Oyekan v Secretary of State for the Home Department

Judicial review is generally refused where an effective statutory appeal remains available. This is particularly so where a fresh decision provides an in-country right of appeal allowing the relevant facts and law to be determined on the merits. Case-management directions made at the permission stage cannot compel the substantive judge to grant relief or deem a decision unlawful. Judicial review remedies remain discretionary, and relief may be withheld even if unlawfulness is established. A superseded removal decision may become academic. A claimant is not partly successful for costs merely because a fresh decision creates an appeal route that was not the remedy sought. Costs remain a matter of broad judicial discretion.

The appellant, a Nigerian national, applied for an EEA residence card under the Immigration (European Economic Area) Regulations 2006, relying on a proxy marriage to a Swedish EEA national. The Secretary of State refused the application. The First-tier Tribunal dismissed her statutory appeal, and permission to appeal to the Upper Tribunal was not pursued.

After a removal decision under the Immigration and Asylum Act 1999, the appellant brought judicial review proceedings. During those proceedings the Secretary of State made a fresh decision refusing the residence card but granting an in-country right of appeal. The Upper Tribunal dismissed the judicial review claim and made no order as to costs. The issues before the Court of Appeal were whether the case-management directions required relief, whether judicial review had become academic or was barred by an alternative remedy, and whether the appellant was entitled to costs.

1. Appeal dismissed. The Upper Tribunal was correct to refuse judicial review because the Secretary of State had made a fresh decision carrying an in-country statutory appeal. That appeal could determine the facts and law concerning the proxy marriage and entitlement to a residence card on their merits, and was therefore a superior remedy. Applicants for judicial review must generally exhaust adequate alternative remedies.
2. The appellant identified no satisfactory reason for pursuing judicial review instead of the statutory appeal. An out-of-country right of appeal is generally adequate unless the case is exceptional, applying RK (Nepal) v Secretary of State for the Home Department [2009] EWCA Civ 359 and R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744. This case was not exceptional.
3. Case-management directions made at the permission stage could not require the substantive judge to quash the removal decision or treat the Secretary of State as having accepted unlawfulness. Judicial review remedies are discretionary. The substantive court could withhold relief even if the challenged decision were unlawful, and the availability of an effective alternative remedy was a strong reason to do so.
4. The challenge to the earlier removal decision had also become academic because that decision had been superseded by the fresh decision. The earlier decision attracted a statutory appeal under sections 82(2)(g) and 82(1) of the Nationality, Immigration and Asylum Act 2002. The appellant could not use judicial review to rerun the proxy-marriage issue after it had been determined by the First-tier Tribunal and her statutory appeal rights had been exhausted. That would be an abuse of process.
5. The costs argument failed. The proceedings had not been settled by consent, the appellant had not obtained the remedy sought, and the creation of an in-country appeal did not make her partly successful. The principles in M v Croydon London Borough Council [2012] EWCA Civ 595 and R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415 were distinguishable. The Upper Tribunal had a wide discretion to make no order as to costs, as recognised in HE v Secretary of State for the Home Department [2013] EWCA Civ 1846, and exercised it pragmatically. The appellant was ordered to pay the Secretary of State’s costs of the appeal.

• Court of Appeal (Civil Division): Appeal from the Upper Tribunal dismissed. The appellant was ordered to pay the Secretary of State’s costs.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Freeman dismissed the judicial review claim and made no order as to costs.
• First-tier Tribunal: Judge Metzer dismissed the appellant’s appeal against refusal of the residence-card application. Permission to appeal to the Upper Tribunal was not pursued.