The recent decision of the Upper Tribunal (McCloskey P and UTJ Rintoul) in R ( Mohibullah ) v Secretary of State for the Home Department [2016] UKUT 561 (IAC) concerned a claim for judicial review of the Home Secretary’s decision to curtail a student’s leave to remain in the UK on the grounds that he had obtained it by deception. The Upper Tribunal quashed the decision but, in a footnote, suggested that the facility for a statutory appeal would have been preferable to the mechanism of judicial review and that it would be preferable for any statutory appeal to be able to be brought from within the UK . It said:

“(90) Experience has demonstrated that in such cases detailed scrutiny of the demeanour and general presentation of parties and witnesses is a highly important factor. So too is close quarters assessment of how the proceedings are being conducted - for example, unscheduled requests for the production of further documents, the response thereto, the conduct of all present in the courtroom, the taking of further instructions in the heat of battle and related matters. These examples could be multiplied. I have found the mechanism of evidence by video link to be quite unsatisfactory in other contexts, both civil and criminal. It is not clear whether the aforementioned essential judicial exercises could be conducted satisfactorily in an out of country appeal. Furthermore, there would be a loss of judicial control and supervision of events in the distant, remote location, with associated potential for misuse of the judicial process.”

Although the Home Secretary stresses that the Upper Tribunal was addressing the determination of issues relating to deception, its reservations about the giving of evidence by electronic link seem equally apt to appeals under Article 8 against deportation orders. Indeed one might add that the ability of a witness on screen to navigate his way around bundles is also often problematic, as is his ability to address cross-examination delivered to him remotely, perhaps by someone whom he cannot properly see. But, although the giving of evidence on screen is not optimum, it might well be enough to render the appeal effective for the purposes of Article 8, provided only that the appellant’s opportunity to give evidence in that way was realistically available to him.

68. Inquiry into the realistic availability of giving evidence on screen to the tribunal gets off to a questionable start: for in her report entitled “2016 UK Judicial Attitude Survey”, Professor Thomas, UCL Judicial Institute, records that 98% of the judges of the First-tier Tribunal throughout the UK responded to her survey and that, of them, 66% rated as poor the standard of IT equipment used in the tribunal.

69. In Secretary of State for the Home Department v Nare [2011] UKUT 443 (IAC) the Upper Tribunal (Mr CMG Ockelton VP, UTJ Grubb and IJ Holmes), in the course of considering an allegation that a judge of the First-tier Tribunal had too readily allowed a witness to give evidence by telephone, gave guidance as to how the tribunal should approach any application for a direction that evidence be given by electronic link. At that time the rules specifically provided for such a direction to be given; now, by rules 1(4) and 14(1)(e) of the 2014 Rules, provision for it is encompassed in the definition of a “hearing”, together with the power to direct “the manner in which any evidence or submissions are to be provided [including] orally at a hearing”. The Upper Tribunal prefaced its guidance by observing at para 17 that departure from the usual model of oral evidence given directly in the courtroom was likely to reduce the quality of evidence and the ability both of the parties to test it and of the judge to assess it. Its guidance, given in para 21, included:

(a) that the application should be made and determined well before the substantive hearing;

(b) that the application should not only explain the reason for evidence to be given on screen and indicate the arrangements provisionally made at the distant site but also include an undertaking to be responsible for any expenses incurred;

(c) that, were the evidence to be given from abroad, the applicant should be able to inform the tribunal that the foreign state raised no objection to the giving of evidence to a UK tribunal from within its jurisdiction;

(d) that the applicant should satisfy the tribunal that events at the distant site were, so far as practicable, within its observation and control, that the evidence would be given there in formal surroundings and be subject to control by appropriate officials and that nothing could happen off camera which might cast doubt on the integrity of the evidence; and

(e) that a British Embassy or High Commission might be able to provide suitable facilities.

70. Bail for Immigration Detainees (“BID”), a charity which provides a small minority of those facing deportation with free legal advice and even representation and which intervenes in the appeals before the court, provides a helpful example of how the tribunal seeks to implement the guidance given in the Nare case. In 2016 BID represented a Nigerian citizen in his appeal against a deportation order by reference to his rights under Article 8. His claim had been certified under section 94B so he had been removed to Nigeria in advance of the appeal. On his application, through BID, to give evidence on the appeal from Nigeria by Skype, the tribunal sought to implement the guidance summarised at para 69(d) above by the following direction:

“The tribunal must be advised in advance of the hearing of the arrangements made to enable the appellant to give evidence in a secure location, attended by a local agent or representative instructed by the appellant’s solicitors and whose identity has at the time of such advice been provided to the tribunal.”

