Qadeer v The Secretary of State for the Home Department

Judicial review of a removal decision under section 10 is a remedy of last resort where an out-of-country statutory appeal is available. The High Court retains jurisdiction for precedent-fact cases and genuinely special or exceptional circumstances, but the exception is narrow. Disputes involving evidence and credibility, the relative difficulty of an out-of-country appeal, or the Secretary of State’s choice between section 10 removal and curtailment will ordinarily remain for the statutory tribunal. An applicant cannot necessarily defeat a deception-based application by unilaterally withdrawing it after concerns arise. Where the statutory appeal provides the appropriate forum for resolving the allegation, refusal to intervene does not breach Article 6.

The claimant, a Pakistani national with leave as a Tier 4 student, applied for a Tier 1 (Entrepreneur) visa. He later sought to withdraw the application, asserting that forged documents had been supplied to him and that he was an innocent victim of fraud.

The Secretary of State nevertheless determined the application, refused it for deception, and made a removal decision under section 10 of the Immigration and Asylum Act 1999. The claimant therefore had an out-of-country appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. Permission for judicial review was granted on the ground that an in-country appeal should have been provided. At the substantive hearing, the claimant advanced precedent-fact and special-or-exceptional-circumstances arguments, together with an Article 6 argument.

1. The claim was dismissed. The claimant was ordered to pay the defendant’s costs, to be assessed if not agreed.

2. The court adopted the analysis in R(Amzat Rauf Khan)-v-SSHD [2014] EWHC 2494 (Admin). Although the High Court retains a residual discretion to entertain judicial review where a statutory appeal exists, judicial review is a remedy of last resort. The court will ordinarily decline jurisdiction unless the case concerns a precedent fact or falls within a narrow category of special or exceptional circumstances.

3. The question whether the claimant’s application remained extant after he sought to withdraw it was not a precedent fact. It was an ordinary factual issue, unlike the fundamental issues identified in the authorities. In any event, the Secretary of State was entitled to make the final decision on withdrawal. Allowing an applicant unilaterally to withdraw an application supported by deceptive material could enable the applicant to avoid the consequences of seeking leave by deception.

4. The claimant’s circumstances did not justify judicial review. The allegation required assessment of evidence and credibility, matters suitable for determination by the tribunal on the out-of-country appeal. The comparative difficulty of that appeal did not itself constitute a special or exceptional factor.

5. The Secretary of State was entitled to use the section 10 route rather than curtailment, even though curtailment would have carried an in-country appeal. R(Anwar and Adjo)-v-SSHD [2010] EWCA Civ 1275 was factually distinguishable because the claimant in that case was established to be wholly innocent, whereas the claimant’s involvement in the deception remained unresolved. There was no serious abuse of power and no breach of Article 6.

First-instance judicial review. Permission was granted on one ground by Mr Justice Foskett following an oral renewal hearing, but the claim was dismissed on the merits.