Chapter 15 Updates: July 2018
15.7.1 UK Borders Act 2007 ss 32–39 (see also update to 7.2.3)
QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department  EWCA Civ 1413 is one of a number of cases considering the impact of Kiarie and Byndloss. Looking at the case law since the Supreme Court judgment, the position seems to be:
- Out-of-country appeals are not necessarily unlawful (Kiarie and Byndloss)
- To determine whether they would be unlawful, one needs to look at the factors listed in the case of AJ, including the possibility of giving evidence, the effectiveness of securing legal representation and receiving advice from legal representatives, the possibility of producing an expert or other professional evidence, and the importance of hearing live evidence from the appellant (AJ (s 94B: Kiarie and Byndloss questions) Nigeria  UKUT 115 (IAC))
- Even if it is found that a certification was unlawful, the appellant will not necessarily be allowed to return to the UK after the facts (R (Nixon & Anor) v SSHD  EWCA Civ 3)
- The First-tier Tribunal is best placed to decide if an individual’s appeal should be heard in the UK, and it should do so by following the AJ guidance (R (Watson) v Secretary of State for the Home Department & Anor (Extant appeal: s94B challenge: forum)  UKUT 165 (IAC).