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

This claim is brought by Azmat Rauf Khan (the Claimant) who challenges decisions of the Secretary of State for the Home Department (“SSHD” or “the Defendant”). The first is a decision (“the section 10 decision”) pursuant to section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) to remove the Claimant from the United Kingdom and which accords to the Claimant only an out-of-country right of appeal. The second is a decision to detain him pending his removal. The third is a decision consequential upon the section 10 decision to deny to the Claimant a right to obtain employment. On 13^th February 2013 permission to seek judicial review of the said decisions was granted.

Directions were made for the service of an amended claim form and grounds for judicial review and supporting evidence and for the Defendant to serve further evidence and detailed grounds of defence. Paragraph 7 of the order granting permission specifically stated that the Defendant was not debarred from arguing at the substantive hearing that the Claimant’s application for judicial review should fail upon the basis that the Claimant had an alternative remedy, namely the pursuit of an appeal upon an out of country basis.

As matters developed the central issue advanced by the Defendant was in relation to the principles governing the jurisdiction of the High Court to entertain a judicial review in circumstances where the Claimant had an extant alternative remedy, namely a statutory appeal to the First tier Tribunal and Upper Tribunal (Immigration and Asylum Chamber) (“the Tribunal”, “First tier Tribunal” or “Upper Tribunal”, as appropriate), albeit on an out-of country basis. As to this there are differing views and approaches which have emerged in recent case law. As I explain below having heard full argument not only on this issue but also on the underlying merits of the dispute between the Claimant and the Defendant it is upon the point of principle that I have concentrated.

The facts relating to this case involve a number of twists and turns and in order to put the issues into proper context it is necessary to set them out in some detail.

The Claimant is a national of Pakistan. He was issued with a work permit on 23^rd July 2008 under permit reference number F498559. The work permit was issued to the prospective employer Positive Financial Services Limited, East Ham, London. The particulars of employment identify the occupation as an “Accounts Executive”. It specified that his remuneration would be £30,000. A work permit does not, in and of itself, constitute leave to enter. Accordingly, the Claimant sought and obtained entry clearance from the British High Commission in Islamabad. The entry clearance document records that the clearance so granted was valid for 60 months from 30^th September 2008 to 30^th September 2013. It was granted with specific reference to the Visa work permit F498559. Two conditions were attached to the entry clearance vignette which were in the following terms:

“No recourse to public funds.

Work (and any changes) must be authorised”.

Upon entering the United Kingdom the Claimant’s work permit was stamped confirming that his initial date of entry was 25^th October 2008. The Claimant thereafter commenced employment with Positive Financial Services Limited.

In a witness statement served for the purpose of these proceedings the Claimant explained that his employer advised him that he was entitled to undertake up to 20 hours part time work over and above his specified employment. It was suggested to him that he endeavoured to obtain security work as this was quite well paid. In paragraph 4 of his witness statement the Claimant stated that prior to performing additional work he sought clearance from the Security Industry Association (“SIA”) as follows:

“Based on this advice I applied for a security industry licence from the SIA. I read all their guidance regarding issue of SIA licences. This specifically stated that a licence would only be issued after liaison with the UKBA to verify an applicant’s entitlement to work. I was advised that I needed to do an SIA approved course and obtain an SIA badge/licence which cost me about £500 to £600 in total. I did that and then applied for a licence in or about mid to late 2009. It took a couple of months for the licence to be issued. Despite having obtained the licence, I was not able to get any actual security work for several months to start off with, and even thereafter I only got very limited shifts”.

He explained that the SIA’s own guidance clearly stated that they would verify his entitlement to work before they issued him with a licence. He stated that having been issued with a licence he was satisfied that the advice he had received from his employer and from others regarding his entitlement to perform supplementary work was correct. And it was at this point that he obtained part time supplementary work with a security firm. Evidence before the court showed the representations made by the SIA on its website in relation to “right to work checks”. The website information provided by the SIA, which is relevant for the purpose of the present case, is as follows:

“There is no legal responsibility for the SIA to carry out right to work checks; that is the role of the employer. Whilst we have no legal duty to check the right to work of individuals in our licensing decisions, we are continually improving our processes to ensure as far as we reasonably can that SIA licence holders are not illegal workers.

Since July 2007, we have worked with the UK Border Agency (UKBA) to check the right to work in the United Kingdom of all SIA licence applicants who are non-EEA nationals.

We also check the right to work of SIA licence holders from outside the EEA (i.e. individuals who have met our licensing criteria and have been granted a licence). Where the recorded right to work of a licence holder expires before their SIA licence, a further check is undertaken with the UKBA.

Employers are reminded of their legal obligation to check their employees with restricted hours Visas do not work more hours than allowed, and that they know an employee’s right to work expires before their SIA licence expires.