71. In the same order the tribunal also sought to implement the guidance summarised at para 69(b) above by the following direction:

“All necessary equipment and Skype link must be provided and paid for by the appellant but must include:

( i ) Projection equipment

(ii) Audio equipment

(iii) Wi-fi link

to enable all present to see and hear the appellant give evidence.”

As is apparent from this direction, the tribunal requires an applicant to pay for provision of the necessary equipment not only at the distant end but also at the hearing centre itself. When, in a letter written in response to the direction, BID requested the tribunal to buy, install and maintain its own equipment for the purpose of hearing evidence from abroad, one of its judges replied:

“Unfortunately, the Tribunal has no funds to provide equipment or technical ability, hence the onus in that regard we have to place upon appellants and their representatives.”

In the event the appellant represented by BID was furnished by a friend with the equipment necessary for his use in Nigeria in giving evidence by Skype; and, since the friend was a lawyer, he was able and willing also to exercise free of charge the degree of control required by the tribunal. But the appellant could not afford to purchase the equipment for use at the hearing centre; and so it was BID which bought a laptop computer (£240), a projector (£252) and a 3G mobile telephone contract (£33.97 per month), for use there at the hearing of his appeal.

72. The researches of the solicitors for Mr Kiarie indicate that it would cost the equivalent of £240 per hour to rent a video conference room for his use in Nairobi and that therefore a rental for say seven hours, so as to enable counsel to conduct a pre-hearing conference with him as well as to cover the probable length of the hearing, would cost £1,680. The researches of the solicitors for Mr Byndloss indicate that the hourly cost of renting a video conference room for his use in Kingston would be marginally less but they estimate that it would be necessary to rent it for 11 hours in order to cover the probably lengthier hearing of his appeal.

73. It is already clear however that the cost of hiring the necessary equipment for use at the distant end of any evidence given by video link or Skype is only part of the cost which an appellant must bear. He must also bear the cost of providing the equipment for use at the hearing centre and he may well have to pay for the attendance beside him of someone able and willing to exercise the degree of control required by the tribunal. Apart, however, from having to meet the overall costs of giving evidence in that way, an appellant has to confront formidable technical and logistical difficulties. Powerful evidence is given by the appellants’ solicitors and other legal specialists in the field to the effect that:

(a) it can be a slow and tortuous process to obtain the consent of the foreign state for evidence to be given from within its jurisdiction;

(b) it can be difficult to achieve compatibility between the system adopted at the distant end and the system installed at the hearing centre, with the result that a bridging service sometimes needs to be engaged and funded;

(c) it can be difficult to alight upon a time for the link to begin and end which is both acceptable to the tribunal and practicable at the distant end in the light of the time difference; and

(d) if, as is not uncommon, the link fails during the hearing and cannot then and there be restored, the tribunal can prove reluctant to grant an adjournment to another date.

74. Apart from the difficulty surrounding his giving live evidence to the tribunal, an appellant deported in advance of the appeal will probably face insurmountable difficulties in obtaining the supporting professional evidence which, so this court is told, can prove crucial in achieving its success. In support of his claim to present no significant risk of re-offending, an appellant is likely to wish to submit evidence from his probation officer; but, upon his deportation, his probation officer will have closed his file and will apparently regard himself as no longer obliged to write a report about him. An appellant may also wish to submit evidence from a consultant forensic psychiatrist about that level of risk. But the evidence in these proceedings of Dr Basu MRC Psych, Clinical Director at Broadmoor Hospital, is that he has never sought to assess the risk posed by a person visible to him only on screen and that any such assessment would have to be treated with considerable caution. In support of an appellant’s likely claim to have a close and active relationship with a child, partner or other family member in the UK, an appellant will not uncommonly adduce, as in these preliminary proceedings Mr Byndloss has already sought to do, a report by an independent social worker who, so he hopes, will speak of the quality, and in particular for the family the importance, of the relationship. But 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.

