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

A judicial review claimant must pursue an available statutory immigration appeal unless special or exceptional circumstances, supported by evidence, make that remedy inadequate. An out-of-country appeal against an appealable removal decision is presumptively an adequate alternative remedy.

The duty of candour in judicial review is continuing. A claimant’s representatives must provide material evidence, reassess the viability of the claim after the respondent’s acknowledgement of service, and promptly withdraw or take other procedural steps if the challenge has become unsustainable or moot. Failure may justify refusal of permission, costs consequences, and other procedural measures.

The applicant, a Pakistani Tier 4 student, sought judicial review of decisions refusing leave to remain, removing him from the United Kingdom and giving removal directions. The Secretary of State considered that his English-language certificate had been obtained through a proxy test taker and therefore by deception.

The applicant alleged that he had been promised 60 days in which to make a fresh application, challenged the alleged non-compliance with policy and evidence of deception, and made an unparticularised Article 8 claim. An interim order had restrained removal, but the applicant supplied neither the documents said to support his case nor a witness statement after the respondent’s acknowledgement of service.

The central issues were whether any ground was arguable and whether an out-of-country statutory appeal was an adequate alternative remedy.

1. Permission was refused. The applicant had not established an arguable public-law challenge. He failed to provide the documents on which his principal factual assertions depended. The Tribunal was entitled to determine the application on the basis that the alleged materials were non-existent or irrelevant: [5]–[6].

2. Paragraph 322(1A) of the Immigration Rules required refusal of leave where deception had been used. The policy relied on did not relax that mandatory rule in a deception case. The respondent’s evidence that a proxy had taken the English-language test was unanswerable on the material supplied: [6]–[7], [9].

3. The Article 8 ground was bare, unsupported and below the arguability threshold. The opportunity to continue education in the United Kingdom is not, without more, private life protected by Article 8: [8].

4. Independently, the applicant had an out-of-country appeal to the First-tier Tribunal against the removal decision under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002. Judicial review is a remedy of last resort. That appeal was presumptively adequate, and no evidence identified special or exceptional factors capable of displacing the presumption: [10]–[13].

5. The Tribunal emphasised that the applicant’s duty of candour endures throughout judicial review proceedings. Representatives must disclose material facts and evidence, actively reassess a claim after the acknowledgement of service, communicate promptly where events overtake it, and initiate withdrawal where the challenge becomes unsustainable. In an appropriate case, a full witness statement is required even without a specific procedural direction: [15]–[26].

6. The interim relief order was discharged. The applicant’s solicitors were directed to explain the identified failings; costs were provisionally contemplated, subject to representations: [27]–[29].

not stated in the judgment.

• Upper Tribunal (Immigration and Asylum Chamber): an interim order restraining removal was made on 16 May 2014. This decision refused permission for judicial review and discharged that order.