By Victor Falcon Mmegwa
Recently, the Home Secretary, Suella Braverman MP, confirmed in a letter to the Chair of the Home Affairs Select Committee that the Home Office have suggested the use of certification under section 94B of the Nationality, Immigration and Asylum Act 2002 from 5 June 2023. This means that any appeal against the refusal of a human rights claim can only be made or continued while the person is outside the UK. It also means that the person can be removed before their appeal is heard.
A human rights claim can only be certified under section 94B if the person seeking any appeal from outside the UK would not be unlawful under section 6 of the Human Rights Act 1998. This would mean that the person being removed from the UK must not face a real risk of serious and irreversible harm before the appeal process is exhausted. However, in the case of Kiarie and Byndloss  UKSC 42, it was considered that it would be a breach of section 6 Human Rights Act 1998 to certify human rights claims where the claimant wished to give oral evidence in their appeal, but were not able to do so from outside the UK.
The Home Secretary stated in her letter that in order to comply with the judgment in Kiarie and Byndloss, any appeal from outside the UK following a section 94B certification will require facilities for any person to give evidence should they wish. This includes a room which is sufficiently private and has sufficient internet speeds to support high quality video calls for the necessary duration of the hearing.
The Foreign, Commonwealth & Development Office will confirm that the authorities in the countries from where video evidence is going to be given will have no objections to the use of a video link by their citizens or residents to provide evidence. Furthermore, they will ensure that the local law in that country does not prohibit it. The Home Secretary also stated that the Home Office is looking to initially focus on appeals of foreign national offenders and will only use section 94B certification where relevant assurances have been provided to the Foreign, Commonwealth & Development Office and where the necessary facilities are in place.
The Home Office have given their caseworkers instructions that they should not certify a claim where it is not possible for the claimant to give evidence at their appeal by video link. Following Kiarie and Byndloss, use of section 94B was paused while steps were taken to put in place measures to allow for video link facilities that would enable people to give evidence from overseas at their appeal. This means that a video link facility is available but also that the country has given consent for evidence to be given via a video link. The Home Office caseworkers are advised to check with the Overseas Video Team to confirm whether or not a video link can be arranged for the appeal and whether consent for the use of a video link has been agreed by the country. If the use of a video link is not possible then certification under section 94B will not be appropriate.
In our opinion, the judgment of Kiarie and Byndloss does protect the person’s Article 6 of Human Rights Act 1998 with regards to ‘Right to a fair trial’. However, with the measures of giving evidence via video link, I am not convinced that that this will achieve a ‘Right to a fair trial’ under Article 6 of Human Rights Act 1998.
We believe that the primary reason to re-commences ‘deport now, appeal later’ is to deter unfounded claims. This is done by preventing appeals that cannot succeed, where protection and human rights claims are clearly unfounded. Enabling any person to be removed once a decision is made and certified.
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