(Another) Conservative policy for the scrapheap?

July 3, 2017

Some three weeks ago, the Supreme Court delivered a hammer blow to the Home Office. The hit came in the form of a ruling that is likely to “very heavily limit, if not entirely curtail” the use of the Home Office’s ‘deport first, appeal later’ power on the grounds that it was in fact, an unlawful policy.

 

 

The system was in fact, a conservative pledge in their manifesto, having been introduced in July 2014. Although highly controversial, the power is used rather regularly. One does wonder how almost three years have elapsed before an appeal against this policy was brought. There have been some 1,175 cases where the power has been exercised, and as a result, only 72 appeals have been heard: none of which have been successful. This was during the years of 2014 to 2016 inclusive.

 

The controversial policy essentially denies foreign criminals the right to launch an appeal against deportation while they are in the UK. This immediately causes alarm bells to ring for many commentators. One of the many issues that appellants in these cases face is being obstructed in terms of the logistics involved in actually filing an appeal. There are then further practical issues, which the Supreme Court identified, and are discussed below.

 

The five judge panel, led by the deputy president of the Supreme Court, Lady Hale, picked up on the practical issues that appellants would face. A key consideration for the court was whether those being deported were able to appeal the decision without any such obstructions occurring. It was the ruling of the court that the policy did in fact breach a fundamental human right of foreign criminals through their right to an appeal. The appellant’s ability to present their case from abroad was likely to be obstructed.

 

The Supreme Court hones in on the financial and legal barriers to appellants giving their evidence live on screen, which they found to be almost insurmountable. Part of the damning judgment given by the Justices outline that it is in fact the Ministry of Justice’s failure to provide adequate facilities abroad. Such facilities are necessary to enable appellants to give effective evidence. The absence of such facilities is a clear indication that the accused have been deported without any human rights compliant system in place whereby they would be able to launch an appeal.

 

At paras 61 through 63, the following conclusion was reached:

 

“Further, the effectiveness of an arguable appeal is likely to turn on the ability of the appellant to give live evidence to assist the tribunal in its assessment of whether he is a reformed character and the quality of his relationships with others in the UK, in particular with any child, partner or other family member.”

 

Whilst this is a controversial area of law, this controversy is further fuelled in that there were other ‘potential’ considerations playing on the minds of the Justices. The Supreme Court, however, were quick to shut down such thoughts.

 

They had pre-empted arguments such as taking into consideration the family of the accused by stressing that the ruling given by the court was not about whether the appellants could in fact make a substantive argument that was capable of resisting deportation on family grounds. The main consideration for the court was whether the Home Secretary, in exercising her powers, had breached the human rights of the appellants by deporting them before they could bring an appeal in Britain. The rights were further breached as the Home Secretary had failed to make proper provision for those appellants to take part in their appeals from abroad.

 

Perhaps now the UK will see a change in stance from the government with regards to deportation appeals, particularly those where is alleged misconduct on the part of the accused. The result of this particular case may be the catalyst that causes an entire revisit of the area, where provisions could be made that would allow an internal appeal before deportation occurs.

 

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