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'Clearly unfounded' certificates

Chapter number: 
3
Section: 
The Decision
Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson & Alison Pickup

3.1 The most urgent point to check when you receive the refusal letter is whether the claim has been certified as 'clearly unfounded'.

3.2 […]

3.3 The effect of a 'clearly unfounded' certificate under s.94 of the 2002 Act is that your client is denied any in-country appeal before being expelled to her country of origin. She may bring an appeal from her home country but the Court of Appeal noted in ZL and VL v SSHD [2003] EWCA Civ 25 that this is 'scant consolation' when she has already been removed to the country where she fears persecution and human rights abuses. Such appeals are not covered by this text.

3.4 The only means of preventing the Home Office removing your client without an effective appeal on the merits is to judicially review its certificate. This chapter gives a summary of some of the procedures and issues involved up to the consideration of the permission application on the papers. But these cases are complex, the Home Office tends to fight them hard, and the extraordinarily tight time limits applied to claimants mean that a mistake can be disastrous. They should be undertaken only if you are experienced in bringing judicial review proceedings. Otherwise, refer the judicial review to someone else.

3.4A This chapter also considers the Home Office's powers to certify human rights appeals brought by foreign criminals under s. 94B of the 2002 Act, inserted by the Immigration Act 2014 (see Preface for an explanation of when these powers are available). S. 94B certificates also have the effect that any right of appeal can only be exercised from outside the UK.

The test for certification

3.6 If your client is from a designated country, the Home Office is required by s.94(3) to issue a certificate if the claim is clearly unfounded. For other countries, he has a discretion whether or not to certify a claim that is clearly unfounded.

3.7 The following countries are designated under s.94(4) (as amended by subsequent orders): Albania, Jamaica, Macedonia, Moldova; Bolivia, Brazil, Equador, South Africa, Ukraine; India; Mongolia, Bosnia-Herzegovina, Mauritius, Montenegro, Peru, Serbia, Kosovo and South Korea. The designation of a country may be challenged by judicial review if the criteria in s.94(5) are not met.

Section 94(5) provides that

(5) The Secretary of State may by order add a State, or part of a State, to the list in subsection (4) if satisfied that –

(a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and

(b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention.

3.8 Sections 94(5A-C) permits designation of a State in respect of a 'description of person'. The term 'description of person' is defined by s.94(5C) to encompass:

(a) gender

(b) language

(c) race

(d) religion

(e) nationality

(f) membership of a social or other group

(g) political opinion, or

(h) any other attribute or circumstance that the Secretary of State thinks appropriate.

The following countries are designated in respect of men only: Ghana, Nigeria, Gambia, Kenya, Liberia, Malawi, Mali, Sierra Leone. The APG on Non Suspensive Appeals: Certification under Section 94 of the NIA Act 2002 states at para 3.2 that "The definition of men only for this purpose is males over the age of 18. There is no obligation to certify the claim of a male under the age of 18 from one of these designated states". The Court of Appeal in R (MD (Gambia)) v SSHD [2011] EWCA Civ 121 concluded that this was the correct interpretation of the Order, having regard to the fact that age is also a "potentially relevant attribute" which could form the basis of certification.

3.8A The designation of a country may be challenged by judicial review if the criteria in s.94(5) are not met. In R (Husan) v SSHD [2005] EWHC 189 (Admin), Wilson J held that the designation of Bangladesh was unlawful because no reasonable Secretary of State could hold that there was in general no serious risk of persecution. The designation of Sri Lanka was withdrawn in the face of judicial review proceedings challenging the Home Office's failure to act notwithstanding the breakdown of the ceasefire.

