Mohamed Bilal Jan, R (on the application of) v The Secretary of State for the Home Department

A removal decision under Immigration and Asylum Act 1999, section 10, is not unlawful merely because it does not expressly explain why curtailment or another option was rejected. The decision-maker must, however, consider a specific issue about the enforcement course or mitigating circumstances that was raised before the decision.

An out-of-country statutory appeal is ordinarily an adequate safeguard against section 10 removal. Judicial review remains a remedy of last resort and is inappropriate unless special or exceptional factors justify it. The First-tier Tribunal may determine whether a removal decision was procedurally unfair or otherwise unlawful under the statutory ground that it was not in accordance with the law.

The applicant, a Pakistani student with limited leave, was encountered at a hairdresser's. The Secretary of State concluded that he had worked in breach of his conditions and decided to remove him under section 10 of the Immigration and Asylum Act 1999.

He sought judicial review. He denied working and argued that the Secretary of State should have chosen curtailment, which would have given him an in-country appeal. He also challenged service, the absence of a section 120 notice, and the adequacy of an out-of-country appeal. Permission was granted after the decision in Thapa v Secretary of State for the Home Department [2014] EWHC 659 (Admin).

The central issues were whether the removal decision was unlawful or unfair, whether it carried an in-country appeal, and whether judicial review was appropriate despite the statutory appeal available after removal.

1. The judicial-review application was dismissed. There was ample evidence on which the decision-maker could conclude that the applicant had worked in breach of his student conditions. The breach was sufficiently serious for removal under section 10, and the applicable enforcement guidance had been satisfied.

2. The Secretary of State had a discretion between no action, warning, curtailment and removal. A removal decision does not generally require an express explanation of why every alternative was rejected. An express consideration may be required where, before the decision, a specific issue about the enforcement route or a particular mitigating circumstance is raised. None was raised here. The interview record also showed that mitigating circumstances had been sought, demonstrating awareness of the discretion.

3. Invalidation of leave under section 10(8) was not a variation of leave giving rise to an in-country appeal. The applicant's statutory appeal was exercisable only after departure. An appeal from abroad remained available on the relevant human-rights ground, although the separate statutory restriction applied to the Refugee Convention/removal ground.

4. The Tribunal followed R (Lim) v Secretary of State for the Home Department [2007] EWCA Civ 773 and RK (Nepal) v Secretary of State for the Home Department [2009] EWCA Civ 359. Parliament treats the out-of-country appeal as an adequate safeguard for section 10 removal, absent special or exceptional factors. The First-tier Tribunal can consider procedural fairness and the lawfulness of the exercise of discretion under the ground that a decision is otherwise not in accordance with the law. The contrary approach in Thapa v Secretary of State for the Home Department [2014] EWHC 659 (Admin) was wrongly decided and should not be followed.

5. Section 120 of the Nationality, Immigration and Asylum Act 2002 conferred a discretionary power, not a duty to serve a notice. No special or exceptional factor justified judicial review rather than the statutory appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was refused on the papers on 16 January 2014, but granted on oral reconsideration on 24 March 2014. The Tribunal dismissed the claim challenging the section 10 removal decision.