Otaru, R (on the application of) v Secretary Of State For Home Department

Judicial review is a discretionary remedy and will not normally be granted where the relief sought would be academic. An appeal concerning removal and the alleged deception underlying an earlier grant of indefinite leave to remain became academic when the applicant was subsequently granted indefinite leave to remain on another basis. The court therefore dismissed the appeal without determining whether the original marriage was deceptive. Dismissal on that procedural basis did not express any view on the underlying allegation.

The applicant appealed from Owen J’s refusal on 24 May 2000 of permission to seek judicial review of the Secretary of State’s decision to remove him to Nigeria. The challenge concerned the conclusion that his first marriage, which had supported an earlier grant of indefinite leave to remain, was a sham or deception.

Permission to appeal was granted because of possible European Convention on Human Rights issues. Before the appeal was heard, however, the applicant obtained indefinite leave to remain as a dependant of his second wife. The central issue was whether any effective relief remained to be granted.

1. Appeal dismissed. The court, in a judgment delivered by Lord Justice Judge and agreed by Lord Justice Mance and the Vice-Chancellor, held that the appeal had become academic.
2. The applicant had already obtained indefinite leave to remain as a dependant of his second wife. Even if the Convention issue were resolved in his favour, and even if the Secretary of State’s conclusion about the first marriage were quashed on an available judicial review ground, he could obtain nothing further from the proceedings.
3. Judicial review is a discretionary remedy. It is not normally granted where the result would be academic. The possible importance of the issue identified when permission to appeal was granted could not justify deciding it in this case once no practical relief remained.
4. The dismissal did not indicate whether the first marriage involved deception. The court stated that its judgment should not be deployed by either party as supporting a submission on that underlying issue.
5. The formal order was that the appeal be dismissed, with legal aid taxation of the appellant’s costs.

1. Court of Appeal (Civil Division) — [2001] EWCA Civ 126: appeal dismissed because the applicant had already obtained the practical relief sought and the judicial review issue was therefore academic.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — Owen J, 24 May 2000: refused permission to seek judicial review of the Secretary of State’s removal decision.