Niquepa-Sarmiento, R (on the application of) v Secretary of State for the Home Department

A removal decision may be unlawful where the decision-maker materially misunderstands the factual basis of an out-of-time appeal application and fails to consider the short period likely to be required for its determination. Such an error makes the decision Wednesbury unreasonable, although it does not establish that removal could never lawfully proceed. Relief in judicial review remains discretionary. The court may refuse relief where the claimant had ample opportunity to seek interim protection, failed to do so, and can pursue an effective appeal from abroad.

The claimant, a Colombian national convicted of serious sexual offences and subject to a deportation decision, sought judicial review after being removed to Colombia on 8 December 2010. He had lodged an out-of-time appeal to the First-tier Tribunal, supported by grounds and evidence seeking an extension of time. The Secretary of State proceeded with removal on the mistaken understanding that no such application had been made.

The extension application was subsequently granted and the immigration appeal continued. The claimant challenged the removal decision on reformulated Wednesbury grounds and sought a declaration and mandatory relief. The central issues were whether the removal decision was unlawful and, if so, whether relief should be granted.

1. The application for judicial review was refused. The Secretary of State’s decision was legally flawed, but the court declined to grant declaratory or mandatory relief.

2. The original argument that sections 78, 92 and 104 of the Nationality, Immigration and Asylum Act 2002 prevented removal while an out-of-time appeal application was pending was not pursued, because it was inconsistent with R (Erdogun) v Secretary of State [2004] EWCA Civ 1087 and R (Kagabo) v Secretary of State [2009] EWHC 153 (Admin).

3. The Border Agency failed to take into account the relevant fact that the claimant had made an application for permission to appeal out of time, supported by grounds and evidence. It also failed to consider that the application was likely to be determined within days, or whether expedition could be sought from the tribunal. Those failures materially affected the decision to proceed with removal.

4. The decision was therefore plainly flawed and Wednesbury unreasonable. It was not, however, perverse in the sense that no reasonable decision-maker could have made it. Proper consideration of the relevant factors might still have led lawfully to removal, particularly given the seriousness of the offending.

5. Relief was discretionary. The claimant and his experienced solicitors had ample opportunity to seek judicial review and interim relief before removal, but did not do so. The appeal could be conducted fairly from Colombia, including through written evidence, oral evidence and, if feasible, a video link. There was no legal principle requiring the Secretary of State to allow events to develop so as to confer an in-country right of appeal that did not exist at the time of removal.

6. No order was made as to costs. A public funding certificate was granted. Permission to appeal was refused.

This was a first-instance judicial review. The judgment records that the matter proceeded as a rolled-up hearing following an order by HHJ Jarman QC on 24 June 2011.