If the results of our checks suggest that the individual’s right to work has indeed expired, we will write to inform them of our intention to revoke their SIA licence(s) unless they can demonstrate a renewed right to work. They have 21 days to provide this evidence: if we do not receive a response within 21 days the decision to revoke their licence will automatically take effect”.

The SIA also explained that their licensing covered certain specified activity and in particular manned guarding (including security guarding core, door supervision, close protection, cash and valuables in transit, and public space surveillance using CCTV), key holding and vehicle immobilising. Licensing ensures that private security operatives are “fit and proper” persons who are properly trained and qualified to do their job.

It has been necessary to set these facts out because it is submitted, on behalf of the Claimant, that his application to the SIA for a licence would necessarily have involved the SIA liaising with the UKBA who would, thereby, have been aware that he was seeking employment outside the scope of the “approved” employment the subject of the work permit and that this was for a different employer and related to a different activity (security not accountancy).

Prior to the 2012 London Olympics the security firm which was providing the Claimant with employment secured a contract to provide security at various Olympic venues. Prospective employees were advised that the organisers of the Olympic Games required all security firms specifically to obtain UKBA clearance and confirmation of their entitlement to work, even if this had been hitherto obtained by the SIA. The Claimant explained that he had no concerns in this regard and, in consequence, sought a further accreditation. He explained that he considered that he was acting in accordance with his visa and that the SIA had satisfied itself, through confirmation from the UKBA, that he was entitled to perform this work. On 8^th May 2012 he presented himself for accreditation. UKBA staff were checking each person’s entitlement to work and were then issuing separate accreditation badges. Having submitted his documents he was informed that he was not entitled to do any work other than that of an accounts executive. He explained that, so far as he was aware, the UKBA had already authorised the work he performed in the security field during the SIA liaison process. He was at that stage told that he would be arrested for having violated the conditions of his Visa. He was taken to Leyton Police Station where he was interviewed.

He was subsequently interviewed on 9^th May 2012 by Mr C Anderson, Immigration Officer, at the UKBA headquarters at Becket House, London. A contemporaneous report of the interview and investigation has been provided to the court following a court order requiring disclosure of relevant documents. The report, in full, is in the following terms:

“The subject was referred to the Newham & Waltham LIT after being encountered at the Olympic Uniform Distribution and Accreditation Centre (UDAC). The subject presented his ppt as ID in order to collect accreditation as a member of AC Security Limited. It was noted that the subject had a work permit in his ppt.

The subject was questioned by CIO A Tulett who established from the subject that he works for Positive Financial Services as an account executive. He went on to state that he has been working with AP Security since 2010. Based on this information the subject was arrested by the police on suspicion of working in breach of his immigration conditions. The subject was taken to Leyton custody centre.

The subject was interviewed under caution at Leyton where he stated that he last entered the UK on 30/1/10, the subject travelled to Pakistan to visit family. The subject stated that when he arrived at Heathrow he presented his work permit and a letter from his employer confirming he was still employed with Positive Financial Services. The subject was issued with a Work Permit in July 2008 for employment as an Accounts Executive at Positive Financial Services for 60 months. The subject initially entered the UK in October 2008.

The subject confirmed that he started working for AP Security as a steward mid-2010 working on average 15-20 hours a week. The subject stated that he worked in the evenings after his regular job as a means of earning more income as he had the time to do it after his 9am-5pm work. He stated that he could not get other work within his field.

Whilst the subject was arrested for committing an offence under section 10(1)(a) of the Immigration and Asylum Act 1999 for working in breach of his leave conditions I was mindful that the subject stated that he is still working full time for the employer on the work permit, he has not changed employer, he has not stopped his work as an accounts executive, when he arrived back to the UK his circumstances had not changed and he had not employed deception at any stage. The case was referred to CIO J Bernthal, CIO R Jones and HMI S Blackwood who all offered differing opinions but collectively were not sure where an offence had been committed, it was not initially clear how the subject was in breach of his conditions. It was decided that the subject should be served an IS151A for breaching the conditions of his leave, however it was decided to give the subject TR to establish if the subject is still currently working with Positive Financial Services, as this would give clear clarification that the subject was in breach of his condition. It was subsequently established by CIO R Jones that the rules of supplementary employment are the subject can undertaken supplementary employment if it is outside your normal working hours; it is no more than 20 hours a week; it is in the same profession and at the same professional level for which your work permit was issued; and you are not employed by a recruitment agency, employment agency or similar business to provide personnel to a client.

