Deport first, appeal later – is it fair?

Our Andrew Jones was the solicitor in this important case from the Upper Tribunal. How fair is it to deport someone without an appeal hearing in the UK and then expect them to mount an appeal from abroad with all the hurdles that entails? Andrew gives his account of the case;

In Juba (s. 94B: access to lawyers) [2021] UKUT 95 (IAC), the Upper Tribunal has given further guidance on the approach to be taken when deciding whether an appeal against a deportation decision can be effective where the appellant has been deported before their appeal is heard.

Mr Juba, who came to the UK when he was one year old in 1989, was deported to Nigeria in July 2015 following a criminal conviction. The Home Office had ‘certified’ his case under section 94B of the Nationality, Immigration and Asylum Act 2002, which meant that he could not appeal against the deportation decision until after he had been deported.

This is the second time that Mr Juba’s case has been heard by the Upper Tribunal (UT). In a previous judgment (AJ (Section 94B; Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC)), the UT had decided that, in dismissing his appeal in 2017, the First Tier Tribunal (FTT) had wrongly failed to assess whether the appeal could be fair and effective and had returned the case back to the FTT to be re-heard.

The FTT heard the case again in February 2020. I gave evidence about the problems that we had had in communicating with Mr Juba by phone and email and how this had created significant difficulties in the proper preparation of his case. We argued that he should be brought back to the UK so that he could properly participate in the preparation of the appeal. However, the FTT rejected our argument that the difficulties prevented him from having a fair hearing, and went on to decide that Mr Juba’s human rights had not been breached by his deportation.

The Upper Tribunal has now upheld the FTT’s reasons for deciding the appeal procedure in this case had been fair (while emphasising that the answer to this question in individual cases will depend on the specific facts).

At paragraph 50 and 51 the UT gives this guidance;

“There may, of course, be circumstances where, at some point before the hearing is due to take place, it will be evident that the appellant’s legal adviser is simply not in a position to mount an effective case, owing to the appellant being outside the United Kingdom.  In such circumstances, it would manifestly be wrong to undertake the hearing.

Where, however, the position is not clear cut, it will be a matter for the Tribunal to decide whether it addresses the first question after the hearing has taken place….. [The first question being “has the appellant’s removal deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers?”]

…matters may arise during that hearing which show the question falls to be answered in favour of the appellant.  We do not agree, however, that it can never be the case that the answer may fall to be answered in the negative, once the hearing has occurred.  For example, the oral evidence may disclose that an issue upon which it might have been thought the adviser was without relevant instructions is not, in fact, relevant to the outcome; or that what might otherwise have been thought to have been a “gap” in the adviser’s instructions is not of such a nature.

‍The Tribunal must, however, guard against the danger that, merely because it appears all has proceeded smoothly at the hearing, this necessarily means there has been no actual impediment in the giving of instructions and receiving of advice.”

Whilst concluding that the process was fair the Upper Tribunal did, however, set aside the FTT’s decision on whether deportation had breached Mr Juba’s human rights, and that issue will be decided again at another hearing.

Counsel instructed were Martin Westgate QC and Marisa Cohen of Doughty Street Chambers.

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