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© Pathfynder Limited 2018. Pathfynder Solicitors is a trading name of Pathfynder Limited, a company registered in England and Wales with company registration number 10170947. The registered address is King House, 5-11 Westbourne Grove, London, W2 4UA. Authorised and regulated by the Solicitors Regulation Authority, SRA No. 629672.


Deport first, appeal laterThe Supreme Court handed down judgement on 14 June 2017 on the Secretary of State’s controversial deport first, appeal later policy in the case of R (on the applications of Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42.

It is useful to recall that the Secretary of State has gradually eroded away the right to appeal against immigration decisions since around 2010. The cynical amongst us might say that this was to obscure the poor decision making by Immigration Officers which were subsequently overturned by impartial Immigration Judges.

This one data set showing the number of Immigration and Asylum appeals allowed under Articles 3 and 8 of the European Convention on Human Rights shows that between October and December 2010 alone 13,148 of the 24,331 refusals were allowed on appeal to a First Tier Tribunal. That’s 54% of decisions being overturned in the First Tier Tribunal or more than 1 in every 2 decisions.

Kiarie and Byndloss

By way of background, these appeals concerned people who were already living in the UK and had unsuccessful immigration cases. The Secretary of State decided to certify their human rights claims so that they would have to bring their appeals from outside the UK, after they were deported. This was despite both Kiarie and Byndloss having family members residing in the UK.

The power to certify claims was granted to the Secretary of State on 28 July 2014 when a new section 94B was inserted into the Nationality, Immigration and Asylum Act 2002 (‘NIA 2002’). This enabled the Secretary of State to certify claims when a person who is liable to deportation on the ground that it is conducive to the public good, provided it was not contrary to the Human Rights Act 1998 and provided that the individual would not face a real risk of serious irreversible harm.

On 1 December 2016, this power was extended to enable to Secretary of State to certify any human rights claim whether or not the person was liable to a deportation order.

Consideration by the Supreme Court

The Supreme Court recognised that there is a public interest in requiring some people to bring their appeals from outside the UK, after they are deported. However, it also recognised the fact that where a right of appeal is given that right of appeal should be effective.

The Supreme Court looked into how appeals could be brought from overseas and noted the difficulties with regards to the appellant’s private and family lives. Having weighed this up, it noted the fact that between 28 July 2014 and 31 December 2016, the Secretary of State issued 1,175 certificates. However, out of all those 1,175 individuals who left the UK only 72 had filed a notice of appeal with the tribunal from abroad. Out of the 72, not one appeal has been successful.

In light of the above, the Supreme Court held that the certificates were not fair as the right of appeal given to these individuals was not effective.

Written by Angela Serna

Please note that this article is for information only and should not be taken as legal and/or financial advice. Immigration law changes regularly and it may be the case that this page has not been updated to take into account the latest changes. If you would like advice on your personal circumstances, please feel free to contact us.

Justice obscured - deport first, access to justice later…maybe - 23 June 2017