Secretary of State for the Home Department v Lim & Anor (R, on the application of)

Questions arising under removal powers may be both appealable and reviewable. The High Court should calibrate its discretion to entertain judicial review according to the nature of the issue and the adequacy of the statutory appeal.

Where an effective statutory appeal exists, judicial review will ordinarily be refused unless special or exceptional factors justify intervention. Citizenship and identity are precedent facts normally suitable for immediate determination by the High Court. A routine factual dispute about breach of an immigration condition will rarely displace Parliament’s prescribed out-of-country appeal procedure.

Immigration officers concluded that a Malaysian work-permit holder had worked at a restaurant not specified in his permit. They directed his removal under section 10(1) of the Immigration and Asylum Act 1999 and also directed the removal of his wife as his dependant.

On preliminary issues in judicial review proceedings, the Administrative Court held that breach of the work condition was a precedent fact for the court to determine. It also held that the out-of-country appeal was exceptionally inadequate and permitted judicial review to proceed: [2006] EWHC 3004 (Admin).

The Secretary of State appealed. The central issue was whether the High Court should entertain judicial review of the factual basis for removal where an effective out-of-country appeal lay to the Asylum and Immigration Tribunal.

1. Appeal allowed. Sedley LJ, with whom Wilson LJ and the President agreed, held that the High Court should have declined to entertain the claim because the respondents had an effective remedy by way of an out-of-country appeal.

2. Every question arising under section 10 of the Immigration and Asylum Act 1999 was in principle both appealable and reviewable. Judicial review jurisdiction was not excluded merely because the dispute concerned a pure question of fact. The court should instead calibrate its discretionary use of judicial review according to the nature of the issue, while respecting the statutory appeal policy established by section 82 of the Nationality, Immigration and Asylum Act 2002.

3. The decision in Khawaja v Home Secretary [1984] 1 AC 74 required the High Court to retain jurisdiction to determine preconditions of liability to removal. A disputed claim to British citizenship or identity ranked as a precedent fact. Where a timely application was made concerning such an issue, it would ordinarily be wrong to refuse judicial review in favour of removal followed by an appeal from abroad.

4. Where an effective statutory appeal exists, however, the High Court normally refuses judicial review unless special or exceptional factors justify departure from that course. Pure factual disputes will rarely escape that adverse exercise of discretion. Otherwise, the courts would deprive Parliament’s prescribed appeal procedure of practical content.

5. The alleged work at an unauthorised restaurant was precisely the kind of factual issue assigned to an out-of-country appeal. The possible absence of videolink evidence, together with the hardship and inconvenience of removal, did not provide a sufficient basis for treating the case as exceptional. The lower court’s reasoned exercise of discretion therefore could not stand.

6. Obiter, the removal power did not oblige the Secretary of State to remove every non-British citizen who committed an inconsequential breach of a condition. Sedley LJ considered removal of both respondents in these circumstances difficult to justify and stated that he would not expect the successful appeal to lead to renewed removal action.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed unanimously. The High Court should have declined to entertain the judicial review claim because an effective out-of-country appeal was available: [2007] EWCA Civ 773.
2. Administrative Court: Lloyd Jones J held that the removal directions depended on a precedent fact determinable in judicial review proceedings and that the out-of-country appeal was exceptionally inadequate. Judicial review was permitted to proceed, but the proceedings were stayed pending appeal: [2006] EWHC 3004 (Admin).