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Supreme Court ‘deport first, appeal later’ judgment: a robust defence of supremacy of rule of law

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In a unanimous ruling, the Supreme Court has today struck down the controversial policy introduced by Theresa May as Home Secretary to force convicted foreign offenders to appeal deportation from abroad.

JCWI has consistently opposed this policy.

Commenting on the judgment, JCWI's Chief Executive Saira Grant said,

“This decision is about fundamental principles of fairness and access to justice. We are delighted the Supreme Court has reaffirmed the primacy of the rule of law. The Government has failed to establish that deportation before appeal strikes a fair balance between individual rights and the interests of the community. The Government however, went one step further last December and gave itself the right to remove from the UK anybody with a human rights claim before they were allowed to exercise their right to appeal. The Supreme Court has accepted, as we warned from the beginning, that it is almost impossible for someone to appeal from abroad. They have also upheld the rule of law by making it clear that the Home Secretary cannot simply avoid scrutiny by removing from the UK anybody who dares to disagree with her decision.

 ‘Deport first, appeal later’ was a key policy of Theresa May’s as Home Secretary. We call on Amber Rudd to review this policy and reaffirm the rights of all individuals to defend themselves in UK courts.”

The December 2016 extension of ‘deport first, appeal later’ beyond offenders to anyone with a human rights claim is also now under question, the Court suggested, acknowledging that while ruling on the extension did not fall within the remit of the current judgment, ‘our decision today will surely impact on the extent of its lawful exercise’.

The Court noted that appealing effectively from abroad is extremely difficult, saying in its judgment, ‘the financial and logistical barriers to [their] giving evidence on screen from abroad are almost insurmountable.’

The Court’s judgment notes that as of today only 72 people have lodged an appeal from abroad and to date none has been successful.

Introduced as part of the Immigration Act in 2014, ‘deport first, appeal later’ allows the Home Secretary to deport convicted foreign offenders and force them to appeal deportation from abroad. In December 2016 the Home Secretary’s power to force a removal appeal to be taken from abroad was extended beyond offenders to all individuals challenging their removal on human rights grounds.

  • The Supreme Court found that the Home Secretary acted unlawfully because she:
    • Routinely forced individuals to conduct appeals from abroad;
    • Did not provide a fair system compliant with human rights for doing so;
    • Did not ensure that the Ministry of Justice provided sufficient facilities e.g. video link at the hearing centre
    • Did not ensure that the individual would have access to such facilities for giving live evidence from abroad.
    • It was fundamentally wrong in principle that the Home Secretary as one side of the case, should be allowed to control the conduct of the other side’s case and what evidence they are able to present.


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