1. Healthcare

Section 94B certification guidance for
Non-European Economic Area
deportation cases
Version 3.0
29 January 2015
Contents
Section 1: Introduction
Section 2: Cases not suitable for section 94B certification
Section 3: When to certify a human rights claim under section 94B
Section 4: Successful appeals
Section 5: change record
page 3
page 5
page 6
page 9
page 10
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 2 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed
Section 1: Introduction
Purpose
1.1
This guidance explains how case owners consider certifying a human rights claim,
made by a non-EEA national in the context of deportation, under section 94B of the
Nationality, Immigration and Asylum Act 2002.
Legislation
1.2
Section 94B of the Nationality, Immigration and Asylum Act 2002 came into force on 28
July 2014. It reads:
Appeal from within the United Kingdom: certification of human
rights claims made by persons liable to deportation
(1) This section applies where a human rights claim has been made by a
person (“P”) who is liable to deportation under—
(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State
deeming deportation conducive to public good), or
(b) section 3(6) of that Act (court recommending deportation
following conviction).
(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.
Background
1.3
Section 17(3) of the Immigration Act 2014 amended the Nationality, Immigration and
Asylum Act 2002 to introduce a discretionary certification power in relation to human
rights claims made by those liable to deportation under sections 3(5)(a) and 3(6) of the
Immigration Act 1971.
1.4
Section 94B of the Nationality, Immigration and Asylum Act 2002 allows a human rights
claim to be certified where the appeal process has not yet begun or is not yet exhausted
where it is considered that the person liable to deportation would not, before the appeal
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 3 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed
process is exhausted, face a real risk of serious irreversible harm if removed to the
country of return.
1.5
The result of certification under section 94B is that the right of appeal against the
decision to refuse the human rights claim will be non-suspensive, meaning it will not be
a barrier to removal. Any appeal can only be heard out-of-country. The EEA
Regulations have also been changed to allow non-suspensive appeals in certain EEA
cases. Separate guidance is available for EEA cases here.
Initial Cohort
1.6
Section 94B came into force on 28 July 2014. It was initially rolled out to a limited cohort
of cases where:


1.7
the individual was aged 18 or over at the time of the deportation decision; and
the individual did not have a genuine and subsisting parental relationship with a
dependent child or children.
That first phase came to an end on 17 October 2014.
Section 55 duty
1.8
The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have
regard to the need to safeguard and promote the welfare of children who are in the UK
means that a child’s best interests are a primary consideration in deportation cases.
1.9
Case owners must carefully consider all of the information and evidence provided
concerning the best interests of a child in the UK, in relation to the application of the
section 94B of the Nationality, Immigration and Asylum Act 2002. Case owners must
carefully assess the quality of any evidence provided. Original, documentary evidence
from official or independent sources will be given more weight in the decision-making
process than unsubstantiated assertions about a child’s best interests.
1.10
For further guidance in relation to the section 55 duty, see:



Section 55 children's duty guidance;
Introduction to children and family cases; and
Criminality guidance for Article 8 ECHR cases.
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 4 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed
Section 2: Cases not suitable for section
94B certification
2.1
Human rights claims which are considered under paragraph 353 of the Immigration
Rules and not accepted as a fresh claim cannot be certified under section 94B because
the decision will not generate a right of appeal.
2.2
Human rights claims which can be certified under section 96 of the Nationality,
Immigration and Asylum Act 2002 cannot be certified under section 94B because the
decision will not generate a right of appeal.
2.3
Human rights claims which can be certified under section 94 of the Nationality,
Immigration and Asylum Act 2002 should not normally be certified under section 94B
because section 94 is a stronger power which will usually take precedence, and in any
case will have the same effect as section 94B certification.
2.4
Protection claims made wholly or in part under Articles 2 and/or 3 of the European
Convention on Human Rights cannot be certified under section 94B. This is because
they must be certified under section 94 if they are clearly unfounded, and if they are not
clearly unfounded, then it will be arguable that there is a real risk of serious irreversible
harm.
2.5
Human rights claims from foreign criminals who are serving a determinate-length
sentence where release is at the discretion of the Parole Board will not normally be
suitable for section 94B certification. This includes those who were:



