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

Judicial review is ordinarily inappropriate where an applicant has a statutory appeal, including an out-of-country appeal, capable of determining the disputed facts. The court should intervene only where special or exceptional factors exist, such as a decision that clearly defies reality. Questions involving credibility and the interpretation of evidence about alleged breach of immigration conditions are generally for the statutory tribunal.

An immigration officer must recognise the discretion to curtail leave rather than make a removal decision. The absence of express reference to that discretion in the removal notice does not itself make the decision unlawful, provided the discretion was understood and exercised. A statutory appeal may also provide a suitable remedy for an alleged failure properly to exercise that discretion.

The claimant, an Indian national holding leave to remain subject to a no-work condition, was arrested after immigration officers encountered her at a hair and beauty salon. She denied working, but the Secretary of State treated her admitted assistance and the officers’ observations as unpaid employment and served an IS151A Notice to a Person Liable to Removal.

She sought judicial review, arguing that the factual decision should be reviewed in-country and that the decision-maker had failed to consider curtailing her leave, which would have carried an in-country right of appeal. The central issues were whether the available out-of-country appeal was an adequate alternative remedy and whether the removal decision was unlawful for failure to consider or record the curtailment discretion.

1. Judicial review of the alleged breach. The claim was refused. Following SSHD v Lim [2007] EWCA Civ 773 and R (RK (Nepal)) v SSHD [2009] EWCA Civ 359, an out-of-country statutory appeal is generally an adequate alternative remedy. Judicial review remains available in principle, but its use depends on the nature of the issues and requires special or exceptional factors.
2. The evidence did not make this such an exceptional case. The issues included the interpretation of what the officers saw and heard, whether the claimant’s clothing amounted to a uniform, what she intended to do, and the credibility of later statements. The officer’s conclusion was not irrational, and the judge could not fairly determine the precedent fact as a primary decision-maker on the papers. The factual similarity with R (Mohamed Bilal Jan) v SSHD [2014] UKUT 00265 (IAC) reinforced that conclusion.
3. Discretion to curtail leave. The decision-maker had to consider both whether the claimant was liable to administrative removal and whether, in all the circumstances, it was fair to treat her as liable to removal rather than curtail her leave. The evidence showed that the officers knew of and considered that discretion. The GCID notes and the senior officer’s statement supported that conclusion.
4. The court accepted and followed R (Mohamed Bilal Jan) v SSHD on the point that the exercise of the discretion did not have to appear on the face of the removal notice. To that extent, if inconsistent, R (Thapa) v SSHD [2014] EWHC 659 (Admin) was not followed. R (Khan) v SSHD [2014] EWHC 2494 (Admin) and R (Shahbaz Ali) v SSHD [2014] EWHC 3967 (Admin) supported that interpretation.
5. The First-tier Tribunal could consider fairness and any failure to appreciate or exercise the discretion. The claim was therefore refused on alternative-remedy grounds as well. It was unnecessary to determine whether detention would have been unlawful if the removal decision had been quashed.

First-instance judicial review proceedings. Permission was granted by HHJ Allan Gore QC on 25 July 2014. The claim was refused by the High Court (Administrative Court).