The subject was requested to report to Becket House on 9/5/12. After discussing the case with HMI Blackwood I was instructed to detain the subject when he attended Becket House on the basis that he is not conducting employment in the same professional level as stated from the employment on the work permit as this constitutes a breach. I stated that the subject has not changed employment (given that the entry clearance states any change need to be authorised) and that the subject has not employed deception with regard to entry into the UK or continuing to work for his employer and that the issue of supplementary employment is not one contained within paragraph 128-135 of the Immigration Rules that were valid at the time the subject was issued LTE. It was not clear if this was guidance or a matter that constituted an offence under the legislation. Also it was discussed if this was a matter which was apparent to the subject whilst the E/C states work changes must be authorised is it a notion that is clear if the subject could only do work at the same level (given that the officers that had the case referred to them were unsure I would suggest not). I was instructed to detain the subject regardless of the points raised to HMI Blackwood.

CIO R Jones referred the matter to the Immigration Border and Policy Directorate who felt that this matter would be classed as a breach of the subject’s conditions.

The subject attended Becket House on 9/5/12 where he was served with an IS151A pt 2 and IS91 where he was detained (detention authorised by CIO R Jones)”.

The UKBA moved very swiftly indeed. On 8^th May 2012 the Defendant served a notice upon the Claimant to the effect that he was a person liable to be removed and that he was also liable to be detained. The reasons provided justifying the service of the notice were in the following form:

“You are specifically considered a person who has breached the conditions of your leave to enter the UK”.

The two reasons given for justifying detention were in the following terms:

“Your removal from the United Kingdom is imminent. You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place”.

On 9^th May 2012 the section 10 decision was adopted. This informed the Claimant of his statutory right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) “…after you have left the United Kingdom”. The decision sets out the possible grounds of appeal which included that the decision was not in accordance with the immigration rules, that it was unlawful as being discriminatory against him on grounds of race; that is was unlawful as being in violation of Convention rights’, that is was “otherwise not in accordance with the law” and that the discretion should have been exercised differently.

It is undeniably correct that the formal decisions were “thin” as to the reasons justifying them and this might be a ground that the Claimant can advance in an appeal. However, it appears that following his interview by the Immigration officer on 9^th May 2012 he was orally informed as to the reason why an adverse decision had been taken. In his witness statement the Claimant stated of the interview process:

“He [the Immigration Officer] went through the same questioning with me and then went off and spoke to his colleagues. He came back to me and told me that I would be detained. He also said that he had debated this issue with his superiors and clearly told me that ordinarily in this type of scenario, where a person is maintaining their job for which the work permit is issued, is found to be working elsewhere as well then a warning is normally issued. He explained to me that although I was allowed to do up to 20 hours supplementary work it had to be in the same field of work.”(Emphasis added).

The Claimant accepts therefore that on 9^th May 2012 he was therefore informed that the breach of condition was hence that the extra work he was undertaking was not within the same field of work as his permit, i.e. it was in security work not accounting.

There then followed correspondence between solicitors acting for the Claimant and the UKBA. Between 9^th May 2012 and 17^th May 2012 a series of letters were sent by the Claimant’s solicitors to the UKBA repeatedly requesting an explanation as to why the Claimant was to be removed and detained. Further it was submitted that the Claimant had an in-country right to appeal in so far as his leave to remain was concerned. In a letter dated May 2012 the Claimant indicated his intention to make an application for permission to apply for judicial review. The letter was in the following terms:

“Do take note that should the Secretary of State fail to (a) disclose to us before the close of business today 10 May 2012, the basis of her decision to detain our client, we will commence action on an application for a judicial review against the decision of the Secretary of State without further notice to yourselves (b) failure to release our client from detention by 12 Noon on 11 May 2012 and (c) failure by the Secretary of State to grant our client without further delay, an in-country right of appeal to the First tier Tribunal”.

On 11th May 2012, in the absence of any communication from the UKBA, the Claimant's solicitors invited the Defendant to deal with the matter pragmatically without the need for court action.

On 14th May 2012, still in the absence of any response from the Defendant, the Claimant served upon the Defendant a copy of relevant court documents. This included an application for mandamus in the High Court compelling the Defendant to release the Claimant from detention with immediate effect. The matter was placed before Mr Justice Mitting on 14th May 2012 and he ordered that the application for the immediate release of the Claimant from detention would be determined at an oral hearing on 16^th May 2012 on notice to the Defendant with a time estimate of 20 minutes.

On 16^th May 2012 Mr Justice Owen, having read the papers, and upon hearing from the Claimant, ordered that the application be granted and the Claimant be released from detention forthwith. It is recorded that the Defendant was neither present nor represented. It is further recorded that the matter occupied the time of the court for one minute from 10.30am to 10.31am. No reasons are given for the Judge's order.

There was, apparently, some delay in the release of the Claimant from detention. I was provided, by the Defendant, with an excerpt from the CID (Case Information Database), which is a database used by the Home Office to record critical events in an immigration matter. It is recorded on the database that the Complainant was released from custody at 17.00hrs on 17th May 2012. This was also the date that the Claimant stated was his release date in his application for judicial review and in the grounds. However, I note from his witness statement that the Claimant now claims that he was only released from detention late afternoon/late evening on 18^th May 2012, having remonstrated with detention centre staff that he was entitled to be released pursuant to a court order.

