An amendment to the Nationality, Immigration and Asylum Act 2002 allowed convicted foreign criminals to be deported from the UK without the right to appeal first. Instead appellants had to appeal from abroad, often via live video.
The Immigration Act 2016 expanded this power so that other appellants, not just foreign criminals, could be forced to make out of country appeals. In the case of R (Kiarie and Byndloss) v Secretary of State for the Home Department  UKSC 42, the Supreme Court has found this practice unlawful as it is incompatible with the right to an effective appeal.
In this case, one claimant challenged his deportation and the other challenged his impending deportation. The court noted that an effective appeal was a right and that forcing the appellant to appeal from outside of the country had to be justified as ‘in the public interest’. The Home Office argued that it was in the public interest to deport the appellants as there was a risk they might re-offend. The appellants argued that it was in the public interest to allow an effective appeal, which could not be achieved from abroad.
The court considered the practice of live video appeals and noted that the facilities to make an appeal from abroad may not be available to the appellant, or only at substantial expense. It also found that live video appeals were less effective than in-country appeals and access to expert evidence was limited. The court held that an effective public appeal was a wider public objective than the risk of re-offending and that an appeal from abroad is not an effective one.
The court also considered the objectives and the reality of the practice of out of country appeals. Parliament intended deportations to comply with human rights law and thus be lawful. A deportation that did not ‘risk serious irreversible harm’ was given as an example of a lawful deportation when the amendment was passed. However, the guidance given to case workers focused only on removing foreign criminals when there was no risk of serious irreversible harm. Parliament had suggested this only as an example and by overly emphasising this criterion, caseworkers ignored wider human rights issues.
The appellants can now challenge the legality of the practice in a judicial review claim.