3.8B However, in MD (Gambia) [2011] EWCA Civ 121, the Court of Appeal emphasised that the Secretary of State had a wide margin of appreciation in deciding to designate a State and held that, although there was 'troubling' evidence of human rights abuses in Gambia, they were not sufficiently generalised or systematic to mean that the Secretary of State could not designate it. Applying the test in R v SSHD, ex parte Javed [2001] EWHC 7 (Admin) (which related to the previous legislation), Elias LJ said that "the persecution must be sufficiently systematic properly to be described as a "general feature" in that country, and this in turn requires that it should affect a significant number of people". He concluded that "the human rights infringements were not so systemic or general as to compel the conclusion that as a matter of law Gambia could not properly be designated". However, the extent of that evidence could weigh against certification in the individual case.

3.8C In R (JB (Jamaica)) v SSHD [2013] EWCA Civ 666, the Court of Appeal found the designation of Jamaica to be unlawful because of the accepted evidence of serious violence targeted at the LGBT community and of a general lack of state protection for that community. The majority of the Court of Appeal found that the Home Office was wrong to argue that because the LGBT community was only a minority, comprising on the evidence about 5-10% of the population, the risk could not be described as "general" or "significant". Sir Malcolm Pill concluded that "a state in which there is a serious risk of persecution for an entire section of the community, defined by sexual orientation and substantial in numbers, is not a state where in general there is no serious risk of persecution". At the time of writing, however, Jamaica remains on the list of designated states and is referred to in the latest version of the APG without qualification.

3.9 In ZT (Kosovo) v SSHD [2009] UKHL 6, Lord Phillips approved the judgment of the Court of Appeal in ZL and VL v SSHD [2003] EWCA Civ 25 that the threshold test for determining whether a claim is clearly unfounded should be applied in the same way whether or not the country is designated. Lord Phillips said that "The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof" (para 22). The practical effect of designation is nevertheless very significant, as the Home Office certifies far more claims from designated countries as a matter of policy, and those who are from designated states are more likely to have their asylum claims processed in the detained fast track.

3.9A While the consequences of a s.94 certificate are dire, the test for certification is correspondingly "extreme" (see Lord Philips in ZT [2009] UKHL 6, para 20). In SSHD v R (Razgar) [2003] EWCA Civ 840 [2003] INLR 543, the Court of Appeal emphasised the 'very high threshold' that had to be met before a claim could be characterised as 'clearly unfounded', explaining that:

The Secretary of State cannot lawfully issue such a certificate unless the claim is bound to fail... It is not sufficient that he considers that the claim is likely to fail on appeal, or even that it is very likely to fail. Moreover, as the House of Lords explained in Yogathas, the court will subject the decision of the Secretary of State to 'the most anxious scrutiny'. [emphasis added]

3.9B The House of Lords' dismissed the Home Office's appeal against that judgment in R v SSHD, ex parte Razgar [2004] 2 AC 368 [2004] UKHL 27, again emphasising the high threshold. Lord Carswell stated that while there were strong indicators in favour of the Home Office's case, "I could not be fully satisfied, however, that the case is so clear in favour of upholding the decision to remove the respondent that no reasonable adjudicator could hold otherwise". In ZT [2009] UKHL 6, Lord Phillips said that "If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded."

3.9C The House of Lords also established in ZT [2009] UKHL 6 that where a claim has been certified as clearly unfounded so that no appeal can be brought before removal, the fresh claim test is applied to further evidence and submissions advanced following the certificate. However, it also established that the test is the same as the test for certification so that a claimant who has not yet had any opportunity to put his case to a judge is not prejudiced by the adoption of this approach rather than simply considering whether the certificate should be withdrawn in light of the further evidence.

3.9D The Court of Appeal also confirmed in R (YH) v SSHD [2010] EWCA Civ 116 that the burden of proof gives rise to no practical difference between the two tests. The burden is on the Home Office to establish that the claim is 'clearly unfounded' before it can lawfully certify it. But whereas the burden is on the claimant to produce something new to trigger the para 353 consideration, once she does so, the burden is again on the Home Office to satisfy itself that the new material fails the fresh claim test, and anxious scrutiny requires that "the benefit of any realistic doubt will be given to the claimant".