I turn now to consider the statutory and regulatory context.

Prior to the 27^th November 2008, when the new Tier 2 Immigration Rules were introduced, employers seeking to employ skilled workers from outside of the United Kingdom were required to obtain a work permit. The issuance of a permit did not entitle an individual to enter or remain within the UK. In addition an application was required by the prospective employee to obtain entry clearance/leave to enter or further leave to remain, as appropriate.

In the present case the rules in force governing entry clearance and leave to work as a work permit holder on 30^th September 2008 were contained within paragraphs 128-135 of the Immigration Rules (“the IR”). These provided, so far as relevant, as follows:

“Requirement for leave to enter the United Kingdom for work permit employment

128.

The requirements to be met by a person coming to the United Kingdom to seek or take employment (unless he is otherwise eligible for admission for employment under these Rules or is eligible for admission as a seaman under contract to join a ship due to leave British waters) are that he:

(i)

holds a valid Home Office work permit; and

(ii)

is not of an age which puts him outside the limits for employment; and

(iii)

is capable of undertaking the employment specified in the work permit; and

(iv)

does not intend to take employment except as specified in his work permit; and

(v)

is able to maintain and accommodate himself and any dependants adequately without recourse to publicly funds; and

(vi)

in the case of a person in possession of a work permit which is valid for a period of 12 months or less, intends to leave the United Kingdom at the end of his approved employment; and

(vii)

holds a valid United Kingdom entry clearance for entry in this capacity…

Leave to enter for work permit employment

129.

A person seeking leave to enter the United Kingdom for the purpose of work permit employment may be admitted for a period not exceeding the period of employment approved by the Home Office (as specified in his work permit), subject to a condition restricting him to that approved employment, provided he is able to produce to the Immigration Officer, on arrival, a valid United Kingdom entry clearance for entry in this capacity or, where entry clearance is not required, provided the Immigration Officer is satisfied that each of the requirements in paragraph 128(i) – (vi) is met.

Refusal of leave to enter for employment

130.

Leave to enter for the purpose of work permit employment is to be refused if a valid United Kingdom entry clearance for entry in this capacity is not produced to the Immigration Officer on arrival or, where entry clearance is not required, if the Immigration Officer is not satisfied that each of the requirements at paragraph 128(i) – (vi) is met”.

(emphasis added)

Prima facie, a person obtaining a work permit could be subjected to a condition restricting him to the “approved employment”. It follows, a fortiori, that it would be a breach of the condition to obtain any employment other than that which was “approved”.

However, during the period of currency of the Claimant’s work permit, the Home Office had issued guidance under the heading “Supplementary employment” which permitted persons holding a limited work permit to engage in certain types of additional employment. The guidance was in the following form:

“This page explains whether you are allowed to do any other work outside your normal working hours covered by your work permit.

You can undertake work if:

It is outside your normal working hours;

It is no more than 20 hours a week;

It is in the same profession and at the same professional level for which your work permit was issued; and

You are not employed by a recruitment agency, employment agency or similar business to provide personnel to a client”.

(Emphasis in original)

At this juncture it is necessary to note the existence of the judgment of the Supreme Court in Munir v SSHD [2012] UKSC 32 and its potential impact upon the legality of these guidelines. That case concerned the legality of Deportation Policy 5/96 entitled “Deportation in cases where there are children with long residence”. This policy had been introduced in 1996 and revised in 1999. It defined the policy to be applied when considering enforcement proceedings against parents with children who had been born in the United Kingdom and were aged 7 years or over or who had come to the United Kingdom at a young age and had accumulated 7 or more years of continuous residence. The case arose out of an alleged failure on the part of the Secretary of State to apply to the individual in question Deportation Policy 5/96, it having been withdrawn by the Minister. Neither the introduction nor the withdrawal of the policy had ever been laid before Parliament. The Supreme Court held that the power to make immigration rules under the Immigration Act 1971 derived from the Act itself. Section 3(2) of the 1971 Act imposed a duty upon the Secretary of State to lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practise to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required by the legislation to have leave to enter. A dispute arose as to whether or not the policy was lawful and a component part of the analysis focused upon whether the policy should, in the first place, have been laid before Parliament. The Supreme Court stated (ibid paragraph [45]):

“The question remains whether DP5/96 was a statement of practice within the meaning of section 3(2).

If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule “as to the practice to be followed” within the meaning of section 3(2) which should be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then in my view it does not fall within the scope of section 3(2). Such a statement does no more than say when a rule or statutory provision may be relaxed. I have referred to DP5/96 at para 9 above. It was not a statement of practice within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not have to be laid before Parliament”.

