Serious and irreversible harm: Deport First Appeal Later

Serious and irreversible harm

This Article follow my previous Article on the New Immigration Act 2016 removal of ‘in country right of appeal’ for most cases, save for a few exceptions where there would be ‘Serious and Irreversible harm’.  The phrase ‘serious and irreversible harm’ comes from the test used by the European Court of Human Rights (ECtHR) to determine whether to issue a Rule 39 injunction. Nunez v Norway (App no. 55597/09)[2011] ECHR 1047.

Although not referred to in the guidance, the key case would seem to be Ribeiro v France [2012] ECHR 22689/07, in which the ECtHR specifically contrasted the threat of serious and irreversible harm where an article 3 (which prohibits torture, and “inhuman or degrading treatment or punishment”) breach is alleged with the nature and level of harm in cases relying on a breach of article 8 (which provides a right to respect for one’s “private and family life, his home and his correspondence”).

The court observed that ‘where expulsions are challenged on the basis of an alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect’.

What is clear from both these cases is that the need to establish serious and irreversible harm in a claim relying on article 8 will be a difficult threshold test to meet.

For the purposes of Section 94B of the Nationality, Immigration and Asylum Act 2002 , the guidance states that the terms ‘serious’ and ‘irreversible’ must be given their literal meaning and that any harm must be both ‘serious’ and ‘irreversible’. It goes on to elaborate on the two terms:

‘Serious’ indicates that the harm must meet a minimum level of severity, and ‘irreversible’ means that the harm would have a permanent or very long lasting effect.

If the human rights claim is based on Article 8, case owners must consider not only the impact on the foreign national’s rights, but also those of any partner or child.

The test relates only to the period of time between deportation and the conclusion of any appeal, and will not be met solely because the person will be separated from family members in the UK during that period.

The period during which the likelihood of serious and irreversible harm must be considered is between the point of proposed removal and the point that any appeal is finally determined.

Secretary of State’s examples of serious irreversible harm

The guidance then goes on to give examples of situations that, in the view of the Secretary of State, might meet the test for constituting a real risk of serious irreversible harm:

  • the person has a genuine and subsisting relationship with a partner or parental relationship with a child who is seriously ill and requires full-time care, and there is credible evidence that no one else could provide that care;
  • the person being deported is the sole carer of a British citizen child who is at school and the child would have no choice but to accompany the parent to live abroad until any appeal is concluded, resulting in a significant interruption to his or her education;
  • the person to be deported is subject to a court order for a trial period of contact with his or her child, the outcome of that trial period will determine the future contact between that person and the child, and that future contact could affect the art 8 assessment. If deportation pending the outcome of the appeal would prevent that person undertaking the trial period of contact, this may amount to serious irreversible harm;
  • the person has a serious medical condition and medical treatment is not available, or would be inaccessible to the person, in the country of return, such that removal pending appeal gives rise to a risk of a significant deterioration in the person’s health;
  • there is credible evidence that the person would, due to reasons outside his or her control, be prevented from exercising his or her right to an appeal (effectively or at all) against the decision to refuse a human rights claim. For example, where the person suffers from a serious mental health condition or serious physical disability that would prevent him from effectively pursuing his appeal absent the support of his carers in the United Kingdom (and where he will not be able to access the requisite assistance from abroad).

Whilst the guidance concentrates on factors specific to the private and family life of the prospective deportee and his or her family members as being relevant to the question of serious irreversible harm eventuating by removal pending appeal, it may be that the integrity of the appeals process and the fundamental requirement to ensure the appeal is effective in securing the family unit’s rights is also important.

The Strasbourg Court in De Souza Ribeiro v France (supra) stated at [83]:

‘… in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, art 13 in conjunction with art 8 of the Convention requires that states must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality.’

Circumstances which fall short of serious irreversible harm

The guidance gives examples of where, in the opinion of the Secretary of State, it is considered that serious and irreversible harm is unlikely to occur, including where:

  1. a person will be separated from their child/partner for several months while the person appeals against a human rights decision
  2. a family court case is in progress
  3. a child/partner is undergoing treatment for a temporary or chronic medical condition that is under control and can be satisfactorily managed through medication or other treatment and does not require the person liable to deportation to act as a full-time carer
  4. the person liable to deportation has a medical issue which does not lead to a breach of the ECHR, art 3, or
  5. a person has strong private life ties to a community that will be disrupted by deportation (eg they have a job, a mortgage, a prominent role in a community organisation etc)

It is debatable whether it would be compatible with the right to family life to restrict a person’s ability to participate in family proceedings. A person usually needs to be physically present in the United Kingdom in contested family court proceedings as various assessments are often needed which require their physical presence.

Although this is the The Secretary of State for the Home Department’s view of when it is unlikely that removal will cause serious and irreversible harm, every case is clearly fact-specific. The guidance confirms that caseworkers must consider the impact of the decision to remove, not only on the person liable to deportation, but also on their family members. It is likely that in some cases, removal where there are on-going family court proceedings or a serious illness of a child/partner, may well cause serious and irreversible harm, either to the person or their family member. The list provides guidance on issues an adviser will need to deal with either in trying to prevent an appeal being certified in the first place or in challenging certification by way of judicial review.

It should be noted that the only example given of whether serious and irreversible harm may occur (apart from in art 2 or 3 cases which the guidance states should not be certified under s 94B), is where the person is in a genuine and subsisting relationship with a partner or child who is seriously ill, requires full-time care and there is no one else who can provide that care.

The guidance states that where a person alleges that removal would result in serious and irreversible harm, evidence should be provided, preferably from official sources, in the form of a signed letter from the GP responsible for treatment, a family court order etc.

