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

A judicial review claim concerning deportation should generally not proceed where the claimant has an effective statutory appeal addressing the same issue. The Asylum and Immigration Appeal Tribunal was able to determine whether the claimant was amenable to deportation, and that issue formed the legal basis for his immigration detention. The court therefore dismissed the claim while expressing concern about the duration of detention and urging the Tribunal to decide the appeal promptly.

The claimant, a Jamaican national who had lived in the United Kingdom since childhood, challenged a deportation order made after convictions for benefit fraud, sexual assault and racial threats. The Secretary of State relied on the power in section 32(3) of the UK Borders Act 2007, subject to the claimant not being immune from deportation under section 7 of the Immigration Act 1971.

The claimant relied on documents said to establish long residence in the United Kingdom. The Secretary of State disputed that evidence and argued that the claimant had an alternative remedy: an appeal already listed before the Asylum and Immigration Appeal Tribunal on whether he was liable to deportation.

1. The claim was dismissed. The claimant had invoked an appeal to the Asylum and Immigration Appeal Tribunal, listed to determine whether he was liable to deportation. That was the substantive issue before the Tribunal and provided an adequate alternative remedy to judicial review.
2. The court distinguished the question of release from the question of liability to deportation. Although release on bail might involve discretion, the Tribunal’s relevant task was to decide whether the claimant was amenable to deportation. That issue determined the legal basis for his detention under the Immigration Act 1971.
3. The claimant’s criminal record did not by itself justify detention. A person convicted of criminal offences may be imprisoned for the sentence lawfully imposed, but immigration detention was lawful only if the person was liable to deportation.
4. The court expressed concern about the duration of the claimant’s detention and urged the Tribunal to take no longer than necessary to determine the appeal, given that the claimant’s liberty was at stake.
5. There was an order for the defendant’s costs, not enforceable without leave of the court. The claimant was permitted detailed assessment of his publicly funded costs.

This was a first-instance judicial review. The judgment records that permission had previously been granted by Keith J, but gives no citation for that decision. The claimant’s appeal to the Asylum and Immigration Appeal Tribunal was listed for determination of his liability to deportation.