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

Judicial review remains a remedy of last resort where Parliament has provided an adequate statutory appeal. Permission to apply for judicial review does not prevent the defendant from relying at the substantive hearing on an alternative remedy which was raised before permission was granted.

In challenges to removal under section 10 of the Immigration and Asylum Act 1999, disputes about deception, precedent fact, evidence and procedural fairness will ordinarily be resolved through the statutory out-of-country appeal. Such matters are rarely special or exceptional factors making that remedy inadequate. The claimant’s prospects of success, even if weak, do not justify bypassing the statutory appeal.

The claimant, a Bangladeshi national, challenged directions for his removal under section 10(1)(b) of the Immigration and Asylum Act 1999. The Secretary of State alleged that his TOEIC speaking test had been taken by a proxy, following an ETS finding that the result was invalid.

The claimant argued that permission for judicial review had resolved the alternative-remedy issue, that deception was a precedent fact for the court, that his evidence and the decision in SM and Qadir made an out-of-country appeal futile, and that he had not received adequate prior notice of the allegation. The central issue was whether those matters constituted special or exceptional factors making the statutory appeal inadequate.

1. The claim was dismissed. The fact that permission had been granted did not bar the Secretary of State from relying at the substantive hearing on the availability of an adequate alternative remedy, where that issue had been raised before permission was granted. The contrary observations in Mohammed Azmool Miah were dicta and were respectfully rejected (paras [19]–[26]).
2. Judicial review is a remedy of last resort. Under sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002, an out-of-country appeal was the remedy Parliament intended for a challenge to removal under section 10. The existence of a dispute about whether deception occurred did not require determination in judicial review. The Court of Appeal’s decision in Lim and Sew showed that such factual issues should ordinarily be dealt with in the statutory appeal (paras [27]–[34]).
3. The claimant’s evidence and the favourable, fact-sensitive decision in SM and Qadir did not show that his appeal would inevitably or almost certainly succeed. The absence of the expert evidence relied upon in that case, and the importance of cross-examination, meant that the evidence could not establish a special or exceptional factor. Even a case with no real prospect of success would not justify bypassing the statutory remedy (paras [35]–[46]).
4. Procedural fairness arguments, including the absence of prior notice and disclosure of the underlying evidence, could be considered in the statutory appeal. They were therefore not, on the facts, special or exceptional factors making the alternative remedy inadequate. The gist of the evidence had been communicated with the removal decision (paras [47]–[54]).

First-instance judicial review proceedings. The judgment records that permission had been granted by HH Judge Cooke QC after transfer from the Upper Tribunal; no prior merits decision in the same litigation is stated.