Jabbar & Ors, R (on the application of) v Secretary of State for the Home Department

Where an immigration decision carries a statutory appeal, judicial review will ordinarily be refused, even where the claimant identifies exceptional personal circumstances or disputes culpability. The court retains a discretion, but should consider whether the appeal process is the more suitable remedy, particularly for fact-sensitive issues and challenges to the exercise of discretion.

A procedural defect in an immigration decision does not necessarily justify relief where subsequent reconsideration has cured the defect and the decision-maker has properly addressed the relevant evidence and factors. A claim for damages under article 8 requires an arguable Convention right and properly particularised pleadings; article 8 does not confer a general right to work or to a particular work permit.

The claimants were restaurant workers arrested during immigration raids because they were working at restaurants different from those specified in their work permits. The Secretary of State served notices under section 10 of the Immigration and Asylum Act 1999 and decisions to remove them.

Permission to seek judicial review had been granted in some claims. Other claims concerned withdrawn notices, outstanding permission applications, or proposed amendments seeking damages for alleged breach of article 8. The central issues were whether judicial review was an appropriate remedy despite the statutory appeal route, whether the section 10 notices could be challenged separately, whether later reconsideration cured any initial defects, and whether the damages amendments disclosed an arguable claim.

1. The applications for judicial review were dismissed. Permission was refused in the remaining cases, and leave to amend to add damages claims was refused. There was no order as to costs.

2. The statutory removal decision was appealable under the Nationality, Immigration and Asylum Act 2002. Following R (Lim and Another) v Secretary of State for the Home Department [2007] EWCA Civ 773, the existence of that appeal route ordinarily made judicial review inappropriate. The appeal tribunal could address whether the discretion should have been exercised differently, whereas judicial review concerned public-law unlawfulness.

3. Although a section 10 notice and detention might in some cases be separately reviewable, the notices here were given together with the removal decisions. They were overtaken by and incorporated into those appealable decisions.

4. The court assumed, without deciding, that the original decisions might have involved insufficient evidence, inadequate investigation, and failure properly to consider rule 395C of the Immigration Rules. During the proceedings, however, the Secretary of State considered the admitted work-permit breaches and the relevant matters raised by the claimants, explained the balance of factors, and confirmed or withdrew notices as appropriate. Relief would therefore be refused even on the assumption that the original process was flawed.

5. The proposed damages amendments were both very late and insufficiently particularised. In any event, Liu v Russia 47 EHRR 751 did not establish a general right to work or to a particular work permit under article 8. Since the claimants had no lawful right to work in the restaurants concerned when the decisions were made, no arguable loss or article 8 breach was shown.