Khunsanong & Anor, R (on the application of) v Immigration Officer Stanstead Airport

Judicial review is ordinarily unavailable where an effective statutory appeal exists. The fact that an appeal must be exercised from abroad does not, by itself, create exceptional circumstances.

An immigration decision is not necessarily invalid merely because its initial reasons appear to apply the wrong test. The decision-maker may clarify and further explain the reasons, provided the original decision is not simply amended in substance. Exceptional circumstances may arise from a manifest or fundamental error causing substantial injustice, but an arguable error alone is insufficient.

Two Thai sisters sought permission to appeal against the dismissal by Mr David Pannick QC, sitting as a deputy High Court judge, of their applications for judicial review. Their applications challenged refusals of leave to enter as students.

The immigration officer initially stated that he was not satisfied that one applicant intended to leave the United Kingdom on completion of her proposed English studies. He later supplied revised and fuller reasons referring to completion of any course of study. The applicants argued that the original decisions were legally flawed and that the officer lacked power to correct them. They also relied on the need to appeal from abroad, a change in the immigration rules, and the hardship of interrupting their studies.

The central issues were whether the later correspondence merely clarified the original reasons and whether exceptional circumstances justified judicial review despite a statutory right of appeal.

1. Application dismissed. Lord Justice Dyson delivered the principal judgment, with Lord Justice Robert Walker agreeing. The court dismissed the application for permission to appeal and ordered a public funding assessment.
2. The immigration officer had not cancelled and replaced the decision of 8 March. The later letters were properly understood as clarifying and further explaining the reasons already advanced. The officer could have cancelled the decision under paragraph 6(3) of Schedule 2 to the Immigration Act 1971, but had not done so.
3. The court accepted that, if the officer had considered only whether the applicant intended to leave at the end of her current English course, that would have involved an error of law, consistently with R v Chief Immigration Officer, ex parte Kharrazi [1980] 1 WLR 1296. That issue did not require determination because the later reasons could properly be treated as an explanation of the original decision.
4. Even on the alternative assumption that the original decision was arguably flawed, judicial review was inappropriate. The applicants had a statutory right of appeal capable of addressing both legal error and the merits. The need to exercise that appeal from abroad was not, without more, an exceptional circumstance.
5. An obvious legal error may amount to an exceptional circumstance where it is manifest or fundamental and the applicant has been denied substantial justice. The error alleged here was, at its highest, arguable and did not meet that threshold. The subsequent change to paragraph 20 of HC 395, effected by HC 704, did not directly apply and did not establish exceptional circumstances. The hardship of returning to Thailand and interrupting study was likewise insufficient.

• Court of Appeal (Civil Division): The court dismissed the application for permission to appeal against the decision of Mr David Pannick QC, sitting as a deputy judge of the Administrative Court, which had dismissed the applications for judicial review.