The Start of Roots to Return...
Roots to Return has been set up in response to the noticeable increase in the UK Home Office's use of their 'Deport Now, Appeal Later' policy. Under this policy individuals who have often been in the UK for most of their lives, had British Citizenship, have children and families in the UK and are settled can be removed from the country often to places they have little memory of. Founders of this group have been supporting immigration detainees and their families and have found that individuals given an out of country right of appeal are generally unable to exercise that right once removed from the UK. This is because of a number of barriers to justice including no access to legal representation, lacking funds, difficulty communicating with family members remaining in the UK, lack of understanding the appeal process and generally struggling to survive in the country they were removed to.
The 'Deport Now, Appeal Later' regime is presently only applied to immigration cases that involve a criminal deportation order. The policy, however, is set to be used for all immigration cases excluding those of asylum and humanitarian protection. This essentially means that anyone seeking leave to remain in the UK for any reason other than fearing persecution or inhumane and degrading treatment will need to return to their country of origin to pursue the appeals process if the claim is initially refused. It is expected that thousands of individuals will be plunged into this situation with little prospect of engaging in the Out of Country Appeals Process.
At Roots to Return we are committed to supporting families forced to go through this ordeal and aim to provide high levels of practical support to families remaining in the UK and the individuals attempting to submit their appeals from overseas. We have developed three projects to address the issued mentioned above. See 'What We Do' for more details.
This is Chris’s story. He is one of a growing number of people being deported from the UK, even when they have spent most of their lives here. Like so many other deportees, Chris originally moved to Britain as a child. He speaks with a London accent, and the Jamaica of his childhood is a distant memory.
Court of Appeal gives judgment on the “deport first, appeal later” regime
October 27, 2015
A barrister specialising in UK immigration law at Garden Court Chambers reports on failed attempt to challenge to the 'Deport Now, Appeal Later' Policy. Colin Yeo expresses personal doubt as to whether indiviuals will be able to purue their Out of Country Appeal Rights.
June 05, 2016
Latest report on Charter Flights leaving the UK and how this is largely ignored by the UK Media. An examination of the regular charter flights leaving the UK for Nigeria and Ghana and how little priority is given to the hundreds of individuals removed in this manner as compared to the proposed removal of one Australian family.
The Illusion of Out of Country Appeals - A Case Study
February 12, 2016
The AIRE Centre has seen first-hand how ineffective the ‘out of country’ appeals provisions are for some of those most in need. Here, Legal Project Manager Emma Lough, shares a case study.
In the Media...
JAMAICAN CHARTER FLIGHT: ROOTS TO RETURN AND APPEALING AFTER DEPORTATION
As has been widely reported, the UK Home Office scheduled a mass deportation charter flight for Jamaica departing 7th September 2016, forcibly removing individuals 4,500 miles from their children and families in the UK – the first to do so since 2014. One message on Facebook from a partner of someone deported said: “My partner was on that plane this morning, he had access to a phone, i heard screaming crying.one young man shouting murderers all of u, over and over again shouting he was british. my partner described people being strapped to chairs by there head and body unable to move...”
The Unity Centre has been in contact with over 50 individuals issued with tickets for the charter flight, all who had arrived to the UK as a child: went through the UK education system and built communities in the UK, often unable to save up enough money to pay the expensive fees for obtaining British citizenship. Every individual they spoke to but one has children in the UK; the Home Office assert that people forcibly removed are able to maintain strong relationships with their children and grandchildren via “modern methods” such as Skype.
Many on the charter flight were issued with the “right” to appeal after being deported to Jamaica. Home Office guidance states: “When a person brings or continues an appeal relating to a protection claim from outside the UK…the appeal is to be treated as if the person were not outside the UK.” As members of Roots to Return, with many years of experience supporting individuals facing deportation and witnessing the beginning of the ‘Deport Now, Appeal Later’ policy, we can state that in no way can an out-of-country appeal be considered and treated as though the person was appealing from within the UK.
One example of this is the way in which out-of-country appeals are conducted through video-link through the receiving country’s embassy; Roots to Return has heard from individuals who are unable to appeal through this due to wishing to avoid the country’s embassy as they are themselves in hiding, whilst lawyers and groups such as The Aire Centre in the UK have already recorded the difficultly of participating in an appeal in court via video-link.
