R (on the application of Kiarie) v SSHD [2017] UKSC 42

Kiarie deportation

 

R (on the application of Kiarie) v SSHD [2017] UKSC 42 is an Immigration Law appeal case concerning deportation

Facts:

Mr. Kiarie was a Kenyan national. In 1997, at the age of three, he came to the UK with his family. He was convicted of serious drug related offences. A deportation order was issued. The appellant claimed that deportation would breach his Article 8 right. As a result, the Supreme Court allowed the appeal of Mr. Kiarie and quashed the deportation order.

Reasoning of the judgment:

The deportation of a “foreign criminal” falls under section 32 of the UK Borders Act 2007, that states that the deportation must be conducive to the public good. However, Parliament gave foreign criminals a right of appeal against a deportation order by enacting section 82(1) and (3A) of the Nationality, Immigration and Asylum Act 2002. Therefore, the public interest in the removal of an appellant in advance of his appeal is outweighed by the public interest that a right of appeal should be effective.

Issue:

The determinative question in R (on app of Kiarie) v SSHD was whether the issue of a section 94B certificate obstructs an appellant’s ability to effectively present his appeal against the deportation order.

In an appeal brought from abroad, the appellant’s ability to present his appeal is likely to be obstructed in a number of ways. Even if he is able to secure legal representation, the appellant and lawyer would face difficulties in giving/receiving instructions prior to and during the hearing. It is arguable to what extent the applicant will be able to give live evidence from abroad. This is important to assist the tribunal in its assessment of the case.

Held:

Overall, the system of certification of claims under s94B was inherently unfair. For example, the deportee must leave the UK before they can appeal on Article 8 grounds.

‘…For 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: 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 giving evidence on screen are almost insurmountable’ (para.76)

References: [2017] UKSC 42, [2015] EWCA Civ 1020

Read our notes and other cases on deportation for more information. 

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