Foreign national prisoners facing deportation have won permission to bring test case appeals against new laws aimed at removing them from the UK as quickly as possible.
The landmark human rights cases involve two convicted drug offenders facing removal – even though they have launched legal actions to block being deported.
They are the first to come before the Court of Appeal challenging Home Secretary Theresa May’s new “deport first, appeal later” regime.
Lord Dyson, Master of the Rolls, sitting with Lord Justice Underhill, gave the men permission to appeal.
The challenges are being brought by Kevin Kinyanjui Kiarie, a Kenyan who came to the UK as a child in 1997, and Courtney Aloysius Byndloss, a Jamaican father of at least seven children born in the UK.
Both have been told they must conduct their battles against removal respectively from Kenya and Jamaica. They say the Home Secretary’s powers to order out-of-country appeals violate their human rights, including the disruption caused to family life and – in the Byndloss case – the harm a deportee’s removal, even if only temporary, could cause his children. Lawyers for the men also point to the difficulties in obtaining a fair appeal hearing in places far from the UK, without legal aid while facing other serious obstacles, such as gaining access to video-link or internet facilities.
The appeal court ordered a stay on their deportations pending their appeals. It is understood that deportations in other cases could also be halted pending a final ruling.
Lord Justice Underhill said: “It is clearly important the court considers these recently introduced provisions which make a significant difference to the way in which the Secretary of State is able to deal with cases of deportation of foreign criminals.”
He said other similar cases were “in the pipeline” and there had to be “an authoritative and early decision of this court for the guidance and tribunals who have to evaluate these provisions in the future”. The deportation powers were introduced by the Immigration Act 2014, which amended the Nationality, Immigration and Asylum Act 2002 by inserting a new section 94B. This allows the Home Secretary to certify that appeals against deportation are fit to take place out-of-country and there is no “real risk of serious irreversible harm” being caused to the appellant.
Previously deportation cases carried an automatic right of appeal in the UK, which led to criticism the legal system could be used to delay deportations for years, with applicants lodging appeals and requests for judicial review in the British courts.
Home Office figures show more than 1,000 people have been removed under the tough new provisions since last year.
Kiarie, 21, claims that his removal from the UK would be contrary to his Article 8 “right to family life” under the European Convention on Human Rights.
Kiarie, who entered the UK as a dependent of his asylum-seeking mother and was given indefinite leave to remain, was convicted and fined in September 2013 of using a motor vehicle while uninsured, resisting or obstructing a police constable and failing to surrender to custody.
Convictions and jail sentences followed in 2014 for possession of heroin, cocaine, crack cocaine and cannabis. In July that year he was notified of his liability for deportation.
In May 2013 Byndloss was jailed for three years at Wolverhampton Crown Court for possessing Class A drugs with intent to supply. He also has convictions for violence of “a relatively low order”. He was served with notice of liability to automatic deportation in June 2013, and a deportation order was signed in October 2014.