75. It was more than 30 years ago that, in the appellate committee which preceded the creation of this court, concern was first expressed about the value of an appeal which was required to be brought from abroad. In R (Khawaja) v Secretary of State for the Home Department [1984] AC 74 Lord Fraser of Tullybelton observed at pp 97-98:

“… in spite of [a] decision … that the illegal immigrant be removed from this country, it will still be open to him to appeal under section 16 of [the 1971 Act] to an adjudicator against the decision to remove him. The fact that he is not entitled to appeal so long as he is in this country - section 16(2) - puts him at a serious disadvantage, but I do not think it is proper to regard the right of appeal as worthless. At least the possibility remains that there may be cases, rare perhaps, where an appeal to the adjudicator might still succeed.”

76. Today, however, this court is invested with responsibility for deciding whether two foreign criminals who, by reference to Article 8, each have arguable appeals against the deportation orders made against them and who have rights thereunder for their appeals to be effective, would suffer a breach of those rights if they were to be deported in advance of the hearing of the appeals. I conclude that, for their appeals to be effective, they would need at least to be afforded the opportunity to give live evidence. They would almost certainly not be able to do so in person. The question is: as a second best, would they be able to do so on screen? The evidence of the Home Secretary is that in such appeals applications to give evidence from abroad are very rare. Why? Is it because an appellant has no interest in giving oral evidence in support of his appeal? I think not. It is because the financial and logistical barriers to his giving evidence on screen are almost insurmountable. In this case the Court of Appeal has indorsed a practice in which, so it seems, the Home Secretary has, not always but routinely, exercised her power under section 94B to certify claims of foreign criminals under Article 8. But she has done so in the absence of a Convention-compliant system for the conduct of an appeal from abroad and, in particular, in the absence of any provision by the Ministry of Justice of such facilities at the hearing centre, and of some means by which an appellant could have access to such facilities abroad, as would together enable him to give live evidence to the tribunal and otherwise to participate in the hearing.

77. Between 28 July 2014 and 31 December 2016 the Home Secretary issued 1,175 certificates pursuant to section 94B in relation to foreign criminals, all, therefore, with arguable appeals. Of those 1,175 persons, the vast majority were no doubt duly deported in advance of their appeals. But by 31 December 2016 only 72 of them had filed notice of appeal with the tribunal from abroad. It may well be that on 13 February 2017 a few of those appeals remained undetermined. The fact remains, however, that, as of that date, not one of the 72 appeals had succeeded.

78. It remains only to re-cast the reasoning expressed in this judgment within its proper context of a claim that deportation pursuant to the two certificates under section 94B would breach the procedural requirements of Article 8. The appellants undoubtedly establish that the certificates represent a potential interference with their rights under Article 8. Deportation pursuant to them would interfere with their rights to respect for their private or family lives established in the UK and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The burden then falls on the Home Secretary to establish that the interference is justified and, in particular, that it is proportionate: specifically, that deportation in advance of an appeal has a sufficiently important objective; that it is rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation strikes a fair balance between the rights of the appellants and the interests of the community: see R (Aguilar Quila ) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, para 45. The alleged objectives behind the power to certify a claim under section 94B have been set out in section F above. I will not prolong this judgment by addressing whether the power is rationally connected to them and as to whether nothing less intrusive could accomplish them. I therefore turn straight to address the fair balance required by Article 8 and I conclude for the reasons given above that, while the appellants have in fact established that the requisite balance is unfair, the proper analysis is that the Home Secretary has failed to establish that it is fair.”

First question

Second question

Third question

Fourth question

“ 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. ”

“( i ) 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.

(ii) 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.

(iii) 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.

(iv) 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.

(v) 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.

(vi) 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.

(vii) 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. “

Applying those propositions to the facts of Mr Nixon, Hickinbottom LJ found as follows:-

“80. 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.

81. 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.

82. 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. ”

“ 87. 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.

88. 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. ”

First question

Second question

Points to bear in mind

Third question

Fourth question

The first question

The second question

The third and fourth questions

I. DIRECTIONS OF THE FIRST-TIER TRIBUNAL

The decision of the First-tier Tribunal contains a material error of law. We set that decision aside and remit the matter to be re-decided by the First-tier Tribunal.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Dated: 26 February 2018

The Hon. Mr Justice Lane

President of the Upper Tribunal

Immigration and Asylum Chamber