3.9E The instruction on certification, "Non-Suspensive Appeals: Certification under Section 94 of the NIA Act 2002", now states that submissions made following a clearly unfounded certificate should be considered under rule 353 and if the fresh claim test is met, the certificate should be withdrawn.

3.10 In ZT [2009] UKHL 6, the House of Lords also confirmed that on judicial review of a clearly unfounded certificate, the Court will determine for itself whether an appeal would be bound to fail. Lord Phillips cited his observation in ZL [2003] EWCA Civ 25 that:

the test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not...

3.11 In ZL [2003] EWCA Civ 25, Lord Phillips, giving the judgment of the Court of Appeal, also stated that given that the Court asked the same question as the Home Office when applying the threshold test and was in as good a position to answer it, then it could have regard to evidence that had not been the subject of any decision by the Home Office, so long as the evidence was available to the Home Office:

"We have... concluded that a [decision on whether a claim is clearly unfounded] is one which the court is as well placed as the Home Secretary to take, and we go on to review the evidence in that light..."

This means that the Court should be prepared to have regard to relevant evidence in determining this objective test whether or not it has been considered by the Home Office.

3.12 Some cases will be certified after being subjected to a 'fast track' procedure in which the claimant is detained. The Court of Appeal concluded in ZL [2003] EWCA Civ 25 that the fast track procedure was fair in the context of what the claimant must do to avoid certification:

We would emphasise once again that the object of the fast-track procedure is to give applicants the chance to demonstrate that they have, or may have, an arguable case. We consider that the procedure affords them a fair opportunity to do this.

3.13 The Court noted that:

[I]n some cases medical evidence will be required to support a protection claim and... in such circumstances, it is likely to prove impossible to bring a suitably qualified medical expert onto the site in the time available. In such cases, and in analogous cases, we would expect it to be recognised that the fast-track procedure is not appropriate and the decision deferred.

3.14 It also stated that:

[I]n a case where the authenticity of documents remains in doubt and the issue of their authenticity is critical, we do not see how a claim can properly be declared clearly unfounded.

3.15 As to country expert evidence, the Court of Appeal accepted that it would not be possible for a claimant herself to obtain and adduce expert evidence in the time permitted by the fast track process. However, it was influenced by the fact that in those cases, representation from the RLC and IAS was available on site in the detention centre and these organisations collated expert evidence as an 'ongoing process' and were not simply driven by individual applications. With the demise of both these organisations in 2010 and 2011 respectively, and representation now provided by much smaller firms of solicitors, the need for cases requiring expert evidence to be transferred out of the fast-track process will be much greater.

3.15A In R (MK (Pakistan)) v SSHD [2012] EWCA Civ 1145, the Court of Appeal quashed a decision to certify a claim as clearly unfounded where there was a need for specific inquiries as to whether in the individual circumstances of the appellant's case, adequate protection would be available to her, and whether she could internally relocate. The Home Office's case that she had failed to seek protection which would reasonably have been available to the appellant was one which "requires investigation and an opportunity to give oral evidence". As to internal relocation, Pill LJ held that:

The appellant could not demonstrate and could not be expected to demonstrate that people she feared would or would not be able to follow her to other parts of Pakistan. That is a matter for enquiry by the Secretary of State, if appropriate at a judicial hearing. The decision letter appears to rely on the inability of the appellant herself, an educated but hardly streetwise person, to know the manner in which the terrorists operations are conducted. That was essentially a matter for enquiry, and for the Secretary of State to rely on the inability of the appellant herself to provide such evidence does not justify a finding that the decision was clearly unfounded.

3.16 In view of the high threshold test, it should be unnecessary at this stage to obtain expert evidence going to the plausibility of your client's account. It will not ordinarily be possible for the Home Office to say that the Tribunal would be bound to reach one credibility finding or another after hearing oral evidence. The APG on Non-Suspensive Appeals recognises that

"When considering certification under section 94, claims are assessed at their highest and are only certified when they are bound to fail, even if it is accepted that the claim is true. It is therefore rare for credibility issues to be addressed within certified decisions" (para 2.2).

