Rebalancing the scales after ‘deport first, appeal later’

Imagine moving to the UK as a young man. You find work and set up life here. You meet a British woman. You fall in love. You get married, start a family. The UK becomes your home. But things are not always straightforward. You fall in with the wrong crowd. You start selling drugs. You are caught, convicted and sent to prison.  You count down the days before you will have repaid your debt to society, and can go back to your wife and children, restart your life.

But then you receive a letter from the Home Office.

You will be deported to Jamaica, the country you left 15 years ago, and you cannot even appeal before you go.  You will be torn from your wife and children, but will have no chance to put your case before a judge: you can appeal only after you have been deported.  Except that you won’t be able to get a UK immigration lawyer from Jamaica.  Even if you have the legal skills to represent yourself, you’ll struggle with practical details: is video link available at the local court? Can you afford it?

You read and re-read the 21-page letter that determines your future and that of your children. Despite evidence to the contrary, a faceless bureaucracy has decided that you do not have a ‘genuine and subsisting’ relationship with your children. With no legal options open to you, you must leave.

This was the situation Mr Byndloss found himself in when he tried to challenge his deportation order. Due to his conviction, his case was subject to the ‘deport first, appeal later’ rules. Despite his British wife and British-born children, despite having lived here lawfully since 2006, he would be deported without ever getting his case before a court.

‘Deport first, appeal later’ initially denied migrants who had committed criminal offences the right to appeal from within the UK unless they could show a ‘real risk of serious irreversible harm’ if deported. Then in 2016, this power was extended to include all immigration appeals, with the exception of asylum cases.

While Home Secretary, Theresa May ascribed avoiding unnecessary delay in deportations as the reasoning behind her flagship policy: “Foreign criminals will not be able to prevent deportation simply by dragging out the appeals process, as many such appeals will be heard only once the criminal is back in their home country.” But the statistics tell another story, of people losing access to justice altogether. Between 2014 and 2016, 1,175 people were deported under the ‘deport first, appeal later’ system, but only 72 individuals were able to make an appeal. As of February 2017, not a single appeal had been successful.

However, in a landmark judgment last month, the Supreme Court ruled the ‘deport first, appeal later’ policy unlawful and unfair. Mr Byndloss and another appellant argued that to deny them the right to an in-country appeal would breach their human right to private and family life. In response, the Home Office argued that deporting foreign national offenders was in the public interest, largely on the basis of public safety.

Judge Wilson disagreed and pointed to a wider public interest, “the public interest that, when we are afforded a right of appeal, our appeal should be effective.” The Supreme Court found that the system was not compliant with human rights standards as the Home Office could not ensure that an appeal from abroad would be conducted fairly. The Court pointed to difficulties giving live evidence, whether in person or via video link and found that ‘financial and logistical barriers’ to giving evidence were ‘almost insurmountable’.

According to immigration barrister Colin Yeo, the impact of the judgment is far-reaching. At the very least the decision brings ‘deport first appeal later’ to a temporary stop, and means that legal measures may be open to people who have already been deported.  However, Yeo warns that that the judgment does not necessarily prevent the Home Office from finding ways to bring the policy back.  We may yet see the return of UK residents being thrust onto planes without the chance to go before a court.