‘Explain the doctrine of proportionality and discuss the application of the proportionality test by the Supreme Court in Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42.’

 


Rights protected by Human Rights Convention and the Human rights Act 1998 (HRA) are known as Absolute rights. The Right to Freedom from degrading and torture treatment is one of these. These can never be restricted by the state. If there is any interference in an individual’s rights that interference must be according to the law. This is where proportionality comes into play it is role. The doctrine of proportionality is in place to ensure that public authorities can only interfere no more than is necessary to achieve one of the aims of the Human Rights Act 1998. Proportionality implies that the court will weigh for advantages and disadvantages of an administrative action and such action will be upheld as valid if and only the balance is advantageous and if the action is misappropriating the decision will be quashed.

Principal of proportionality requires that there be a legitimate reason when a human right is being restricted or qualified. An example of this can be seen in the case of Hirst V UK (2006). This is a European Court of Human Rights case where former inmate John Hirts sued the UK stating that not giving prisoners the right to vote was breaching his human rights. The judgment went up to the ECtHR in Strasbourg and they held it was in breach of human rights under Protocol 1, Article 3 which states the right to participate in a free election. It is an arguable case as many people believe guilty convicted prisoners should not be given the right to vote as this is a privilege, however, some believe a guilty prisoner should be allowed to vote as the prison sentence is punishment enough. This case ruled unanimously that there had been a violation of Hirt’s human rights under Article 3 of the First Protocol. The proportionality test is a legal method that is used by the court to decide on a hard case. Cases where two or more legitimate rights collide. To establish whether an action is ‘necessary’ there is a proportionality test. This test consists of four parts:

  1. Is there a pressing social need for some restrictions of the Convention?
  2. Is the particular restriction rationally connected to this need?
  3. Is it a proportionate response to that need? (Could a less intrusive measure could have been used without unacceptably compromising the achievement of the objective?)
  4. Are the justifying reasons presented by the national authorities relevant and sufficient, considering the severity of the measure’s effects on the rights of the persons to whom it applies; and the extent to which it will achieve its objective?

 

  Professor Jowell describes the proportionality test to involve a sophisticated four stages posing the following questions:

1.    Did the action pursue a legitimate aim?

2.    Were the means applied to achieve that aim?

3.    Could the aim have been achieved by a less restrictive alternative?

4.    Is the derogation justified overall the in the interest of democratic society?

According to Professor Jowell, such a fourfold test can ensure that a prima facie violation of a fundamental democratic is not lightly sanctioned while providing for heightened scrutiny of a decision called in question.[1] People who have been subject to deportation with cases involving human rights arguments have the right to appeal in the country. A landmark case was decided on 14th June 2017 by the Supreme Court, that of Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42. The result of this case has changed the current immigration appeals process. 

In the case of Kiarie and Byndloss v Secretary of State for the Home Department, both appellants had indefinite leave to remain in the UK, Mr. Kiarie was 23 years old had Kenyan national who had lived with his parents and siblings in the UK since he was 3 and Mr. Byndloss was a 33 years old Jamaican national living in the UK for 12 years both appellants were convicted and imprisoned for possession of Class A drugs with intent to supply.  In 2014, the appellants were informed that the Home Secretary intended to deport them in response to this they submitted representations that the deportation would go against their Article 8 right to private and family life.

On the other hand, in 2014  the Home Secretary ordered the deportation of Mr. Kiarie and Byndloss. In addition to that, Home Secretary also ordered that Mr. Kiarie and Byndloss can seek that it would be accepted that they could make appeals (because of the time spent in the UK and family ties ) against the decision but that appeal must be made in Kenya and Jamaica.  Both the appellants sought to appeal the deportation decision based on their Article 8 rights. 

The Supreme court overwhelmingly decided that the certification of claims inherently violated the Article 8 rights of those chosen for deportation. Namely on the basis that making appeals from overseas was inherently problematic and affected the applicant’s ability to successfully present their appeal.

In conclusion, the principle of proportionality requires that there be a legitimate reason when a human right is being restricted or qualified and wherein two or more cases of legitimate rights collide so the proportionality test is the legal method which is used by the court. If Human Rights claims are still refused and applicants are entitled to appeal a such decision from within the United Kingdom instead of being deported and told that they should appeal from overseas. [2]

 


[1] All Answers ltd, 'Proportionality as a Ground of Judicial Review' (Lawteacher.net, March 2022) <https://www.lawteacher.net/free-law-essays/constitutional-law/proportionality-as-a-ground-of-judicial-review-constitutional-law-essay.php?vref=1> accessed 15 March 2022.

[2] 21 [2017],’ Kiarie & Byndloss v Secretary of State for the Home Department [2017] - Arona St James Solicitors’ ( Arona St James Solicitors )

< https://aronastjames.co.uk/immigration-law-news/kiarie-byndloss-v-secretary-of-state-for-the-home-department-2017/> 15 March 2022.