3.16A The Court of Appeal in ZL [2003] EWCA Civ 25 pointed out, in response to concerns about the time required to obtain expert evidence on country conditions, that:

The individual's own experience may raise a question as to whether, at least in the part of the country from which he has come, persecution is occurring... In such a case the applicant's claim will not be clearly unfounded and the claim should not be certified.

3.16B Home Office policy is that it will not issue a certificate where "an individual makes an asylum claim and a human rights claim and only one of these is clearly unfounded" (APG on the Non-Suspensive Appeals process).

Tactics and procedure

3.17 If the claim has been certified, the immediate priority is to check whether removal directions have been issued: this will determine the degree of urgency.

3.18 You then have to analyse the refusal letter to determine whether the Home Office has demonstrated that a judge would be bound to dismiss the appeal. If its reasoning does not establish this test, you can then apply for public funding to challenge the certificate by judicial review if you do not have devolved powers.

3.19 Refusal letters tend to be longer than the norm where a s.94 certificate is issued. They are also far more likely to quote country evidence and caselaw (sometimes copiously). This is often in support of an argument that there is a 'sufficiency of protection' in the country of origin. The citation of caselaw may well be selective, raising serious issues of propriety in the context of a fast track procedure with such catastrophic potential consequences. One of your initial tasks in these circumstances will be to perform a search of relevant caselaw to determine whether it is as adverse and uniform as the Home Office claims.

3.20 The Home Office usually accepts that it cannot rely on its views on credibility in order to show that the appeal would be bound to fail (see para 3.16 above). Work through your client's account carefully to check whether the Home Office has failed to appreciate relevant elements. As indicated by the Court of Appeal, your client's experiences of ill-treatment may contradict the Home Office's claims that persons such as your client are at no real risk. It may have missed or downplayed facts which exacerbate future risk, e.g. the extent to which your client was targeted individually.

3.21 There may well be aspects of the Home Office's reasoning that can be addressed through further representations and evidence. Expert analysis of the refusal letter can be invaluable in order to deal with the Home Office's contentions on matters such as sufficiency of protection. You should ask your expert to comment on relevant aspects of any OGN and Country Report (see chapter 17) as well as the reasoning in the refusal letter. The benefit of expert opinion on Home Office country of origin publications is demonstrated by Atkinson v SSHD [2004] EWCA Civ 846. Note also the dicta in R (Sinnarasa) v SSHD [2005] EWHC 1126 (Admin) to the effect that it should not be assumed for the purposes of certification that an expert would be unable to deal with adverse points in cross-examination. See also chapter 17 regarding the role of the Independent Chief Inspector's Independent Advisory Group on Country Information (IAGCI). The Home Office was required to establish its predecessor panel (the APCI) by s.142 of the 2002 Act and the Secretary of State has confirmed to the APCI that:

'ministers gave clear assurances (during the passage of the 2002 Act and debates on affirmative orders made under that Act to add countries to the NSA list), that the APCI would be consulted on the country information being used by the Government before making an order to designate a country.'

3.21A Your client may also be able to add relevant evidence, particularly if the Home Office has given no prior notice of adverse points on which it intends to rely in the refusal letter.

3.22 The Home Office usually rejects any request to defer removal in order to allow for further evidence in response to the refusal letter: such evidence can be submitted after you have lodged judicial review proceedings (thereby protecting your client from expulsion in the meantime).

