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

An out-of-country statutory appeal will ordinarily make judicial review inappropriate. The court should entertain judicial review only where the alternative remedy does not provide fair, adequate or proportionate protection. Administrative failures surrounding removal may render the removal unlawful, but do not necessarily make the underlying judicial review exceptional. A decision under section 10 of the Immigration and Asylum Act 1999 requires a genuine exercise of discretion.

The claimant, a Pakistani national holding a Tier 4 student visa, was removed to Pakistan after immigration officers concluded that he had worked in breach of a condition prohibiting employment. He challenged the removal decision, the failure to consider his bare Article 8 claim before removal, the lack of notice of removal, detention, and the factual and discretionary bases for removal.

The Administrative Court considered whether an out-of-country appeal made judicial review inappropriate and, if not, whether the removal decision and its implementation were unlawful.

1. The court declined to entertain the challenge to the underlying removal decision because the claimant had an out-of-country right of appeal. Applying Secretary of State for the Home Department v R(Lim) [2007] EWCA Civ 733, the alternative remedy provided fair, adequate and proportionate protection, and the circumstances were not exceptional.
2. In the alternative, the evidence justified the finding that the claimant had worked in breach of his visa. The contemporaneous material showed that the decision-maker had considered all available facts and potential prejudice. There had been a proper exercise of the removal discretion.
3. Detention was lawful under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. The requirements identified in R (I) v Home Secretary [2002] EWCA Civ 888 were met.
4. The failure to notify the claimant of removal, the representation that removal would not occur, and the failure to consider the bare Article 8 claim rendered the actual removal unlawful. The court nevertheless refused to quash the decision or order the claimant’s return. The claimant was entitled to damages, to be assessed if not agreed.

First-instance judicial review in the Administrative Court. The application was refused, but the court declared that the claimant’s removal was unlawful and held that he was entitled to damages.