The gravamen of the judgment in Munir was that a concessionary policy statement which was drafted and operated as an absolute rule would be unlawful if and insofar as it had not been laid before Parliament. If, on the other hand, the concessionary policy statement merely identified circumstances which might, on the facts of a given case, lead to a rule or statutory provision being relaxed then it was not a statement of practice within the meaning of section 3(2) and did not have to be placed before Parliament. It would thereby be lawful. A similar stance was taken by the Supreme Court in relation to a code of practice adopted by the SSHD in R (Alvi) v SSHD [2012] UKSC 33.

In the present case the Supplementary Employment Guidelines as applicable at the relevant time were drafted as absolute exceptions to the rule against working other than in the “approved” work. The opening language is drafted in terms of permission (“you are allowed”). It then proceeds to state that “you can undertake work” if certain conditions are met. It is also clear that this permission would operate notwithstanding any condition of limitation contained within the work permit. As such it has the hallmarks of a concessionary policy statement which amounts to a rule as to the practice to be followed within the meaning of section 3(2) which, perforce, had to be laid before Parliament. But of course, it was not.

This brings me to the statutory powers contained within the Immigration and Asylum Act 1999 authorising the removal of the persons unlawfully remaining in the United Kingdom. Section 10 of the 1999 Act confers upon the Defendant a power administratively to remove certain persons. It is in the following terms:

“10.

Removal of certain persons unlawfully in the United Kingdom

E+W+S+N.I.(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if —

(a)

having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

[(b) he uses deception in seeking (whether successfully or not) leave to remain;]

[(ba) his indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be a refugee); or]

(c)

directions have been given for the removal, under this section, of a person to whose family he belongs.

…

(7)

In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the 1971 Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule.

(8)

When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him”.

(Emphasis added)

A person who has been made the subject of a section 10 decision has a right of appeal which can only be exercised out-of-country. Section 82 of the 2002 Act provides that where an immigration decision is made in respect of a person that person may appeal to the Tribunal (i.e. the First tier Tribunal or “FtT”). However section 92(1) of the same Act provides that a person may not appeal whilst he is in the United Kingdom unless his appeal is of a kind to which this section applies. However, a decision that a person is to be removed from the United Kingdom pursuant to section 10 of the 1999 Act is not an appeal which may be brought whilst a person is in the United Kingdom. It is, to the contrary, an appeal which may only be exercised from outside the United Kingdom.

In this regard it is right to record that had the Secretary of State, instead of issuing a decision pursuant to section 10, decided to adopt an immigration decision by way of curtailment of the Claimant’s leave to remain in the United Kingdom such that when the curtailment variation took effect the person had no remaining leave to remain, then the Claimant would have had an in-country right of appeal pursuant to section 92(2) in conjunction with section 82(2)(e) of the 2002 Act. I make this observation because it is part of the Claimant’s submission that the Defendant’s decision to adopt the section 10 procedure (as opposed to any other procedure) was designed to place the Claimant in the worst possible situation vis-à-vis appeals and that this was a matter which the court could take into consideration in its analysis of the grounds and as to the Courts discretion to entertain the judicial review.

Mr Zia Nasim, who appeared for the Claimant, attractively put forward a series of arguments on the Claimant’s behalf. They may be summarised as follows. First, by virtue of the decision of Mr Justice Owen of 16^th May 2012 granting the Claimant’s application to be released from detention the High Court had, in substance, already decided all of the issues in favour of the Claimant. Secondly, that in any event in so far as the matters were still live the fact that the Claimant had an out of country right of statutory appeal to the Tribunal did not preclude the bringing of an application for judicial review. Thirdly, that on a true construction of the conditions attached to the entry clearance document there were no conditions which had been breached by virtue of the Claimant’s conduct in obtaining employment as a security officer. Fourthly, if, (quod non) there was a breach of a condition on the part of the Claimant then the SSHD erred in law by failing to address herself to all the relevant circumstances and thereby failed properly to exercise the power to remove and/or detain which was consequent upon her a priori decision that there was a breach of conditions. Fifthly, that in any event the detention was unlawful both in and of itself and by virtue of the failure timeously to release the Claimant from detention following the order of Mr Justice Owen on 16^th May 2012. Sixthly, that the imposition of a restriction upon the Claimant preventing the Claimant from taking work following the section 10 decision was illegal.

He prefaced all of his arguments by submitting that the High Court had full jurisdiction to entertain this challenge as a judicial review.

I propose to address the threshold issue of whether the entire case has already been resolved by virtue of the Order of Owen J first. I then address the main disputed point of principle between the parties, namely whether this case should be permitted to proceed by way of judicial review or whether the Claimant should be left to his statutory appeal, however unattractive and difficult that might be. I then address the consequences of my judgment on this main issue for the rest of the case.