3.23 If the Home Office appears to have done enough to justify its certificate on the basis of the evidence already before it, you must consider whether there is further evidence (e.g. expert evidence) that could be obtained to show that the appeal is arguable. If so, you should contend strongly to the Home Office that fairness demands that you have a reasonable opportunity to submit evidence in response to the refusal letter. If the Home Office refuses a reasonable request to permit you to obtain specific relevant evidence, this refusal may itself give grounds for judicial review. As indicated above, the APG accepts in the light of the decision in ZT (Kosovo) v SSHD [2009] UKHL 6 that it must consider any representations submitted following certification and prior to removal as further submissions and (save where a fresh immigration decision is anyway required) apply paragraph 353 of the Immigration Rules. In such circumstances, paragraph 353A prohibits removal until the further submissions have been considered.

3.24 The EIG (Enforcement Instructions and Guidance), Chapter 60 (Judicial Review and Injunctions) states that:

Non-suspensive and third country cases do not attract a statutory in-country right of appeal. When you give notice of removal to an individual in these cases, you must satisfy yourself that they have the opportunity to access the courts before their departure is enforced. If notice of removal is given at the same time as the NSA or third country decisions this is likely to be their first opportunity for legal redress. A minimum of five working days notice should therefore be given between giving notice of removal and the removal itself. (2.3, page 6)

This longer period of five working days' notice will not be given for removal directions where the NSA decision has already been judicially reviewed, or where removal directions have previously been set with five working days notice and failed for other reasons. In those cases, 72 hours notice will normally be given (see section 3.1.3 of Chapter 60 EIG).

3.25 Given the removal of devolved powers for judicial review applications since the introduction of LASPO, it is necessary to apply to the LAA directly. The LAA has a dedicated email address for emergency applications for public funding where a decision is needed in less than 48 hours (immigrationapps@legalaid.gsi.gov.uk), and operates an out of hours service for evening and weekend applications where funding is needed to apply to the duty judge (asylum-out-of-hours@legalaid.gsi.gov.uk). If emergency funding is refused, a full application will have to be made and if the refusal is maintained, the LAA can arrange for an Independent Funding Adjudicator ('IFA') to hear the appeal within 24 hours.

3.26 Counsel can be instructed through Legal Help to provide an advice on the merits. You should be proactive in your application to the LAA in order to address its concerns. If public funding is refused, it is essential to make written submissions addressing the LAA's reasons for refusing public funding. If funding is refused, the IFA may be the only tribunal to have considered the merits of your client's asylum/human rights case before she is expelled.

3.27 The Home Office will not defer removal based on a notification of intention to instigate judicial review proceedings, although note that Chapter 60 of the EIG emphasises the importance of ensuring "that the person concerned has had the opportunity to lodge a claim with the courts" in NSA cases given the lack of an in-country appeal right. Once a claim form is lodged with detailed grounds and in compliance with part 5 of the Senior President's Practice Directions on Immigration Judicial Review (for cases proceeding in the Upper Tribunal; part 18 of PD54 for cases which are issued in the Administrative Court because they include a challenge to detention), in most cases Home Office policy is that removal directions will be deferred on receipt of the sealed claim form and detailed grounds (but note the exceptions in the policy, the most significant of which is where removal is by charter flight and special arrangements have been notified in accordance with para 6.1 of Chapter 60 EIG, in which case an injunction needs to be obtained).

3.27A Once the judicial review is lodged and the reference number communicated to the Home Office, you must again be proactive in ensuring that removal directions are cancelled. Do not rest until you have specific (normally written) confirmation of this. Home Office procedures are far from infallible and it has been known to remove claimants by mistake after a judicial review has been lodged. If this happens, you need to contact the Treasury Solicitor urgently before the flight lands in the country of origin. The Treasury Solicitor ought to arrange for your client to be brought straight back. If not, an emergency application to the duty judge will be required.

3.28 The Home Office escapes stringent time limits in this procedure. It regularly takes the full period permitted for lodging the Acknowledgment of Service and Summary Grounds. Use this time to obtain and submit any further relevant evidence.

