Mohammed, R (on the application of) v Secretary of State for the Home Department

Judicial review cannot be used to bypass a statutory procedure for challenging deportation decisions. Where the claimant’s grounds disclose no realistically arguable basis for relief, and the proceedings improperly seek to reopen matters that should have been pursued through the statutory appeal route, the claim may constitute an abuse of process. Exceptionally, the court may dismiss the claim despite the claimant’s absence where the proceedings are protracted, abusive and incapable of producing any legitimate argument. Article 6 of the European Convention on Human Rights does not apply to public-law immigration decisions.

The claimant renewed an application for permission to challenge the Secretary of State’s commencement of deportation proceedings and apparently also challenged removal directions. Permission had previously been refused by Sullivan J, who held that the claim improperly sought to circumvent the statutory procedure and was an abuse of process. The claimant was detained and was not produced at the hearing. The central issues were whether the claim should be heard in his absence and whether it should be dismissed as an abuse of process.

1. Disposition. The renewed application was dismissed. The court held that the proceedings were a complete abuse of process.
2. Judicial review could not be used to side-step the statutory procedure for challenging a notice of intention to deport. The claimant had already failed to pursue the available appeal route, and the proceedings sought to challenge decisions through an inappropriate route after the relevant appeal proceedings had been disposed of.
3. The suggested unfairness based on failure to serve a document did not disclose an arguable breach of Article 6 of the European Convention on Human Rights. Article 6 does not apply to public-law immigration decisions.
4. The court recognised that it would ordinarily be extremely reluctant to dispose of judicial review proceedings without giving the claimant a fair opportunity to make representations. Exceptionally, however, the claimant’s absence did not prevent dismissal because the proceedings were highly protracted, permission had been refused months earlier, the claim had been renewed only after removal directions were served, and nothing could conceivably be said to support it.
5. The existing order for the defendant’s costs of filing the summary grounds of defence remained. A further application for the day’s costs was refused, particularly because the claimant was not present to respond.

• High Court (Administrative Court): Sullivan J refused permission on 7 January 2008, holding that the claim was an abuse of process because it sought to bypass the statutory deportation appeal procedure.
• High Court (Administrative Court): on renewal, Blake J dismissed the application as a complete abuse of process.