Saqib Zia Khan, R (on the application of) v The Secretary of State for the Home Department

Where a person disputes the Secretary of State’s assertion that an immigration decision carries no right of appeal, the ordinary and appropriate course is to lodge a notice of appeal with the First-tier Tribunal and ask it to determine its own jurisdiction. Judicial review remains discretionary.

Where Parliament has established a specialist statutory appeal regime, relief by judicial review will ordinarily be refused if that regime provides a convenient, expeditious and effective remedy. Departure from it requires special reasons or exceptional circumstances. The possibility that a defective decision notice may be waived, and that the First-tier Tribunal can resolve the right-of-appeal issue, may make the statutory route suitable.

The applicant, a Pakistani national, sought judicial review of the Secretary of State’s refusal of his later application for leave to remain. The refusal letter stated that there was no right of appeal.

He did not challenge the merits of the refusal. He contended that he had a right of appeal because an earlier in-time application had extended his leave under section 3C of the Immigration Act 1971. The Secretary of State submitted that the First-tier Tribunal should determine that issue if the applicant lodged an appeal.

Permission for judicial review had been granted, but the alternative-remedy issue was raised at the substantive hearing. The central question was whether the availability of an appeal to the First-tier Tribunal made judicial review inappropriate.

1. The judicial-review claim was dismissed. The applicant had an effective alternative remedy. He could lodge an appeal against the decision of 24 May 2013 and ask the First-tier Tribunal to determine whether it was an immigration decision carrying a right of appeal.

2. Under section 82(1) and section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002, the First-tier Tribunal’s statutory jurisdiction included the question whether the refusal attracted a right of appeal. Basnet (Validity of application – respondent) [2012] UKUT 00113 illustrated that an appellant may file an appeal despite the Secretary of State’s contrary assertion and that the Tribunal may decide the jurisdictional issue.

3. A defective notice which fails to identify a right of appeal does not cause time for appeal to run. The recipient may nevertheless waive compliance with the Immigration (Notices) Regulations 2003 by lodging an appeal. OI (Notice of decision: time calculations) Nigeria [2006] UKAIT 00042 did not establish that judicial review must be available to enforce compliance where the same practical result could be achieved by waiver and appeal.

4. The existence of an alternative remedy is not an absolute bar. However, where Parliament has created a specialist statutory scheme, special reasons or exceptional circumstances are needed to bypass it: R (on the application of) Willford v Financial Services Agency [2013] EWCA Civ 677. Its suitability depends on whether it is convenient, expeditious and effective, considering the decision’s nature and context, the statutory regime, the remedy’s reach, any need for fact-finding, and procedural convenience.

5. The First-tier Tribunal was equipped to decide complex factual and legal questions about jurisdiction. Its decision could itself be appealed or, at an earlier screening stage, challenged by judicial review. Judicial review was also a less suitable forum for contested factual questions. The applicant identified no exceptional feature outweighing the statutory route. Any risk of time expiring while that route was pursued could be addressed by an extension of time for judicial review.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was granted by Upper Tribunal Judge Freeman on 16 August 2014. Upper Tribunal Judge O’Connor dismissed the substantive claim on 15 June 2015 because an appeal to the First-tier Tribunal was an effective alternative remedy.