Once removed, people often find themselves destitute, with little or no money, job prospects – and a complete lack of connections or resources to be able to pursue an out-of-country appeal, which requires a UK based lawyer or representative, £140 to lodge an appeal claim within the 28-day limit, and access to evidences supporting a human rights claim – which, if it is family-based, resides in the UK – and thus evidence cannot be gathered by the individual in the country they are removed to. The majority of lawyers we spoke to across the UK made it clear that they had little capacity to take on appeals from outside of the UK, noting the clear complications when compared to in-country appeals and legal representation; the ones that had capacity charged at least £2500 and were reluctant to apply for exceptional legal funding for a client outside of the UK.
This is clear too from The Unity Centre’s experiences supporting individuals pursuing out-of-country appeals. One man from Bangladesh attempted to pursue an out-of-country appeal; upon being forcibly removed, he found himself street homeless and severely ill – meaning that he was unable to even afford enough phone credit to contact a lawyer in the UK – let alone pay the £140 fee to lodge an appeal. Roots to Return experienced how another man, forcibly removed to Nigeria, was unable to pursue an out-of-country appeal due to the fact that he was in hiding from state officials he previously fled from to the UK; finding it too dangerous to even use a phone, he was forced to communicate with us through his mother, whose health was rapidly decreasing due to the stressfulness of the situation.
Both Roots to Return and The Unity Centre are unaware of a single instance in which someone has been successful in appealing from outside of the UK, with appeals taking up to 18 months to be heard. The success rate for appeals was just 13% in the year up to August 2015. However, in the year to April 2013, before ‘Deport first, Appeal later’, the success rate was double at 26% - demonstrating the alarming levels of poor Home Office decision-making that are overturned by the court afterwards. This suggests that appellants are much less likely to succeed on appeal once they are removed from the UK, despite the fact that there is no evidence to suggest that the basis of the appeals brought would have materially changed or that their cases would be weaker than those brought previously from within the UK.
Rather, the explicit process and procedure of an out-of-country appeal creates the conditions for appeals from outside of the country to be unsuccessful – let alone be lodged in the first place, with from July 2014 to August 2015 only 426 (25%) appealing against their deportation, a marked drop from the 2,329 who appealed in the previous year (to April 2013) – thus severely damaging the role of appeals as a vital part of accessing justice in the UK.
Roots to Return has been set up to support individuals pursuing out-of-country appeals, whilst monitoring and documenting the ways in which the UK’s obligations to the Refugee Convention may be breached, by identifying factors that ensure that individuals are unable to access the resources or support to substantially appeal from outside of the UK. We do not seek to support or fill in for the Home Office; we directly oppose their racist and unjust policies, and aim only to help individuals challenge these policies and return to the UK – not make deportations more bearable.
We have an online handbook to support those navigating the complex and largely unknown out-of-country appeals system, which can be found on our website. We support with identified barriers such as access to legal representation, video-link from the country of removal, organising witnesses, liaising with families and legal representatives in the UK, and submitting and preparing documents within the time limit.
If you have been deported and want to pursue your “right” to an out-of-country appeal, or would like to know more, you can contact Roots to Return at: rootstoreturn@gmail.com . We are also looking to make connections with lawyers and volunteers in the UK & receiving countries such as Jamaica, Nigeria, and Pakistan – get in touch if this is something you may be interested in getting involved with.
Latest article for The Guardian on out of country appeals: https://www.theguardian.com/commentisfree/2016/sep/27/deport-first-out-of-country-appeal-jamaica-mass-deportations-home-office
The 2017 Supreme Court Byndloss Judgment
The UK Supreme Court decision in R (Kairie and Byndloss) v Secretary of State for the Home Department has struck down the “deport first, appeal later” procedure in the case of two foreign national criminals, holding that the procedure denies foreign national criminals an effective appeal.
