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

Judicial review is a remedy of last resort. Where an applicant has an adequate, and potentially more effective, statutory right of appeal, the court should ordinarily decline to entertain judicial review. An appeal may be more effective where the appellate tribunal can hear oral evidence, test it in cross-examination and consider the evidence more extensively than the reviewing court.

On the merits, review of an immigration decision engaging Article 8 remains supervisory. The court applies anxious scrutiny and requires substantial justification for interference, but does not substitute its own assessment for that of the decision-maker. Intervention is justified only where the decision falls outside the range of responses open to a reasonable decision-maker.

The claimants challenged the Secretary of State’s handling of an outstanding application for leave to remain following an earlier decision of the Upper Tribunal which had set aside an earlier refusal and permitted the application to be varied by reference to a new sponsor.

While the judicial review was pending, the Secretary of State refused the first claimant’s Tier 4 application and refused the family’s claim based on private and family life. The decision granted an in-country right of appeal. The central issues were whether that appeal was an adequate alternative remedy and, alternatively, whether the decision was unlawful or disproportionate having regard to Article 8 and the welfare of the children.

1. Alternative remedy. The claim was dismissed because the in-country right of appeal was an adequate and, in several respects, more appropriate remedy. Judicial review is a remedy of last resort. The existence of that remedy made the judicial review claim effectively academic. The tribunal could receive oral evidence, test it by cross-examination and consider the evidence more extensively than the Administrative Court. The claimants’ expenditure on the judicial review did not make the alternative remedy inadequate.
2. Supervisory review. The court nevertheless considered the substantive challenge. In a human-rights case the court’s role remained supervisory. It applied the principles identified in R (Mahmood) v Secretary of State [2001] 1 WLR 840: anxious scrutiny was required, substantial justification was needed for an interference with human rights, and the court should intervene only where the decision fell outside the range of responses open to a reasonable decision-maker.
3. Article 8 and children. The Secretary of State had directed herself to the relevant law, including the Immigration Rules, Article 8 and section 55 of the Borders, Citizenship and Immigration Act 2009. She had considered the evidence and submissions. The decision was within the reasonable range and was not unlawful. The children had come to the United Kingdom in connection with their father’s proposed study, and there was no legitimate expectation that the family would obtain a longer period of leave after the study plans were abandoned. No sufficient reason had been shown why the children could not readapt to life in the Philippines.
4. Order. The claim was dismissed on both grounds. The first claimant was ordered to pay the defendant’s costs from 11 July 2012 to the date of judgment, subject to detailed assessment if not agreed.

The judgment records the following prior procedural history:

• First-tier Tribunal: dismissed the first claimant’s appeal against refusal of leave to remain.
• Upper Tribunal (Immigration and Asylum Chamber): on 27 July 2011, allowed the appeal, found an error of law, set aside the refusal and directed that the outstanding application be determined in accordance with law.
• High Court (Administrative Court): dismissed the subsequent judicial review claim.