Out-of-country right of appeal – is it fair?

There has been – in various ways – a very significant diminution in immigration appeal rights over the last few years.

One of the ways in which this has occurred is that the Home Secretary has acquired legal powers to determine that, where there is a right of appeal to the First-Tier Tribunal against a refusal of an immigration decision, the right of appeal can only be exercised from outside the UK.

But of course the First-Tier Tribunal is physically located (at various places) within the UK, so this is necessarily a rather long-distance exercise. But it is not something entirely new; historically, those living abroad who were refused visas to come to the UK and who had the right of appeal to the Tribunal had to conduct their appeals from outside the UK.

But the situation where somebody has to leave the UK in order to conduct their appeal from outside the UK is something rather different, psychologically, practically and ultimately legally. Where an unsuccessful applicant only has an out-of-country right of appeal there are usually “difficult” issues involved: such cases are typically human rights cases and criminal deportation cases.

Such a person has to convince an Immigration Judge that, for instance, their family life in the UK is strong and genuine or that their past offending is now behind them. One would not have to be a deep lawyer to see that such an exercise is not very effectively carried out on paper. Immigration Judges can and must take into account everything before them, and this includes the body language and demeanour of an appellant. If the appellant is not physically present at the appeal hearing then this part of the Judge’s decision-making process cannot take place, and the procedure is thus to that extent unsatisfactory.

But the courts historically had not declared that the out-of-country appeal legislation was unlawful. The fact that there is an appeal process – albeit a rather second-class one – seems to have been deemed sufficient.

But now this issue has reached the Supreme Court –the highest court in the UK – and some doubt has been expressed. The case is called “Kiarie & Byndloss” and it was a case about the deportation of foreign criminals (ie foreign nationals who have been convicted of serious offences), but it could implications beyond foreign criminal cases.

A slightly confusing fact about the Court’s judgement was that two of the five Judges delivered separate judgements (as sometimes happens) rather than the Court deliver a single judgement from all them. But the two Judges were nonetheless in agreement that there were some questions to be asked about the out-of-country appeal rights legislation.

Lord Wilson took the (presumably correct) view that “when we are afforded a right of appeal, our appeal should be effective” but, further, 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”.

But what about video facilities for the appeal hearing? Might that be an effective solution? Lord Wilson explained that it was likely that the appellant themself would have to fund such technology and that there would be formidable technical difficulties: “the financial and logistical barriers to his giving evidence on screen are almost insurmountable”. He also revealed interesting independent evidence that 66% of Immigration Judges thought that the standard of IT equipment used at the Tribunal was “poor”.

Lord Carnwarth in his judgement did not go so far as his colleague Lord Wilson, and he did not find that video facilities would necessarily be insufficiently effective, but nonetheless he agreed that appellants outside the UK are under present circumstances likely to face “major logistical problems”, and he agreed that the appellants’ appeal (which was an appeal against the certification that their cases could only be heard outside the UK) should succeed.

The fact of the two slightly differing judgments muddies the waters a bit, but it is very possible that this case will hold implications for the future of out-of-country appeals.

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