In the recent case of R (on the application of QR (Pakistan)) v SSHD  EWCA Civ 1413, it was held that despite the change in the law brought about by the Supreme Court decision in R (on the application of Kiarie and Byndloss) v SSHD  UKSC 42, the court did not consider it appropriate or proportionate to order the return of a deported applicant to pursue his in-country right of appeal. His appeal against the refusal to proceed with the judicial review was allowed, but the court refused his application for interim relief which would have enabled him to return to the UK to pursue an in-country appeal.
In the landmark 2017 case of Kiarie & Byndloss it was held that the policy ‘deport first, appeal later’ might be unlawful if the relevant safeguards concerning proportionality and justification of the measure taken were not taken into account. In that case it was held that the public interest in removing a foreign criminal prior to his appeal being heard had to be balanced against the public interest of ensuring that the appeal remained effective for the purpose of protecting his rights under Art. 8 ECHR. There are a number of matters which have to be taken into account before it can be established whether an appeal remains effective if it is forced to be conducted from abroad. These include the availability of legal advice and the arrangements for communicating instructions potential difficulties preventing the appellant from giving live evidence and problems associated with obtaining expert or other professional evidence from abroad. The burden is on the Secretary of State for the Home Department (“SSHD”) to show that a fair balance has been struck between the rights of the person subject to deportation and the interests of the community.
Posted by: Gherson Immigration, https://is.gd/kqpKTx