Mohammed Azmool Miah, R (on the application of) v The Secretary of State for the Home Department

Where an immigration removal decision made under the former section 10 regime carries an effective out-of-country statutory appeal, judicial review is ordinarily unavailable. Judicial review is a discretionary remedy of last resort. It will be entertained despite that remedy only in truly exceptional circumstances.

The appeal may determine whether there was a breach, whether the removal decision was fair, and whether relevant policy was considered. The marginal character of the alleged work does not itself make judicial review appropriate. Under the later statutory regime, where no appeal exists for such issues, judicial review remains the appropriate means of challenging arguably unlawful action.

The applicant, a Bangladeshi student, had leave subject to a condition prohibiting work except a work placement. Immigration officers found him helping at a restaurant where he lived rent-free. The Secretary of State treated this as work in breach of his conditions and made a removal decision under Immigration and Asylum Act 1999, section 10.

He sought judicial review, contending that his assistance was too marginal to amount to work. Permission was initially refused, but was later granted on an arguable irrationality ground. At the substantive hearing the Secretary of State was permitted to amend her grounds to rely on the applicant’s preserved out-of-country appeal.

The central issue was whether exceptional circumstances justified judicial review despite that alternative statutory remedy.

1. The application for judicial review was dismissed. The applicant retained an out-of-country appeal under the pre-2014 section 10 regime. That remedy could address every legitimate factual or legal complaint, including whether there had been a breach of conditions, fairness, policy, and the lawfulness of removal.
2. Following R (Lim) v SSHD [2007] EWCA Civ 773, judicial review is discretionary and a remedy of last resort. The existence of a statutory appeal normally requires refusal of judicial review even if the appeal is less convenient or cannot prevent removal. Only exceptional circumstances justify departure from that rule. The alleged work’s marginal nature, the discontinuance of a civil penalty, and the inconvenience or disproportionality of removal did not meet that threshold.
3. The European Union concept of economic activity did not assist. Brown v Sec State for Scotland concerned whether a person was a worker for EU-law purposes. The relevant question here was whether the applicant had worked within the meaning of the Immigration Rules.
4. The Tribunal added, obiter, that the transitional arrangements preserving old section 10 appeals meant the same conclusion would generally apply to comparable pending cases. For decisions under the later regime, no equivalent appeal would generally be available to determine fairness, policy, or public-law proportionality. Judicial review would then be the appropriate remedy for an arguably unlawful act. The judge also observed that a challenge to curtailment under the new regime would proceed on conventional public-law principles rather than precedent fact.
5. Although the respondent succeeded, her late reliance on alternative remedy had caused avoidable costs. The applicant was ordered to pay reduced costs of £500.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge McGeachy refused permission on 16 February 2015, including because an out-of-country appeal was available.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Warr granted renewed permission on 24 April 2015 on the basis that the removal decision was arguably irrational. At the substantive hearing, the Tribunal permitted the respondent to amend her grounds to rely on alternative remedy and dismissed the judicial review application.