09 OCT 2014
Khan v Secretary of State for the Home Department  EWHC 2494 (Admin); (2014) PLLR 094
Queen’s Bench Division, Administrative Court, Green J
23 July 2014
(1) The claimant, a Pakistani national, challenged the defendant’s decisions to remove him from the UK pursuant to section 10 of the Immigration and Asylum Act 1999 and accord him only an out-of-country right of appeal; to detain him pending removal; and to deny him the right to obtain employment. The claim was pursued by means of judicial review, and the defendant’s central point was in relation to the High Court’s jurisdiction to entertain a judicial review where the claimant had an extant alternative remedy by means of a statutory appeal to the FTT and Upper Tribunal on an out-of-country basis.
(2) The claimant was issued a work permit on 23 July 2008, and was given 5 years leave to enter from 30 September 2008. Some of the conditions of his leave were that he had no recourse to public funds, and that work (and any changes) must be authorised. His employer advised him that he could also take up 20 hours additional part time work, and he took steps to obtain security work. Upon seeking security work at the 2012 Olympics, he was informed by the UKBA that he was not entitled to perform this sort of work. He stated that he believed the UKBA had already authorised him to do so, at which time he was told that he would be arrested for violating the terms of his leave to enter and taken to a custody centre. It was considered that he had not ceased his primary employment or used deception, but officials found his additional work outside his profession breached his conditions.
(3) The UKBA decided the matter would be classed as a breach of the claimant’s conditions and detained him. On 8 May 2012, the claimant was served notice that he was liable to be detained and removed under section 10 of the Immigration and Asylum Act 1999. His detention was justified on the grounds that his removal was imminent and he did not have enough close ties in the UK to make it likely he would stay in one place. He was entitled to a statutory right of appeal only after leaving.
(4) The claimant challenged this finding, and filed a successful mandamus compelling the defendant to release him.
(5) In the present judicial review, the claimant put forward a number of arguments:
(1) the decision to grant mandamus had, in substance, already decided all of the issues in favour of the claimant;
(2) to the extent that matters were still live, the fact that the claimant had an out of country right of statutory appeal to the Tribunal did not preclude the bringing of an application for judicial review;
(3) on a true construction of the conditions attached to the entry clearance document there were no conditions which had been breached by virtue of the claimant's conduct in obtaining employment as a security officer;
(4) if there was a breach of a condition, the defendant erred in law by failing to address herself to all the relevant circumstances and thereby to properly exercise the power to remove and/or detain;
(5) the detention was unlawful both in and of itself and by virtue of the failure timeously to release the claimant from detention following the grant of mandamus;
(6) the imposition of a restriction upon the claimant preventing him from taking work following the section 10 decision was illegal.
(6) HELD: The court held that the High Court does not have jurisdiction to determine the claim for judicial review on the basis that an alternative remedy exists by way of an out-of-country appeal to the First tier Tribunal, which is the proper avenue for challenging the SSHD’s decision.
(7) The court considered ground (1) above as a preliminary matter, finding that the grant of mandamus was an application for interim relief, and did not prevent full consideration of the issue.
(8) The court then considered whether the claimant had an alternate remedy precluding judicial review. The claimant argues that the High Court has jurisdiction to entertain a judicial review notwithstanding the existence of a parallel statutory appeals procedure. He submits that having to return to Pakistan would greatly disrupt his, his wife’s and his child’s lives and make the exercise of his right of appeal much more difficult. The defendant submits that despite the harsh circumstances, the statutory framework around both the claimant’s right of appeal and judicial review is clear.
(9) After an extensive review of relevant case law, the court made a number of points in summary.
(10) The High Court retains a residual discretion to hear judicial review cases even where a parallel statutory appeal to the First tier Tribunal exists, whether that appeal is an in-country, or, an out-of-country, appeal. This judicial review is a remedy of last resort, and if the statutory appeals procedure is suitable, the High Court will exercise its discretion to decline an application for judicial review in all but special or exceptional cases.
(11) As an exception to this there is a category of case, defined as relating to precedent facts, where the High Court will assume jurisdiction. These include certain facts upon which the application of the jurisdiction to exercise the power under section 10 decision depends, such as whether the person is the person who is sought for removal, or whether the person is a British citizen.
(12) The High Court must be slow to find cases to meet the precedent fact conditions, having regard for Parliamentary will in creating the statutory scheme. Reprehensible or abusive conduct might create the necessary conditions for use of this power; harsh decisions or the possibility that an appeal might raise issues of public importance are not. Allowing proof of breach of observance of leave conditions to qualify as precedent fact would undermine the statutory appeals scheme.
(13) The court found that disputes over whether the Secretary of State correctly deployed the enforcement procedure under section 10 (and thereby precluded an in-country appeal) instead of the less draconian curtailment procedure are not special or exceptional and are apt to be determined by the Tribunal, which has jurisdiction to determine whether the SSHD acted lawfully and fairly. Collateral issues (such as detention) that do not have their own basis of jurisdiction in the Tribunal would not create a reason to allow all or any of the related removal decisions to be brought into the High Court.
(14) The court considered whether any special or exceptional circumstances existed in the present case. The court first looked to whether the case involved an issue of precedent fact, and found that there was little dispute about the basic facts of the case. Combined with the finding that the defendant brought a prima facie strong case, the court did not find that it would be appropriate for the High Court to exercise jurisdiction on this ground.
(15) The court further found that the arguments of the case were not outside of issues routinely examined by the Tribunal; they were not special or exceptional.
(16) The court considered whether the personal circumstances of the claimant (erroneously believing that he was acting within the law) could constitute special or exceptional circumstances indicating High Court jurisdiction was appropriate. The court found that it was the claimant’s responsibility to ensure that he was adhering to the rules. As the claimant could potentially put an argument of legitimate expectations based on his error to the tribunal, this argument would not serve to make High Court jurisdiction appropriate.
(17) The court found that the hardship the claimant would face in pursuing an out-of-country appeal was prima facie irrelevant, as this was a clear policy decision that Parliament had taken. The hardship point would only be relevant where it was demonstrated that an out-of-country appeal implied a materially inferior right of access to the tribunal than an in-country right of appeal.
(18) The court did not find the claimant’s acting in good faith to be relevant to the issue of special or exception circumstances. It also did not find that the issues presented in this case were of such importance that they should be determined by the High Court.
(19) The court declined to consider the merits of the judicial review application, finding that despite the fact that the case had been heard, it would set a poor precedent for future claimants. The court also declined to act on the detention claim and employment restrictions.
- – Applications for interim relief
 – Summary of case law on alternate routes of appeal
- – Precedent facts and special circumstances
 – First tier tribunals
- – Responsibility to ensure compliance with immigration rules
 – Out-of-country appeals
 – Claimant’s good faith
 – Importance of issues
 – Judicial review jurisdiction
- – Consideration of judicial review
 - Consideration of judicial review
 – Conclusion