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

On a renewed application for permission to seek judicial review, the court may adjourn where a challenge to the validity of removal directions is apparently arguable and requires a response from the Secretary of State. The public authority should have an opportunity to contest the point or reconsider the removal decision and issue fresh directions after exercising its discretion. Grounds based on alleged inconsistency in exceptional leave and family life under Article 8 will fail where the relevant family members have no lawful entitlement to remain and the decision has been adequately addressed.

An Angolan national challenged arrangements for his removal after his asylum claim, appeal and earlier judicial review attempts had failed. He relied on the alleged invalidity of the removal instructions, the conditions in Angola, the grant of exceptional leave to a person accompanying him, and Article 8 concerning his children in the United Kingdom.

Permission had been refused by Mr Justice Jackson. On renewal, the Court of Appeal found no substance in the other grounds but considered that the challenge to the removal instructions, supported by Parshotam Singh v Secretary of State for the Home Department [1989] Imm AR 469, was apparently arguable.

1. Disposition. The renewed application was adjourned. The Secretary of State was to be represented when the matter returned, and the case was to be listed after at least 28 days. If permission were granted, the substantive judicial review was to be determined by the same court, constituted by two judges.
2. The principal arguable issue concerned whether the removal directions complied with paragraphs 8 and 10 of the Second Schedule to the Immigration Act 1971. The court did not finally determine that issue. On the material available, there appeared to be substance in it, and the Secretary of State should have the opportunity either to contest it or to reconsider the removal decision and issue directions afresh after exercising the relevant discretion.
3. The other grounds were rejected. Any challenge to earlier removal instructions should have been raised in the earlier judicial review proceedings. The grant of exceptional leave to the accompanying person did not require equivalent treatment because the Secretary of State had given reasons addressing the distinction.
4. The Article 8 argument based on the applicant’s children in the United Kingdom had no substance. The children were unlawfully present, had no right to remain, and could return with the applicant. The applicant also had a wife and three children in Angola.

• Court of Appeal (Civil Division): permission to apply for judicial review had previously been refused by Mr Justice Jackson on 7 April 2000. The renewed application was adjourned to permit the Secretary of State to address the arguable validity of the removal directions.