A controversial immigration policy that led to the deportation of 1,175 individuals has been ruled unlawful by the Supreme Court. As part of the Immigration Act 2014, the then Home Secretary Theresa May introduced the “deport first, appeal later” policy in order to clamp down on the number of criminals using the right to family life argument as a means to appeal their deportation.

The policy was supposed to only be used for removing convicted criminals, but it has been noted that these powers were extended to anyone who had overstayed their visa requirements, regardless of their ties to the UK. The court heard from two individuals who had both previously been granted indefinite leave to remain in the UK. Kevin Kiare from Kenya had moved to the UK with his family at the age of three. The second man, Courtney Byndloss had moved to the UK from Jamaica in 2002 and had a wife and children in the UK. Both men had been convicted of drug offences and had served prison sentences.

The Supreme Court determined that the ruling breached their human rights, as an appeal from outside the country would significantly weaken their cases. The financial and legal barriers of giving evidence on their family lives from overseas was determined to be insurmountable. It has been determined that deporting an individual without allowing them to appeal on human rights grounds is unlawful, which is a blow for the Home Office.

This ruling will have a significant impact on the way the Home Office handles deportations of foreign criminals in future. Of the 1,175 individuals who were removed from the country under these powers, only 72 lodged an appeal from outside the country. Of those 72 cases, not a single one was successful.

This was given as evidence that appealing from outside the country would be too difficult and therefore breaches their human right to family life. The cost and practicalities of giving evidence via a video link were deemed to make the appeals process unfair. Other considerations include the logistical problems of coordinating with a solicitor in the UK or seeking additional support from social workers or psychiatrists.

The change in policy is unlikely to have an impact on those who have already been deported and failed to lodge an appeal, but it could have significant impact for the Brexit negotiations. As these rules can be used against EU citizens, it could have a significant impact on how British Citizenship applications and EEA PR applications are handled by the Home Office.