The Immigration Act 2014 forced foreign national criminals to leave the UK before their appeal took place. The “deport first, appeal later” rules originally only applied to foreign national criminals facing deportation, however the Immigration Act 2016 expanded these powers to include any appellant, other than in asylum cases. This had worrying implications for the rule of law, as appellants were not able to be present in the UK to give evidence to support their appeal. Ultimately, only 72 individuals attempted to pursue an appeal from abroad, and none succeeded.
However, the Byndloss 2017 Supreme Court judgment has changed this, by holding that deporting the men before appeal breaches their human rights, as it would significantly weaken their case.
In this case, the two appellants were of Kenyan and Jamaican nationality, and possessed indefinite leave to remain. Both appellants had been convicted of serious drug offences, and in 2014, the Home Office decided to deport them. The Home Office used a power that was then conferred by the then Immigration Act 2014 to force them to leave the UK before they lodged and pursued an appeal.
How the law worked
The “deport first, appeal later” regime was a discretionary one, whereby the Home Office decided in which cases it should operate. When the Home Office decided that the regime should apply to a particular person’s appeal, a certificate was issued under section 94B of the Nationality, Immigration and Asylum Act 2002.
Section 94B subsections (2) and (3) contained a test for the Home Office to satisfy, before a certificate was issued. These subsections stated that:
(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.
Therefore, the test was that:
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The removal of the individual before appeal would not constitute an act by a public authority contrary to the European Convention on Human Rights.
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The removal of the individual before the appeals process would not pose a risk of serious irreversible harm to the individual if the individual was removed to the country proposed.
In an earlier judgment, the Court of Appeal ruled that the correct test is really what is set out in subsection (2) – whether the decision would breach a right of the European Convention on Human Rights.
Section 94B originally only applied to appellants facing deportation, however the power was amended by the Immigration Act 2016 to remove references to deportation. Therefore, it can apply to most non-asylum immigration appeals.
The Judgment
The Supreme Court quashed the certificates and gave the following reasons:
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The public interest ensuring that a right of appeal is effective is more important than the public interest in the removal of a foreign national criminal in advance of his appeal.
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Article 8 of the European Convention on Human Rights – the right to family and private life – requires that an appeal against deportation should be effective. Therefore, a section 94B certificate obstructs an appellant’s ability to effectively present his appeal against the deportation order. The Supreme Court then stated how it would be more difficult for an appellant to effectively present his appeal:
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The appellant and his lawyer would face large difficulties in giving and receiving instructions before and during the hearing.
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It would be unlikely that the appellant would be able to give live evidence to the tribunal.
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The Supreme Court has held that deportation prior to an appeal would therefore interfere with the appellants’ rights to respect for their private and family life in the UK.
Implications
It appears that no out of country appeal could be fairly determined, because as it stands, appellants are unable to provide live evidence due to the lack of provision of video link facilities for appeal hearings and no facility for an appellant to return to from abroad to give evidence.
Therefore, the Byndloss judgment brings a temporary end to the certification of immigration appeals requiring them to be brought from abroad. However, this could change in the future if adequate arrangements are made, allowing appellants to provide live evidence during their appeals.
What about appellants that have already been removed?
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If some appellants are still in touch with their lawyers, and their appeals have not yet been determined, they could apply for an injunction requiring their return to the UK to attend their hearing. This application would have to be made in an application for judicial review.
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For those who have not yet attempted to challenge removal, they might be able to seek return in order to lodge and pursue an appeal. However, they will have to organise a lawyer to bring a challenge on their behalf.
This case has important implications in ensuring that ordinary people can challenge the decisions of the executive. However, it will take more time to understand what the practical implications of the case are, and how individuals can challenge their removal.
Get in touch
Roots to Return is an organisation that supports individuals that have been given out of country appeal rights. Given this judgment, Roots to Return works with individuals abroad pursuing their immediate return to the UK, so to be able to appeal against their deportation.
Roots to Return encourages anyone affected by the issues raised in this case to get in touch, particularly if you or someone you know has been affected by the “deport first, appeal later” policy. We can provide advice on how to navigate this complicated legal process, and how to pursue a return to the UK, in order to be able to appeal against a deportation order.
Please contact us by email at rootstoreturn@gmail.com to get more information, to share your experiences, or to get advice on the issues touched on above.