Case No. UKUT-00156-(IAC)

11.For those with an interest in the immigration jurisdiction, the terms of section 94B of the Nationality, Immigration and Asylum Act 2002 are by now well-known. The Secretary of State may certify a human rights claim made by P if she considers that, despite the appeals process not having been begun or not having been exhausted, refusing P entry to, removing P from, or requiring P to leave the United Kingdom, pending the outcome of the appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).12.In summary, the applicant contends that the certificate made under section 94B in his case was unlawful. It involved a breach of section 55 of the Borders, Citizenship and Immigration Act 2009 and, but for the asserted unlawful action of the respondent, the applicant would have been living with his family in the United Kingdom for the period up to and including the final determination of his statutory appeal against deportation. The section 94 decision and its ongoing maintenance led to a forced separation between the applicant and his British children for a lengthy period, constituting a “colossal and unjustified interference” severing the relationship between the applicant and his elder daughter and preventing the relationship developing between him and his son, who was born shortly after the appellant’s deportation from the United Kingdom. 13.The qualitative and quantitative nature of the applicant’s relationship with his children during the period of his absence in Jamaica was, thus, damaged, which in turn affected the merits of his appeal against the refusal of his human rights claim, in which he contended that his deportation as a foreign criminal would be contrary to section 6 of the 1998 Act. 14.Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to make arrangements for ensuring that (inter alia) any function in relation to immigration, asylum and nationality is discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. 15.Section 71 of the Immigration Act 2014, which inserted section 94B into the 2002 Act, provides that the 2014 Act “does not limit any duty imposed on the Secretary of State or on any other person by section 55 of the 2009 Act”. 16.Before engaging substantively with the applicant’s case in respect of the maintenance of the section 94B certificate, it is necessary to deal with a procedural matter. At the hearing before me on 4 February, Ms Naik QC applied for permission to rely on evidence in the form of a children’s social care initial assessment in respect of J and R. J is the applicant’s daughter born in 2008, whilst R is his son, born in 2016, after the applicant had been removed to Jamaica. The children’s social care records cover a period beginning in July 2008 and ending in December 2021, at which point safeguarding concerns had arisen in relation to R which I understand have led to R living with the applicant. 17.Mr Kovats QC, for the respondent, opposed the application. He said the material in question was not available to the respondent at any time during the currency of the section 94B certificate. The contents of the material were, furthermore, not matters of established fact. 18.In response, Ms Naik submitted that the material highlighted issues regarding the mother of J and R, which could have been identified by the respondent, had the latter complied with what Ms Naik described as the duty of enquiry inherent in section 94B, read with section 55 of the 2009 Act.19.At the hearing, I decided to admit the material de bene esse. I have concluded that the applicant should be able to rely upon the material, in support of the submission relating to the duty of enquiry. For the reasons I shall give, however, I have concluded that the respondent did not breach any such duty.20.I turn to the challenge for the maintenance of the section 94B certificate. The applicant advances this challenge on two bases; namely that the respondent breached Article 8 ECHR rights, in both their procedural and substantive aspects.21.I deal first with Article 8 in its procedural aspect. This was the focus of the Supreme Court’s attention in Kiarie and Byndloss. It is important to note that the present judicial review does not challenge the making of the section 94B certificate but, rather, solely the fact that the respondent maintained certification, until the Upper Tribunal directed her no longer to do so. The applicant’s removal to Jamaica was, accordingly, unquestionably lawful. A separate judicial review brought by the applicant to prevent that removal failed. Ms Naik submits that the judgment in Kiarie and Byndloss now establishes that, at the time of the applicant’s removal, any out of country appeal advanced by him would not have been an effective remedy. I find that submission goes too far. Although Lord Wilson had serious doubts about the ability of a person to mount an effective appeal from abroad, he did not conclude that no such appeal was possible. On the contrary, as the subsequent case law makes plain, he identified factors to be considered in deciding, in an individual case, whether an effective appeal could be brought from abroad. That case law has placed the First-tier Tribunal (and, by extension, the Upper Tribunal) at the heart of the mechanism by which the United Kingdom authorities are required to discharge their obligations under section 6 of the 1998 Act.22.This is graphically shown in the judgment of Hickinbottom LJ (sitting with Singh LJ) in