Shah, R (On the Application Of) v The Secretary of State for the Home Department

Where notification of removal under the Immigration and Asylum Act 1999 invalidates existing leave, there is no separate operative decision refusing an application to vary that leave. The resulting immigration decision is the removal decision. Any statutory appeal must be pursued in the forum and from the place prescribed by the legislation. Judicial review should not proceed where that appeal provides an adequate alternative remedy. Detention pending removal is lawful where the Hardial Singh requirements are met.

This was a renewed application for permission to apply for judicial review. The claimant challenged the alleged refusal of further leave to remain, a decision to remove him under section 10 of the Immigration and Asylum Act 1999, and his detention pending removal.

The central issues were whether the claimant had an in-country right of appeal against refusal of variation, whether removal gave rise only to an out-of-country appeal, and whether the detention was lawful.

1. Permission refused. The claim for permission to apply for judicial review was refused.
2. The dispute about whether the claimant personally took the English-language test, or used a proxy, was properly for the First-tier Tribunal on appeal.
3. Under section 10(8) of the Immigration and Asylum Act 1999, notification of removal invalidated the claimant’s previous leave. There was therefore no leave remaining which could be varied.
4. The true operative decision was removal under section 10(1)(b). It carried an out-of-country right of appeal. There was no separate immigration decision under section 82(2)(d) giving rise to an in-country appeal.
5. The detention was lawful. The defendant intended to remove the claimant, detained him for that purpose, acted reasonably and with reasonable diligence and expedition, and had power to detain under paragraph 71(2) of the relevant Act.