sentenced in accordance with the Discretionary Conditional Release Scheme
(DCR) under the Criminal Justice Act 1991;
given an Extended Sentence for Public Protection (EPP); and
given an Extended Determinate Sentence (EDS).
2.6
Human rights claims from foreign criminals who are to be deported while they are
minors will not normally be suitable for section 94B certification.
2.7
Cases to which the scenarios at 2.5 and 2.6 apply will not usually be suitable for section
94B certification for practical operational reasons, not because there will necessarily be
a real risk of serious irreversible harm. Consideration must be given to all cases on an
individual basis about whether or not it is appropriate to certify.
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 5 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed
Section 3: When to certify a human rights
claim under section 94B
3.1
Section 94B certification must be considered in all deportation cases where a human
rights claim has been made and falls for refusal unless it is a case to which section 2 of
this guidance applies. The “test” phase where section 94B was rolled out to a limited
cohort of cases ended on 17 October 2014 and no longer applies.
3.2
The Government’s policy is that the deportation process should be as efficient and
effective as possible. Case owners should therefore seek to apply section 94B
certification in all applicable cases where doing so would not result in serious
irreversible harm.
Real risk of serious irreversible harm
3.3
When deciding whether it is appropriate to certify a human rights claim under section
94B, case owners must consider whether an out-of-country appeal would result in a real
risk of serious irreversible harm before the appeal process is exhausted. The serious
irreversible harm test is derived from the European Court of Human Rights (ECtHR),
which uses it to determine whether they should issue Rule 39 injunctions preventing
removal.
3.4
The term “real risk” is a relatively low threshold and has the same meaning as when
used to ascertain whether removal would breach ECHR Article 3. However, the terms
“serious” and “irreversible” must be given their ordinary meanings. “Serious” indicates
that the harm must meet a minimum level of severity, and “irreversible” means that the
harm would have a permanent or very long-lasting effect. If the human rights claim is
based on Article 8, case owners must consider not only the impact on the foreign
criminal’s rights, but also those of any partner or child. The test relates only to the
period of time between deportation and the conclusion of any appeal, and will not be
met solely because the person will be separated from family members in the UK during
that period.
3.5
It will not normally be enough for a person to provide evidence that there is a real risk of
harm which would be either serious or irreversible. In order for certification not to be
possible, there must be a real risk of harm that would be both serious and irreversible.
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;
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 6 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed


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:


3.8
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.).
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.
The onus is on the Secretary of State to demonstrate that there is not a real risk of
serious irreversible harm. However, if a person claims that a non-suspensive appeal
would risk serious irreversible harm, the onus is on that person to substantiate the claim
with documentary evidence, preferably from official sources, for example a signed letter
on letter-headed paper from the GP responsible for treatment, a family court order, a
marriage or civil partnership certificate, documentary evidence from official sources
demonstrating long-term co-habitation, etc. Case owners should expect to see original
documents rather than copies.
Dual certification
3.9
If a protection claim is certified under sections 94 or 96, but it is not possible to certify a
linked Article 8 claim (or other non-protection human rights claim) under either of those
powers, then consideration must be given to certifying the Article 8 claim under section
94B as long as there is not a real risk of serious irreversible harm.
Timing of certification
3.10
Case owners need to bear in mind that it is possible to certify under section 94B at any
stage in the process as long as the person has not exhausted their appeal rights. In
practice, this means that if a claim is not certified at the initial decision stage, and either
party challenges the decision of the First-tier Tribunal (or that of the Upper Tribunal), the
case owner must consider whether it is appropriate to certify the claim before it is heard
by the Upper Tribunal (or the Court of Appeal).
3.11
For example, if a person has an in-country appeal against the refusal of a nonprotection claim solely because they were entitled to an in-country appeal against the
refusal of a protection claim, and the appeal progresses to the Upper Tribunal
(regardless of whether it was allowed or dismissed at the First-tier Tribunal), it may be
the case that the protection claim is no longer relied upon, and the only part of the claim
that remains is an Article 8 claim. If so, and there is not a real risk of serious irreversible
harm, and, it is likely that certification will be appropriate particularly, as a matter of
policy, if the person is otherwise removable (e.g. a travel document is now available).
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 7 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed
3.12
If it is decided to certify at any stage after the person has lodged an appeal, the case
owner must notify the relevant Court or Tribunal in writing.
3.13
All certification decisions, including decisions not to certify, need to be subject to a peer
review process. Reasons for the certification decision, including not certifying, must be
clearly set out in CID notes and the case file. This is because a decision to certify can
be challenged by judicial review and the Home Office may be required to provide
records of the decision-making process.
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 8 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed
Section 4: Successful appeals
4.1
Where a foreign criminal’s out-of-country appeal against the refusal of a non-protection
human rights claim succeeds, the foreign criminal is entitled to return to the UK and the
deportation order must be revoked.
4.2
Consideration must be given to whether the Home Office should pay for the foreign
criminal’s journey back to the UK if this is requested by the foreign criminal.
4.3
In considering whether to pay for the foreign criminal’s journey back to the UK, regard
should be had to the following factors:

the quality of the Home Office’s decision to refuse the human rights claim;

whether the appeal was allowed on the basis of evidence or information that the
foreign criminal failed to submit to the Home Office in advance of his deportation
despite a section 120 warning, and if so, whether there is any reasonable
explanation for this;
whether there is evidence that if the Home Office does not pay for the return journey
the foreign criminal be unable to return to the UK even though the human rights
decision requires him to be able to return.

4.4
Where a person was accepted onto the Facilitated Return Scheme (FRS) and received
financial assistance to leave the UK, but then appeals the refusal of a human rights
claim abroad and wishes to return to the UK, the Home Office should not usually pay for
their journey back to the UK.
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 9 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed
Section 5: change record
Version
Author(s) Date
Change References
1.0
LS (CPT)
28/07/2012
First draft.
2.0
LC (CPT)
20/10/2014
Added section 1: introduction; added a link to the EEA
guidance; added section 2: when not to certify;
combined “real risk of serious irreversible harm” into
section 3: when to certify and added “dual certification”;
added section 4: successful appeals; added section 5:
change record.
3.0
LS(CPT)
20/1/2015
Removed a drafting error in paragraph 1.3
IDIs: Chapter 13 – Criminality Guidance in Article 8 ECHR Cases
V3.0 (29 January2015)
Page 10 of 10
Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed