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

Judicial review is a remedy of last resort where a statutory immigration appeal exists, including an appeal exercisable only from outside the United Kingdom. The High Court retains jurisdiction for genuine precedent-fact issues and special or exceptional circumstances. Ordinary disputes about immigration conditions, enforcement routes, reasons, fairness and merits are generally suitable for the specialist Tribunal. Hardship caused by an out-of-country appeal, good faith, an important issue or the convenience of judicial review does not ordinarily suffice. Detention or employment consequences cannot be used to bring the underlying removal decision within judicial review.

The claimant, a Pakistani national with limited leave based on work-permit employment, was made subject to a decision under section 10 of the Immigration and Asylum Act 1999, detained pending removal and prevented from working. His statutory appeal was available only from outside the United Kingdom.

He challenged the removal, detention and employment restriction by judicial review. The Secretary of State argued that the statutory appeal was the suitable alternative remedy. The central issue was whether the High Court should entertain the judicial review despite that appeal route.

1. The order releasing the claimant from detention was interim relief directed only to detention. It did not determine the legality of the removal decision or the substantive judicial review grounds.
2. The High Court retains a residual discretion to hear judicial review despite a parallel statutory appeal, but judicial review is a remedy of last resort. Except in special or exceptional cases, the court should decline jurisdiction where the statutory appeal is suitable. The approach in R (on the application of Mohamed Bilal Jan) v SSHD (Section 10 removal) IJR [2014] UKUT 00265 (IAC) was preferred to that in R (on the application of Hom Bahadur Thapa) v SSHD [2014] EWHC 659 (Admin).
3. The High Court should ordinarily determine genuine precedent facts bearing on the power to remove, such as British citizenship or identity. An alleged breach of an immigration condition is not automatically a precedent fact. Where the material facts are substantially undisputed and the dispute concerns construction or legal inferences, the issue is ordinarily apt for the Tribunal.
4. The Tribunal could determine the construction and breach of the conditions, the lawfulness of using section 10 rather than curtailment, adequacy of reasons, fairness and other public-law grounds. Hardship from an out-of-country appeal, good faith, reliance on SIA clearance and the importance of the issues did not make this a special or exceptional case. Nor could detention operate as a means of bringing the removal challenge into the High Court.
5. The court declined to determine the substantive merits, including detention and employment restrictions, because those matters were intertwined with the unresolved removal challenge or were premature. The claim therefore failed and the claimant was limited to his out-of-country statutory appeal.