I can deal with this ground briefly. It is in my judgment clear that the order of Mr Justice Owen of 16^th May 2012 was strictly limited to the decision taken by the SSHD on 8^th May 2012 to detain the Claimant. It was no part of the application to the judge, and it was no part of his decision, that the substantive decision to remove was part of the lis between the parties which was before him. I have already set out above the fact that there were a number of decisions adopted by the Defendant, one of which was the detention decision. The proper analysis of this is that the Claimant sought interim relief requiring his release pending the determination of his application and any rights of appeal. Indeed this was explicitly set out in section 6 of the Claim Form under the heading “Details of remedy (including any interim remedy) being sought”. In this section the Claimant stated:

“An order to quash the defendant’s decision to detain the Claimant. An order granting the Claimant temporary release until his case is decided and any rights of appeal exercised”.

There can, in my judgment, be no sensible argument to the effect that by granting what was an application for interim relief pending the determination of the substantive challenge or appeal that this, in some way, determined the underlying merits or should otherwise be seen as an indication that the High Court could or should consider the substantive merits. This conclusion holds true notwithstanding that Mr Justice Owen, in arriving at his decision to release the Claimant from detention, necessarily will have examined the papers which will have included those relating to the substantive application for judicial review against the removal decision. It is also unclear whether the Judge was aware when he decided to accede to the application that there was a parallel power on the part of the Tribunal to grant bail to a person in detention.

A good deal of the argument in the present case focused upon whether the Claimant should be required to exercise his statutory right of appeal from outside the United Kingdom. For wholly understandable reasons this is a deeply unattractive proposition to the Claimant who presently resides in the United Kingdom with his wife and young child. He is concerned that if he has to return to Pakistan in order to pursue his appeal this would cause disruption to his family life and would, because of the distance involved, make the exercise of his right of appeal much more difficult. He submits that there is jurisdiction in the High Court to entertain a judicial review notwithstanding the existence of this parallel statutory appeal procedure. For the Secretary of State, Mr Andrew Byass has argued that Parliament has laid down, for good or for ill, a statutory appeal procedure which must be applied and which includes the possibility that appellants may exercise their rights from outside the United Kingdom. The fact that this may, in a particular case, lead to harsh circumstances is neither here nor there. It reflects the will of Parliament and the High Court should be extremely chary of entertaining collateral applications for judicial review, which have the effect of circumventing the statutory appeal procedure.

There is, at the present time, some potential conflict in the jurisprudence of the High Court and of the Upper Tribunal as to the principles which should govern when the jurisdiction of the High Court should be exercised.

It seems to me that this is a matter of some significance. I accordingly propose to set out the principal authorities in some detail and then attempt to draw together the relevant principles before, finally, considering the application of those principles to the facts of this case.

The starting point is Khawaja v Home Secretary [1984] 1 AC 74. In Khawaja the House of Lords was not essentially addressing the question when the High Court should decline jurisdiction because of the existence of a parallel appellate jurisdiction. However, the importance paid to judicial review as a device to protect and preserve fundamental rights bears very clear resonance for the issue of alternative remedies. The House of Lords established that because the consequences for a person subject to a section 10 decision were so draconian (removal and deprivation of liberty by reason of detention) then it was incumbent upon the High Court to exercise full jurisdiction to ensure that the facts (the “precedent facts”) which were relied upon by the immigration officers to warrant such extreme administrative action were properly established.

Lord Wilberforce stated (at paragraph [39]):

“An allegation that he has done so being of a serious character and involving issues of personal liberty, requires a corresponding degree of satisfaction as to the evidence. If the court is not satisfied with any part of the evidence it may remit the matter for reconsideration or itself receive further evidence. It should quash the detention order where the evidence was not such as the authorities should have relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularity”.

In similar vein Lord Scarman stated (at paragraph [57]):

“... we are here concerned with, the scope of judicial review of a power which inevitably infringes the liberty of those subjected to it. This consideration, if it be good, outweighs, in my judgment, any difficulties in the administration of immigration control to which the application of the principle might give rise”.

Lord Bridge stated, to the same end:

“106.

My Lords, we should, I submit, regard with extreme jealously any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on. The fact that, in the case we are considering, detention is preliminary and incidental to expulsion from the country in my view strengthens rather than weakens the case for a robust exercise of the judicial function in safeguarding the citizen's rights.

107.

So far as I know, no case before the decisions under the Act which we are presently considering has held imprisonment without trial by executive order to be justified by anything less than the plainest statutory language, with the sole exception of the majority decision of your Lordships' House in Liversidge v Anderson [1942] AC 206. No one needs to be reminded of the now celebrated dissenting speech of Lord Atkin in that case, nor of his withering condemnation of the process of writing into the statutory language there under consideration the words which were necessary to sustain the decision of the majority. Lord Atkin's dissent now has the approval of your Lordships' House in IRC v Rossminster Ltd [1980] AC 952.

108.

