Kaikai, R (on the application of) v Immigration Services Commissioner

Judicial review will ordinarily be refused where an adequate alternative statutory appeal is available to address the complaint. A court should not intervene in an interim suspension decision made within a tribunal judge’s discretion where the affected person’s written representations were available, the material was sufficient to decide the interim issue, and the substantive appeal remained available to determine the merits.

The claimant, who provided immigration services, applied for continued registration under Immigration and Asylum Act 1999. The Immigration Services Commissioner refused the application, citing regulatory and financial concerns.

The claimant appealed to the Immigration Services Tribunal and sought suspension of the refusal under Rule 10. Judge Cripps refused suspension without an oral hearing, having considered the claimant’s detailed written representations. The claimant then sought judicial review of that refusal rather than pursuing the statutory appeal. Permission was refused on paper by Silber J and, on renewal, by Elias J because an alternative remedy existed. The claimant renewed his application before the Court of Appeal, alleging a denial of natural justice.

1. Application refused. Carnwath LJ held that the claimant had an alternative remedy through his appeal to the Immigration Services Tribunal. It was well established that the court would not exercise judicial review jurisdiction where that remedy was available. That conclusion disposed of the renewed application.

2. In any event, the interim decision disclosed no error of law. The tribunal judge had the claimant’s detailed letter of 9 September 2002, which addressed the Commissioner’s complaints and requested suspension. He was entitled to regard that material as sufficient and to determine the suspension issue without inviting further representations or holding a hearing.

3. The refusal to suspend was an exercise of discretion. The admitted matters concerning indemnity insurance, client accounts, annual accounts and dishonoured cheques entitled the judge to conclude that the practice was not being run properly and that clients lacked the required protection. The decision did not prejudge matters that could have been raised in the substantive appeal.

4. The claimant’s natural-justice complaint therefore provided no basis for intervention. The court noted that the substantive appeal, which the claimant had apparently withdrawn, could have resolved the merits much earlier.

• Court of Appeal (Civil Division): Carnwath LJ refused the renewed application: [2003] EWCA Civ 860.
• High Court: Silber J refused permission on the papers. Elias J refused renewed permission on 23 January 2003 because the claimant had an alternative appeal to the Immigration Services Tribunal. No citation was stated.
• Immigration Services Tribunal: Judge Cripps refused the claimant’s application to suspend the Commissioner’s decision pending the statutory appeal, on 20 September 2002.