Case No. UKUT-00156-(IAC)

(2008) 47 EHRR 40, the court found a breach of Article 8 because neither the local authority, which had required the applicant’s wife to sign a notice to quit, nor the domestic courts had considered the applicant’s Article 8 defence to procession proceedings. On the facts of that case, the Strasbourg Court held that judicial review would not have been an effective remedy because “it did not provide any opportunity for an independent tribunal to examine whether the applicant’s loss of his home was proportionate under Article 8(2) to the legitimate aims pursued”.26.By contrast, in the present case, the applicant has, at all material times, had access to a court or tribunal that was able to ensure compliance with Article 8 in its procedural (and, indeed, substantive) aspect. Whilst the applicant’s case was before the First-tier Tribunal, he could have asked the tribunal to rule that he could not effectively pursue his human rights appeal from outside the United Kingdom. The applicant did not need to wait until the time fixed for his substantive hearing, in order to put such a case. That case could have included a submission that, owing to any delay in holding the substantive hearing, his Article 8 case was being degraded, as a result of his lack of physical contact with his children.27.In this regard, the fact that the respondent was responsible for bringing about that lack of physical contact is immaterial. It certainly does not entitle the applicant to fix the respondent with legal responsibility for any such harm arising from the delay.28.If the applicant had applied to the First-tier Tribunal for an “AJ”- style direction and that tribunal had refused to make one, its refusal would have been susceptible to judicial review in the Upper Tribunal. The refusal would have been a “procedural, ancillary or preliminary decision” within the meaning of article 3(m) of the Appeals (Excluded Decisions) Order 2009. 29.This is the answer to the applicant’s submission that, at the time of Kiarie and Byndloss in the Court of Appeal and the Supreme Court, there was limited evidence regarding delay and waiting times for appeals and that the respondent had merely asserted to the Supreme Court that section 94B appeals could be fast-tracked or expedited. 30.I agree with the respondent that the applicant’s complaint appears, in truth, to be with the Upper Tribunal’s decision to stay the present application for judicial review, and subsequently to maintain that stay whilst the appeal proceedings were extant, rather than being against any conduct of the respondent. If, as the applicant now contends, the respondent could not lawfully maintain the certificate because doing so would be contrary to section 55 of the 2009 Act or would be otherwise unlawful for some reason that could not be satisfactorily addressed by the First-tier Tribunal and/or the Upper Tribunal in the appeal proceedings, then the applicant ought to have appealed against the Upper Tribunal’s decision to stay the judicial review. He did not do so. 31.In any event, I find no error on the part of the respondent. Emails between the respondent’s caseworker and the social services department of the relevant London Borough Council in August 2016 show that the respondent was considering the applicant’s position, vis-à-vis deportation, against the background of the concerns of children’s services in respect of J. The respondent’s decision to refuse the human rights claim of the applicant, against which he exercised his right of appeal, makes express reference to the applicant’s submission that his deportation order should be revoked, as there had been a change of circumstances in that children’s services had initiated a child protection proceedings regarding J. The respondent engaged with that submission in the context of Article 8 and, specifically, section 55 of the 2009 Act. The respondent was aware that children’s services had instigated a child protection plan for J but “as far as we are aware, [J] currently remains under the care of her mother who is her primary carer”. Later, at paragraph 74, consideration was given to whether removal pending the outcome of the applicant’s appeal (if made) would give rise to a real risk of seriously reversible harm to the applicant “or his children [or] to his relationship with them, or would otherwise breach either your client’s or their human rights”. At paragraph 75, express consideration was given to section 55. There then followed an explanation of why it was not accepted that it would be in J’s best interests for the applicant to be able to appeal from the United Kingdom. Even if that were accepted, however, the respondent considered it was outweighed by the strong public interest in deporting the applicant “as quickly and efficiently as possible given his serious drug offences”. 32.Since that last consideration regarding the public interest was merely an alternative conclusion, its correctness is immaterial. Discussing the nature and strength of the public interest in interim removal, Lord Wilson at paragraph 35 of Kiarie and Byndloss suggested that a “somewhat stronger aspect of the public interest is the risk that, if permitted to remain pending his appeal, the foreign criminal would, however prejudicially to its success, take that opportunity to re-offend. To that extent there is a public interest in his removal in advance of the appeal”.33.A somewhat broader view of the public interest was taken by the Court of Appeal, at paragraph 37 of the judgment of Sir Timothy Lloyd in