A person who has entered the United Kingdom with leave and who is detained under Schedule 2 paragraph 16(2) pending removal as an illegal entrant on the ground that he obtained leave to enter by fraud is entitled to challenge the action taken and proposed to be taken against him both by application for habeas corpus and by application for judicial review. On the view I take, paragraph 9 of Schedule 2 must be construed as meaning no more and no less than it says. There is no room for any implication qualifying the words "illegal entrant". From this it would follow that while, prima facie, the order for detention under paragraph 16(2) would be a sufficient return to the writ of habeas corpus, proof by the applicant that he had been granted leave to enter would shift the onus back to the immigration officer to prove that the leave had been obtained in contravention of section 26(1 )(c) of the Act, in other words by fraud”.

The House of Lords also commented upon the fact that the out-of-country appeal (to the adjudicator) afforded to the person concerned was a difficult one to exercise, albeit not “worthless”. For instance Lord Fraser stated:

“14.

It must be remembered that, in spite of the court's decision, affirming that of the immigration officer that the illegal immigrant be removed from this country, it will still be open to him to appeal under section 16 of the 1971 Act to an adjudicator against the decision to remove him. The fact that he is not entitled to appeal so long as he is in this country - section 16(2) - puts him at a serious disadvantage, but I do not think it is proper to regard the right of appeal as worthless. At least the possibility remains that there may be cases, rare perhaps, where an appeal to the adjudicator might still succeed”.

The implications of Khawaja were considered by the Court of Appeal in Secretary of State for the Home Department v R (Lim) [2007] EWCA Civ 733. The Appellant Secretary of State decided to remove Lim and his wife to Malaysia pursuant to section 10(1) of the 1999 Act upon the basis that Lim had failed to observe a condition of his leave to remain by working at a restaurant other than the one specified in his work permit and at which he had been given permission to work. Mr Lim had a right of appeal but only from abroad. Upon an application for judicial review prior to removal the court considered two preliminary matters. First, whether the Secretary of State was required to prove to an appropriately high standard that a condition attached to leave to remain had been breached or whether it merely had to be satisfied that the Secretary of State had reached a reasonable decision on that issue. Secondly, whether the court should refuse the application upon the basis that Mr Lim had an alternative remedy, namely the right of appeal from abroad.

It was argued that Khawaja (ibid) could and should be distinguished upon the basis that the case primarily concerned habeas corpus and detention, and allegation of deception being practised by the individual concerned. It was further contended that the existence of an alternative remedy (the out-of-country appeal to the adjudicator) had not seemingly been argued and in so far as it was referred to it had been dismissed as difficult to apply. Lord Justice Sedley rejected these arguments as relevant points of distinction:

“17.

The decision in Khawaja does not turn on either discretion or exceptionality. ...  Khawaja, far from being distinguishable ... enshrines a principle of law which supersedes any question of judicial discretion. The principle is that a decision taken without power is no decision at all.  Khawaja establishes that the non-existence of a precedent fact relating to immigration status can deprive the decision-maker of power to decide and render any purported decision void. The only, or at least the most appropriate, forum competent to decide the existence of precedent fact is the High Court, since the issue goes to jurisdiction. …

18.

This approach finds cogent support in Wade and Forsyth Administrative Law (9^th ed., 2004), 252-264. But whether something is in truth a precedent fact, absent which the decision-maker has no power to decide anything, or is one of the matters confided, at least initially, to the decision-maker himself, has to depend on the terms of the empowering provision, in this case s.10 of the 1999 Act.

19.

It is plain, in my judgment, that there are some material facts upon which the application of s.10 depends and which it cannot be for an immigration officer, subject only to an out-of-country appeal, to decide. The section permits removal only of "a person who is not a British citizen". If the person whom it proposed to remove claims to be a British citizen, there can be no doubt that he or she has an immediate right of recourse to the High Court to prevent removal. I am entirely unable to accept the Home Secretary's contention that an individual whose claim to be a British citizen is disbelieved by an immigration officer must accept removal to a country where he may have neither work nor family nor accommodation and conduct an appeal from there in which, by virtue of s.3(8) of the Immigration Act 1971, the onus lies on him to prove citizenship. The same, in my opinion, must be the case where identity is in issue: if the person whom it is proposed to remove denies being the person it is intended to remove, the High Court must have an unfettered power to decide the question. Both classes of issue, in my judgment, rank as precedent fact”.

The Court then considered whether the breach of a condition attached to entry clearance was to be considered as a precedent fact and hence sufficient to trigger the jurisdiction of the High Court:

“20.

