E v Secretary of State for the Home Department

An academic judicial review claim should ordinarily be dismissed unless there is a good reason in the public interest to determine it. A claimant who knowingly and unequivocally withdraws or abandons an immigration appeal cannot revive an otherwise academic challenge by relying on an alternative construction of the statutory scheme. A valid waiver requires a voluntary, informed and unequivocal election; legal advice informing the decision need not be correct. Immigration appeal arrangements linking an in-country appeal to continued presence in the United Kingdom, with possible detention on national-security grounds, are not thereby disproportionate or incompatible with Convention rights.

The claimant, a recognised refugee and holder of indefinite leave to remain, challenged the treatment of his appeal against cancellation of that leave after he left the United Kingdom and was removed to Russia. He had been detained because of an assessed national-security threat and had been advised that leaving would end his appeal. He nevertheless confirmed that he wished to withdraw or abandon it and signed a waiver.

The claim also challenged the statutory consequences of departure and relied on Convention rights, including the right to a fair hearing and protection against arbitrary detention. Permission had been granted on limited human-rights grounds, while the domestic construction of section 104 of the Nationality, Immigration and Asylum Act 2002 was treated as settled.

1. Disposition. The claim for judicial review was dismissed. The claimant had made a positive withdrawal or abandonment of his appeal in full knowledge that departure might bring it to an end. The statutory-construction issue was therefore academic.
2. The court followed the approach in R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450. Academic public-law disputes should be heard only cautiously and where a good public-interest reason exists, such as a discrete recurring issue of statutory construction. No such exceptional circumstances existed. The claim was unusual and no substantial class of similar cases was shown. The approach was also applied in R (Zoolife International Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin).
3. On the facts, the claimant understood that departure could end his appeal, knew that his solicitors advised him to remain, and consciously chose to leave quickly. The court accepted that this was a voluntary, informed and unequivocal election within the approach in Millar v Dickson [2002] 1 WLR 1615. Correct legal advice was not a necessary condition of valid waiver.
4. The Convention arguments failed. Article 6 did not apply to immigration proceedings, following Maaouia v France (2003) 33 EHRR 1037 and RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110. Omar v France (2000) 29 EHRR 210 was not a true parallel: detention was not an inevitable condition of pursuing this appeal, bail was available, and an out-of-country appeal could have avoided detention.
5. The detention had a clear and proportionate connection with the national-security risk and was not arbitrary in the relevant sense. The claimant was not misled, and the statutory link between presence in the United Kingdom and maintenance of an in-country immigration appeal was rational, fair and comprehensible. The arrangement did not breach protected Convention rights.