The Government's system of certifying human rights claims so that they can only be appealed from abroad has been ruled to be unlawful in a major judgment from the Supreme Court today.
The court found that forcing people to mount their appeals from abroad in circumstances where doing so might prevent them preparing the evidence necessary to ensure a fair appeal hearing was unlawful. It also found that a proper assessment of an appellant's evidence can only be made by a judge being able to properly assess a witness's demeanour. This is not possible via video evidence, the technology for which is also unreliable.
The court referred to “compelling” evidence provided by Bail for Immigration Detainees (BID) who intervened in the case that detailed the demands upon appellants to provide the equipment for video evidence in the Tribunal, which does not simply result in excessive costs but involves “formidable technical and logistical difficulties”.
The court concluded 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”.
BID’s Assistant Director Pierre Makhlouf said:
“I am delighted with the court’s judgment. The UK's common law requires appeals to be operated fairly and effectively, and the court has clearly stated that the process of certification and out of country appeals is not compatible with that. Of the 1,175 out of country certificates issued by the Home Office between 28 July 2014 and 31 December 2016, only 72 appeals were filed, and not one of the appeals succeeded."
“Deportation is effectively permanent punishment, resulting in the separation of children from their parents for their entire childhoods and disrupting family life for at least 10 years, and often permanently. Such separation risks causing serious and potentially permanent harm to children."
“The need for a meaningful appeal right that is fair and effective is therefore both urgent and paramount. The government must react to this judgment quickly, and ensure every person has fair access to the appeals process.”
BID thanks its legal team that acted for the organisation on a pro bono basis and included:
Michael Fordham QC (Blackstone Chambers)
Sonali Naik (Garden Court Chambers)
Bijan Hoshi (Garden Court Chambers)
Andrew Denny (Allen and Overy Solicitors)
Maeve Hanna (Allen and Overy Solicitors)
Stefan Nigam (Allen and Overy Solicitors)
Farah El Yacoubi (Allen and Overy Solicitors)
Full texts of the judgment are available here - https://www.supremecourt.uk/news/latest-judgments.html
