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

A statutory out-of-country immigration appeal should be displaced by judicial review only where special or exceptional factors exist. The circumstances must provide compelling evidence that the issues cannot properly or fairly be determined in that appeal.

A legitimate expectation requires a clear, unambiguous and unqualified representation. Even an arguable breach will not ordinarily make the statutory appeal inadequate. Nor will a challenge to past detention ordinarily justify judicial review after release. The removal decision should first be determined by the statutory tribunal, after which any civil claim concerning detention may proceed. Continuing detention, serious ill-health, jurisdictional fact or abusive manipulation of the appeal system may exceptionally justify more immediate judicial review, but the threshold is very high.

The appellant, an Indian student, applied to vary his leave using an English-language certificate issued by ETS. After ETS reported that his test had involved a proxy test-taker, the Secretary of State refused the variation application, made a removal decision under section 10 of the Immigration and Asylum Act 1999, and detained him. He disputed the allegation and relied on a later language test passed after a Home Office letter had invited alternative evidence.

The Administrative Court refused permission to seek judicial review: [2014] EWHC 3876 (Admin). The appellant appealed, contending that the Home Office letter created a legitimate expectation and that the alleged unlawfulness of removal was linked to the lawfulness of his detention. The central issue was whether those matters were special or exceptional factors permitting judicial review despite the statutory out-of-country appeal.

1. Appeal dismissed. Beatson LJ, with whom King and Richards LJJ agreed, held that the appellant had shown no special or exceptional factor warranting judicial review in place of the out-of-country appeal provided by section 82 of the Nationality, Immigration and Asylum Act 2002.

2. The Home Office letter did not create the asserted legitimate expectation. It promised only that supplying evidence from another test provider would permit the application to progress while ETS discrepancies were investigated. It contained no clear representation that later evidence would be taken into account notwithstanding a finding that deception had been used in the earlier test. A legitimate expectation can arise only from a clear, unambiguous and unqualified representation.

3. The allegation of deception, the reliability of the Secretary of State’s generic ETS evidence, the expert evidence and any procedural unfairness were suitable for determination in the statutory appeal. Judicial review was unsuited to resolving evidential disputes likely to require oral evidence and cross-examination. Inconvenience, educational expense, reputational shame and the desire to clear one’s name before returning abroad did not make the statutory remedy inadequate.

4. The connection between removal and detention did not justify judicial review once the appellant had been released. The tribunal should first determine the merits of the removal decision. The appellant could then challenge his historic detention and seek damages in the civil courts. The position might differ where a person remains detained, because the strong interest in promptly determining the legality of continuing detention could constitute a special or exceptional circumstance.

5. Even an arguable breach of legitimate expectation would not, without more, be special or exceptional. Procedural unfairness commonly arises in immigration appeals and can ordinarily be corrected within that process. Judicial review might be available where compelling evidence shows that an out-of-country appeal cannot properly or fairly determine the issues. Possible examples include jurisdictional fact, abusive manipulation of the statutory system, continuing detention, serious ill-health or another exigency, but the threshold is very high.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2015] EWCA Civ 831 .

2. High Court, Administrative Court: A Deputy Judge refused the renewed application for permission to seek judicial review: [2014] EWHC 3876 (Admin).

3. High Court, Administrative Court: Blake J had earlier refused permission on the papers.