3.29 The Acknowledgement of Service may well be accompanied by a new refusal letter countering the points made in your Claim Form and in any further evidence or representations you have submitted. This means that the judge may be invited to refuse permission on the basis of a new decision by the Home Office which you have not had any opportunity to consider. You should make immediate representations to the Upper Tribunal or the Administrative Court (if your case is proceeding there) seeking a reasonable opportunity to respond to the fresh decision letter before permission is considered. If the Upper Tribunal or Administrative Court is otherwise ready to decide the application on the papers and declines to defer consideration, the judge may at least be more inclined to list for oral hearing rather than dismissing the application on the papers do they do that. This is important in securing representation for the client since the LAA regularly withdraws public funding once there is a refusal of permission on the papers.

3.30 If consideration on the papers does result in permission being refused, you will have to make a further application to the LAA to extend public funding for an oral renewal. The Home Office's Acknowledgement of Service and any further refusal letter together with the judge's reasons must be addressed in detail in the grounds accompanying the public funding application. If the judge has relied on new points taken by the Home Office to which you had no opportunity to respond, then this should be emphasised (together with how you intend to respond to them).

s 94b certificates

3.31 Section 94B applies to appeals against the refusal of a human rights claim by a person who is liable to deportation under s. 3(5)(a) or s. 3(6) Immigration Act 1971 on or after 28 July 2014. Note that this includes people subject to automatic deportation under the UK Borders Act 2007 because in such cases, liability to deportation still arises from the 1971 Act. On the other hand, it does not apply to family members liable to deportation under s. 3(5)(b) of the 1971 Act. The effect of s. 94B certification, as with s. 94, is that an appeal may only be brought or continued from outside the UK.

3.32 S. 94B(2) and (3) provide:

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an 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).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.

3.33 Section 94B does not apply to appeals against the refusal of a protection claim so if your client has sought asylum or humanitarian protection, her claim cannot be certified under s. 94B. While it does in principle apply to claims made under Articles 2 or 3 ECHR, the Home Office's certification guidance accepts that such a claim cannot be certified because, if the claim is not clearly unfounded, "it will be arguable that there is a real risk of serious irreversible harm" (Section 94B certification guidance for Non-European Economic Area deportation cases – 'the Certification Guidance').

3.34 The statutory test for s. 94B certification is set out in s. 94B(2): would removal of the appellant pending the determination of her appeal be unlawful under section 6 of the Human Rights Act 1998? The test of "real risk of serious irreversible harm" in s. 94B(3) is an example of when it would be unlawful to remove the appellant before her appeal has been considered, but it is not exhaustive of the circumstances in which removal would be unlawful.

3.35 As with s. 94 certification under the 2014 Act, a s. 94B certificate can be applied even after the appeal has been lodged and will then prevent the appeal from being continued while the appellant remains in the United Kingdom. The Certification Guidance advises caseworkers to consider certifying an appeal during the appeal process, for example where an appeal which was brought in the First-tier Tribunal against the refusal of a protection claim and a human rights claim is proceeding in the Upper Tribunal solely on human rights grounds.

3.36 Home Office policy is that it will consider certification under s. 96 (see Chapter 5) and s. 94 (see above) of the 2002 Act first, before certification under s. 94B, because these are "stronger" powers of certification.

3.37 The Home Office clearly considers that in the vast majority of cases, Article 8 appeals will be certifiable under s. 94B because a non-suspensive appeal will be an "effective remedy" for an Article 8 breach, since a successful appellant will be allowed to return to the UK if their appeal is successful. The Certification Guidance gives the following examples of when the Home Office considers that it would – or would not – be appropriate to certify under s. 94B:

3.6 By way of example, in the following scenarios where a person is deported before their appeal is determined it is unlikely, in the absence of additional factors, that there would be a real risk of serious irreversible harm while an out-of-country appeal is pursued:

a person will be separated from their child/partner for several months while they appeal against a human rights decision;

a family court case is in progress and there is no evidence that the case could not be pursued from abroad;

a child/partner is undergoing treatment for a temporary or chronic medical condition that is under control and can be satisfactorily managed through medication or other treatment and does not require the person liable to deportation to act as a full time carer;

a person has a medical condition but removal would not breach Article 3;

a person has strong private life ties to a community that will be disrupted by deportation (e.g. they have a job, a mortgage, a prominent role in a community organisation etc.).

