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    Supreme Court Judgement - Byndloss

    Judgement received from Supreme Court on Deporting Foreign Criminals first and appealing later.


    R(on the applications of Kiarie and Byndloss) v SSHD [2017] UKSC 42


    We represent Mr Byndloss in this case and following a difficult struggle in the High Court and the Court of Appeal the matter was heard by the Supreme Court on 15th and 16th February 2017. The case involved out of country rights of appeal for foreign criminals following the introduction of the section 94B certification procedure in the Nationality, Immigration and Asylum Act 2002 on 28th July 2014.

    The Supreme Court has handed down its judgement today unanimously allowing the appeals. The judgement delivered by Lord Wilson, with whom everyone but Lord Carnworth (who also allows the appeals but for slightly different reasons) agreed and found the certificates issued under section 94B were unlawful and incompatible with Article 8 as the foreign criminal’s removal in advance of an arguable appeal may be outweighed by a wider public interest, namely that where an appeal right is given, that appeal should be effective (para 35).

    Para 31 to 35 looks at the objectives of section 94B – The objectives of the SSHD were firstly, to stop allowing foreign criminals preventing deportation from dragging out the appeals process; secondly, to prevent foreign criminals building up a further claim under article 8 to a settled life in the UK (para 31) and thirdly and more fundamentally, they are foreign criminals (para 32).

    Below is a brief summary of the judgement:

    1. Para 37 of the judgement makes clear that Parliament had decided that the overarching criterion for certification under section 94B should be that removal pending appeal would not breach the claimant’s human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur. However once again the guidance that the SSHD provided to caseworkers did not make this clear. Instead it appears that caseworkers were routinely applying the certificates. Moreover Lord Wilson at para 39 distances himself from Richards LJ observations in the Court of Appeal and states the issue and focus is on the risk of serious harm to the prospects of an appellants appeal, as that could be a ground that removal would breach their Convention rights.

    1. Lord Wilson goes on to find at para 43 that in proceedings for judicial review of a certificate under section 94B, the court or the tribunal must also decide for itself whether deportation in advance of his appeal would breach the appellant’s Convention rights. Lord Wilson moves away from the Wednesbury assessment and confirms at para 47 that if the court or tribunal is to discharge its duty under section 6 of the 1998 Act, the court will need to be more proactive than simply apply the Wednesbury criterion. Therefore the court has a residual power to determine facts and to that end to receive evidence including oral evidence.

    1. The requirements of Article 8 are set out at para 48. Article 13 of the Convention plays a significant role in how Lord Wilson reaches his decision. Article 13 is set out at para 49. It protects a person’s right to have an effective remedy. Para 50 is fundamental as this sets the scene for what is required under Article 8 and sets out the jurisprudence of the ECtHR.

    1. It is from para 52 to 78 that Lord Wilson considers the relevant circumstances and considerations. Not to mention the very practical difficulties faced by appellants in bringing their cases in a way that would allow them to make full and effective use of their right to appeal before a tribunal after their deportation.

    1. The Court finds at para 76 that for the appeals to be effective, the appellants would need at least to be given the opportunity to give live evidence. It is not realistic or possible to give evidence via video link, the Court says the financial and logistical barriers to give evidence on screen are almost insurmountable.


    1. Para 78 confirms that the SSHD has failed to strike a fair balance between rights of the appellants and the interests of the community.


    I would like to thank everyone who contributed in providing evidence of the difficulties they faced in arranging video links. You will see from the judgement the evidence gathered was relied on and did assist in persuading the court of the practical difficulties appellants would face in bringing their appeals effectively. The time and effort put in by Counsel in this case, Manjit Gill QC, Ramby de Mello and Tony Muman was massive and I am grateful to them.


    Sanjeev Sharma

    JM Wilson Solicitors

    14th June 2017


    If anyone has been given a certificate by the Home Office under section 94B of the 2002 Act then please do get in touch with us immediately as we will be able to help.


    The full case details and judgement information can be found on the Supreme Court website.