Brandon Lewis: Foreign criminals still have no place in UK after `deport first, appeal later policy` ruled unlawful

The Home Office has been left “disappointed” after its flagship policy for removing foreign criminals has been ruled unlawful by the Supreme Court.

New Immigration Minister Brandon Lewis says the Government will “carefully consider the implications” after the ruling dealt a hammer blow to a system designed to reduce the number of offenders fighting deportation on human rights grounds.

More than 1,100 foreign criminals have been removed from Britain under the `deport first, appeal later` policy, which was introduced in July 2014.

It was a Conservative manifesto pledge and denies foreign criminals the right to launch an appeal against deportation while they are in the country.

But lawyers say that the ruling handed down on Wednesday (June 14) was expected to “very heavily limit, if not entirely curtail” the routine use of the power.

However, ex-Policing Minister Mr Lewis told Police Professional: “The Government has consistently taken the view that foreign criminals have no place in the UK, and we will continue to take action to remove them.”

The Home Office added that foreign nationals who “abuse our hospitality . . . should be in no doubt of our determination to deport them”.

The landmark case, presided over by the deputy president of the Supreme Court, Lady Hale, and four other justices, said the system breached foreign criminals’ human right to an appeal as their ability to present their case from abroad was likely to be obstructed in a number of ways.

The case involved two men convicted of drug offences who had both served prison sentences. The first, Kevin Kiare, came from Kenya in 1997 with his family at the age of three. The second, Courtney Byndloss, a father of eight, came to the UK in 2002 and was later given leave to remain as the spouse of a British citizen.

In both cases the Home Secretary issued certificates that their human rights claims were “clearly unfounded” under 94B of the Nationality, Immigration and Asylum Act 2002. This had the effect of ensuring that they could only appeal against their deportation after they had returned to Kenya and Jamaica.

However, the Supreme Court said that even if either man was able to secure legal representation they would still face formidable difficulties in presenting a case.

It added: “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.”

The court ruling says the financial and legal barriers to the men giving their evidence live on screen are almost insurmountable. The justices say the Ministry of Justice’s failure to provide facilities abroad to enable them to give evidence means they have been deported without any human rights-compliant system in place that enables them to conduct their appeal.

The Supreme Court ruling stresses that the decision was not about whether they could resist deportation on family grounds but whether the Home Secretary had breached their human rights by deporting them before they could bring an appeal in Britain and without making proper provision for them to take part in appeal from abroad.

The lawyers said that the Home Secretary had certified 1,175 foreign national offender deportations as “deport first, appeal later” cases between 2014 and 2016. Only 72 of those individuals had filed a notice of appeal with the tribunal from abroad by the end of 2016.

The court noted that a few of the appeals may yet have been ruled upon by 13 February 2017.

But it noted that, as of that date, not one of the 72 appeals had succeeded.