3.7 Although the serious irreversible harm test sets a high threshold, there may be cases where that test is met. Such cases are likely to be rare, but case owners must consider every case on its individual merits to assess the likely effect of a non-suspensive right of appeal. The following are examples of when the test might be met:

The person has a genuine and subsisting parental relationship with a child who is seriously ill, requires full-time care, and there is no one else who can provide that care;

The person has a genuine and subsisting long-term relationship with a partner who is seriously ill and requires full-time care because they are unable to care for themselves, and there is no one else, including medical professionals, who can provide that care.

3.38 This guidance is extremely narrow and there are likely to be other circumstances in which removal pending an appeal would be unlawful as being contrary to a person's Article 8 rights. Once it is established that removal interferes with Article 8 rights, the question is whether that interference is proportionate to the legitimate aims of deportation, taking account of the temporary nature of the interference if the appeal is successful and the person is allowed to return. You will need to consider:

• Whether the appellant's absence from the appeal hearing is likely to mean that the appeal cannot be fairly determined. Although Article 6 does not apply to deportation appeals, the Strasbourg court has interpreted Article 8 as include a right to effective participation in a decision making process which affects Article 8 rights. In R (Gudanaviciene & Others) v Lord Chancellor & DLAC [2014] EWCA Civ 1622, the Court of Appeal held that the procedural requirements of Article 8 in immigration cases were not materially different to that required by Article 6 in a case which involves civil rights and obligations. Article 8 requires that individuals be involved in the decision-making process, viewed as a whole, to a degree that is sufficient to provide them with the requisite protection of their interests (para 71). Lord Dyson MR said that "Deportation cases are of particular concern. It will often be the case that a decision to deport will engage an individual's article 8 rights. Where this occurs, the individual will usually be able to say that the issues at stake for him are of great importance", meaning that higher standards of fairness are required. You should therefore consider whether removal of your client from the UK before her appeal hearing will prevent her from participating effectively in the appeal hearing. Will your client be able to give evidence by video link and will evidence by video be sufficient in particular where credibility is in issue? Is there any dispute about the nature and extent of family or private life, or about the risk of reoffending, where her ability to give evidence and be cross-examined is likely to be important to the outcome of the appeal? Can family members attend the appeal?

• Whether there are parallel family proceedings which would be prejudiced by the removal of the appellant in the interim. The Home Office's Certification Guidance says that certification will be appropriate if there is no evidence that a family case cannot be pursued from abroad; it should follow that if there is evidence that the case cannot be (meaningfully) pursued from abroad, certification will be inappropriate.

• Whether the foreseeable length of the proceedings means that the appellant will be separated from a child or partner for a disproportionate length of time, particularly where that separation is likely to have an adverse impact on the welfare of a child. There are currently long delays in listing deportation appeals in some hearing centres and account needs to be taken of the possibility of onward appeals. This will require a fact sensitive assessment of the proportionality of a temporary separation in each case.

3.39 As with s. 94 certificates, the only way to challenge a s. 94B certificate is by way of judicial review and much of the guidance given above (paragraphs 3.17-3.30) will be equally relevant here. As these are 'non-suspensive appeals' cases, the policy in Chapter 60 to give five working days notice of removal applies, and (unless one of the exceptions in part 6 of Chapter 60 applies) the Home Office should normally suspend any removal directions once a judicial review has been issued, without the need to obtain an injunction.

3.40 Note that a similar power to certify in EEA deportation cases has been introduced by Regulation 24AA of the Immigration (European Economic Area) Regulations 2006. EEA appeals are outside the scope of this text and these provisions are not discussed further.