Section 55 duty

Section 55 of the Borders, Citizenship and Immigration Act 2009 came into force on the 2nd of November 2009. It requires the UK Visas and Immigration to make arrangements to safeguard and promote the welfare of children in discharging its immigration, nationality and general customs functions.

When considering whether to certify a human rights claim pursuant to section 94B, the best interests of any child under the age of 18 whom the available information suggests may be affected by the deportation decision must be a primary consideration. Case owners must carefully consider all available information and evidence to determine whether or not it is in the child’s best interests for the person liable to deportation to be able to appeal from the UK. This is particularly relevant in considering whether deportation pending appeal would cause serious irreversible harm to the child.

The case owner must also consider whether those interests are outweighed by the reasons in favour of certification in the individual case, including the public interest in effecting deportation quickly and efficiently. Case owners must carefully assess the quality of any evidence provided in relation to a child’s best interests. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests or copies of documents.

The Court of Appeal judgment in Kiarie and Byndloss

Accordingly, the procedural, as well as the substantive, rights afforded by article 8 are in issue and these were considered by the Court of Appeal in Kiarie. It appears that the key question is not whether there is a real risk of serious irreversible harm but rather whether the deportee’s removal from the United Kingdom pending appeal would breach his or her human rights. It is for the Secretary of State to form her own view on this by making the necessary finding of facts and by conducting a proportionality balancing exercise on the facts so found. On a judicial review challenge her findings of fact are open to review on Wednesbury principles, applied with the necessary level of anxious scrutiny.22 ‘But as to the assessment of proportionality, the decision of the Supreme Court in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945 shows that the court is obliged to form its own view, whilst giving appropriate weight (which will depend on context) to any balancing exercise carried out by the primary decision-maker.’ ([33])

Home Office Discretion

It is also important to note that, as under s 94B(2) the Secretary of State may certify the claim, where the statutory condition in sub-s (2) and the criterion in sub-s (3) are met, the Secretary of State has a discretion whether to certify or not and that, theoretically at least, the exercise of her discretion could be challenged by way of judicial review.

The Secretary of State’s post-Kiarie guidance makes reference to the exercise of discretion and gives as an example where a person is not currently removable: ‘It would be counterproductive to certify if the person could not then leave the UK to exercise a right of appeal, for example there is no realistic prospect of an acceptable travel document or other return information required for biometric returns being available.’ (see para 3.28)

The guidance continues by stating, perhaps a little riskily, that in the absence of specific representations and where there are no particular factors to justify a positive exercise of discretion, ‘it is not necessary to give reasons in the decision letter for not exercising discretion in favour of a person liable to deportation.’

Turning to the procedural guarantees provided by article 8,

The court has held that,  in summary, the decision-making processes by which art 8 rights are determined must be fair; fairness requires that individuals are involved in the decision-making process, viewed as a whole, to a degree that is sufficient to provide them with the requisite protection of their interests; and this means that procedures for asserting or defending rights must be effectively accessible.

Are out of country Immigration Appeal less effective?

In case law challenging this new legislation four reasons were submitted as to why requiring them to bring an appeal from outside the United Kingdom would deprive them of effective involvement in the appellate process and would result in unfairness:

  • they asserted that out-of-country appeals are generally less effective than in-country appeals;
  • the appellants would face significant practical difficulties in procuring, preparing and presenting evidence for their appeals;
  • removal pending appeal would have a clear impact on the overall fairness of the proceedings, including the appearance of fairness; and
  • requiring them to pursue their appeals from abroad, effectively back in their countries of origin, would diminish their chances of success on the very issues – eg whether or not they were able to integrate into those countries – at large on the appeal.

The court has rejected each of these in turn, holding that Art 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. Rather it requires access to a procedure that meets the essential requirements of effectiveness and fairness.

Fairness

Out-of-country appeals were generally fair and the FTT could be trusted to ensure fairness. If particular procedures are needed to enable an appellant to present his case properly or for his credibility to be properly assessed, there is sufficient flexibility within the system to ensure that those procedures are put in place. That applies most obviously to the provision of facilities for video conferencing or other forms of two-way electronic communication or, if truly necessary, the issue of a witness summons so as to put pressure on the Secretary of State to allow the appellant’s attendance to give oral evidence in person.

Despite the disadvantages to which an appellant would be subject, the court did not accept that an out of country appeal would either be unfair or would appear to be unfair. Things can of course go wrong in practice in individual cases, but there is no basis for condemning an out-of-country appeal as inherently unfair.

The court found that there was no merit in the argument that the appellants’ removal to their countries of origin would unfairly weaken their cases on appeal because they would have to integrate to some extent into society and establish ties there. There would be no unfairness in the Tribunal being able to receive evidence of the appellant’s actual experience in the country of return, irrespective of whether that evidence supported the Secretary of State’s case or the appellants’ case. The same goes for any evidence about the maintenance of contact and connections with the United Kingdom by the various means of communication available.

Bottom Line

In conclusion, and on consideration of the substantive article 8 issues in each of their cases, Richards LJ of the Court of Appeal granted both appellants permission to apply for judicial review but dismissed each substantive claim.

From the details of this case, it is clearly evident that there is a significantly high threshold for ‘significant damage’, and, what is worse, that the alternative of challenging such decisions by way of Judicial Review (which costs an arm and a leg!) may still not provide sufficient remedy for such cases, as you can only exercise this option when there is no other judicial option available, ie. you are ordinarily expected to exhaust your right of appeal (whether in or out of country) BEFORE any recourse to Judicial Review.

If you have been affected by this issue or any other UK immigration matter, please contact Tito, a UK Immigration and Human Rights Solicitor, for a Free Initial Consultation about your legal options – it’s free! Call 07544 669131 / 01163800744 Or on Skype: tito.mbariti.