Mehmet Poyraz, R (on the application of) v The Secretary of State for the Home Department

Judicial review will ordinarily be refused where a pending statutory appeal provides a convenient and effective alternative remedy. The existence of that remedy does not oust the court’s jurisdiction, including after permission has been granted. The court must assess whether the appeal can resolve the legal and factual issues more effectively than judicial review.

An imminent appeal before a tribunal able to hear oral evidence, make factual findings and issue binding directions will generally be the preferable forum. Past administrative delay or withdrawn decisions will not displace that conclusion without a sound basis for finding that the appeal process will be abused or ineffective.

The applicant, a Turkish citizen with longstanding residence and family ties in the United Kingdom, challenged a decision of 29 October 2013 to deport him following a conviction in 2000. He also sought relief concerning an unresolved application for leave made in 2004 and the Secretary of State’s continuing power to deport him by reference to the conviction.

Earlier deportation proceedings had been withdrawn shortly before a First-tier Tribunal hearing. The First-tier Tribunal had made observations that the earlier decision was unlawful and would have been disproportionate. A fresh appeal against the October 2013 decision was listed for 6 May 2014.

The central issue was whether that statutory appeal was an adequate alternative remedy, so that the judicial review application should be refused.

1. The application was refused. It remained appropriate to determine the alternative-remedy issue despite the earlier grant of permission. Permission had been granted on a limited paper consideration of arguability and did not preclude resolution of that issue at the substantive hearing.

2. The existence of a statutory appeal did not oust the Upper Tribunal’s judicial-review jurisdiction. The relevant question was whether the alternative remedy was convenient and effective. The Tribunal accepted the principle stated in R (Shoesmith) v Ofsted [2011] EWCA Civ 642, but held that the circumstances pointed strongly towards use of the pending appeal.

3. The imminent First-tier Tribunal appeal was both the appropriate and the better forum. It could receive oral evidence from the applicant and his family, make factual findings, determine alleged legal errors and decide the human-rights issues. If it allowed the appeal, it could make binding directions under section 87 of the 2002 Act. Judicial review could not improve the applicant’s position: even a quashing order and declaration would require a further decision by the Secretary of State and would be likely to cause further delay.

4. The Tribunal recognised the regrettable delay and the applicant’s hardship. However, the prior late withdrawal of a decision did not justify an inference that the Secretary of State would cynically manipulate the forthcoming appeal. There was no reason to suppose that the listed hearing would not conveniently and effectively determine the case.

• Upper Tribunal (Immigration and Asylum Chamber): permission to bring judicial review was granted on 14 January 2014. The application was subsequently refused because the pending statutory appeal provided an adequate alternative remedy.

• First-tier Tribunal: an earlier deportation decision was withdrawn before determination on 23 October 2013. The tribunal recorded that it would have found that decision unlawful and disproportionate. An appeal against the fresh decision of 29 October 2013 was listed for 6 May 2014.