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

An out-of-country statutory appeal is ordinarily an adequate alternative remedy to judicial review of a removal decision. Disputes about deception, expert evidence and procedural fairness will rarely amount to special or exceptional factors justifying judicial review. A later removal notice does not remove a vested appeal right unless it clearly supersedes the earlier decision. Detention under Immigration Act 1971 Schedule 2 is lawful where there is a realistic prospect of removal within a reasonable period, assessed in the circumstances existing during detention.

The claimant challenged a notice of liability to removal under section 10 of the Immigration and Asylum Act 1999, and her detention from 16 March to 13 April 2016. Her earlier removal decision, served in 2014, carried a right of appeal to the First-tier Tribunal from outside the United Kingdom. She argued that the later notice had removed that right, that an out-of-country appeal was inadequate in the context of disputed TOEIC evidence, and that requiring her to use it was conspicuously unfair.

The court determined the alternative-remedy issue as a preliminary issue and separately considered the legality of detention.

1. Alternative remedy. The claimant retained the vested right to bring an out-of-country appeal against the 2014 removal decision. The 2016 notice did not set aside or supersede it. It expressly referred back to and endorsed the earlier decision, so a challenge would in substance address the same removal decision.
2. An out-of-country appeal was an adequate alternative remedy. The governing Court of Appeal authorities establish that judicial review of a section 10 removal decision is appropriate only where special or exceptional factors exist. Disputes of fact, disputes between experts, alleged deception and procedural-fairness complaints will rarely satisfy that threshold because they can be determined in the statutory appeal process. The fact-sensitive TOEIC authorities reinforced, rather than displaced, that conclusion.
3. The reasoning in Mohibullah did not assist the claimant. That case concerned a decision-making route which had deprived the applicant of a statutory appeal. Here, the Secretary of State had preserved the claimant’s appeal right. It could not sensibly be unfair to refrain from removing a vested right.
4. The judicial-review challenge to the removal decision was therefore dismissed. There were no special or exceptional factors and no conspicuous unfairness. The alternative res judicata or abuse-of-process argument was unnecessary to determine.
5. Detention. Detention under paragraph 16 of Schedule 2 to the Immigration Act 1971 was lawful where there was a realistic prospect of removal within a reasonable period. Removal was initially imminent, and the claimant presented a reasonable risk of absconding. After the intended removal was cancelled, it remained reasonable to consider that the judicial review claim might be expedited and the obstacle removed quickly. The Hardial Singh principles were not breached. The claim was dismissed in its entirety.

First-instance judicial review proceedings. The claim was transferred from the Upper Tribunal to the Administrative Court because the detention challenge fell outside the Upper Tribunal’s jurisdiction.