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

Habeas corpus is inappropriate where the respondent neither detains the claimant nor has the means to produce or release him. Any complaint about the legality of past detention may instead be pursued by civil proceedings, which may also provide an adequate alternative remedy to judicial review. A purported fresh claim under paragraph 353 of the Immigration Rules does not itself create an in-country right of appeal. Permission should be refused where neither ground is arguable.

The claimant sought an oral renewal of an application for permission to bring judicial review proceedings concerning his immigration position. The Upper Tribunal had refused permission and directed that any oral reconsideration be made to the Administrative Court.

By the time of the hearing, the claimant had been removed to Jamaica. The proposed grounds concerned habeas corpus and an alleged denial of an in-country right of appeal following further submissions said to disclose a fear of persecution. The claimant also sought an adjournment to obtain representation.

1. The application for an adjournment was refused. There was no adequate evidence explaining why representation could not be arranged for the hearing or why a further adjournment was justified. The court also considered that the proposed grounds lacked merit.
2. The habeas corpus ground was untenable. Applying Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah [2012] UKSC 48, the remedy was inappropriate because, when the claim was issued, the claimant was outside the jurisdiction and was not in the Secretary of State’s custody. The Secretary of State therefore had no means of producing his release.
3. Complaints concerning the circumstances or legality of detention could, if appropriate, be pursued by civil proceedings against the Secretary of State. Such proceedings did not require the claimant’s presence in the jurisdiction. The availability of that alternative remedy was also a reason to refuse judicial review.
4. The alleged right of appeal did not arise. An in-country right of appeal depended on an immigration decision attracting such a right. The submissions alleging a fear of persecution for the first time after removal directions had been set were treated as a purported fresh claim under paragraph 353 of the Immigration Rules. The decision not to treat them as a fresh claim was not an immigration decision carrying a right of appeal.
5. The application for permission to seek judicial review was dismissed. There was no order for costs.

• Upper Tribunal: Permission was refused by Upper Tribunal Judge John Freeman in a decision dated approximately 11 April 2015. He directed that any oral reconsideration should be sought in the Administrative Court.
• High Court (Administrative Court): The oral renewal and application for an adjournment were refused; permission to seek judicial review was dismissed.