Is the non-observance of a condition of leave to remain in the same class? It differs from citizenship and identity in that it is expressed in s.10 as a condition, rather than a precondition, of removal. But I do not think that this can count for a great deal: the drafter might just as easily have put the conditions the other way round, predicating the provision for removal on a breach of condition but requiring in addition the absence of British citizenship. A greater difficulty is that if Mr de Mello is right, every element of s.10 is a matter of precedent fact – not only identity and nationality but non-observance of a condition, overstaying, deception, revocation of indefinite leave and family membership. Even so, one has to ask: why not? Many of these issues are, or may involve questions which are, entirely apt for determination in a court of law: whether a revocation of leave was lawful, for example, or whether what was done amounted to deception, or whether a person "belongs" to the family of someone who is to be removed.

21.

This said, some s.10 issues, among them whether a foreign catering worker was working in the wrong restaurant, will be pure questions of fact. If Mr de Mello is to succeed on his fundamental argument, therefore, he has to establish that everything which s.10 lays down as making removal permissible is justiciable without regard to the s.84 appeal mechanism. I do not think that it is possible to do this without disregarding the manifest purpose of s.82 of the 2002 Act, since the effect would be that the right of appeal had effect only where the individual concerned chose not to raise his or her challenge by way of judicial review”.

The next question was: What - if it be the case that a breach of conditions was not to be treated without more as a precedent fact – was the test for the High Court to apply in determining whether it had jurisdiction in cases of alleged breach of condition? Determining the answer to this question involved a recognition that if every dispute over an immigration officer’s allegation that a condition had been breached amounted to a dispute about a precedent fact (and hence triggered judicial review) this would undermine the statutory appeal procedure:

“22.

The only coherent solution, it seems to me, is to continue to regard every question arising under s.10 as in principle both appealable and reviewable (see Swati, above, at 485G), but to calibrate the use of judicial review, through the exercise of judicial discretion, to the nature of the issue or issues. In this way – and, so far as I can see, in no other way – the High Court can remain loyal to what was decided in Khawaja by consistently retaining jurisdiction to determine the existence of preconditions of liability to removal, as well as other questions of law apt for the High Court's determination, but can also respect the policy of s.82 by declining to entertain challenges on issues more apt for the appeal mechanism, whatever its hardships”.

As to when the court would entertain a judicial review, “special or exceptional factors” would be required:

“24.

This argument depends upon the well-established principle, not confined to the immigration field, to which I referred earlier in this judgment: that where a statutory channel of appeal exists, in the absence of special or exceptional factors the High Court will refuse in the exercise of its discretion to entertain an application for judicial review. It is, I would add, important in the field of public law that the discretion of the judge as gatekeeper should be exercised with reasonable consistency and predictability, so that two individuals with similar claims should not find that one is heard and the other turned away.

25.

It is clear, accordingly, that a question such as whether a person is who the immigration officer thinks he or she is, or is a British citizen, ought – consistently with what was decided in Khawaja – to be determined by the High Court if application is duly made to it. It will ordinarily be wrong, in other words, to exercise the court's discretion adversely to the claimant in such cases. But there is no simple yardstick of how far into the other possible grounds of appeal this proposition penetrates. All that I think one can say is that there is no necessary or logical cut-off at issues of fact, but that such issues are rarely likely in practice to escape the adverse exercise of discretion indicated by cases such as Swati. Were it otherwise, the courts would be emptying Parliament's prescribed procedure of content”.

In R (on the application of RK (Nepal)) v SSHD [2009] EWCA Civ 359 the Claimants were citizens of Nepal who had arrived in the United Kingdom with leave to enter and remain as students. They were discovered to have been working for more than 20 hours per week in breach of conditions of their leave to enter and remain. The SSHD informed them that they would be removed pursuant to the exercise of powers under section 10(1) of the 1999 Act. Removal directions stated that there was no right of appeal whilst they remained in the United Kingdom. Permission to apply for judicial review was refused and the matter proceeded to the Court of Appeal as a renewed application for permission. That application was refused.

The Court commenced its analysis by referring to Lim (ibid). In paragraphs [33]–[35] Lord Justice Aikens stated as follows:

“33.

The importance of that decision lies in its emphasis on the appeal structure that Parliament has laid down in the 2002 Act with respect to various types of “immigration decision”. The courts must respect that framework, which is not open to challenge in the courts by way of judicial review unless there are “special or exceptional factors” at play. Therefore, except when such “special or exceptional factors” can successfully be invoked so as to give rise to a right to judicial review, the court must accept that an out of country right of appeal is regarded by Parliament as an adequate safeguard for those who are removed under section 10 of the 1999 Act.

34.

It is plain in this case that the immigration decisions made against the applicants were under section 10(1)(a) of the 1999 Act. That is what was stated in the form IS151Athat was served on each of the applicants. There is no issue concerning their non–British citizenship. It is also clear, as a matter of fact, that the reason for the removal from the UK in accordance with directions given by an immigration officer is that they have both obtained limited leave to enter and remain in the UK and that this leave was subject to conditions. They have broken those conditions in the manner I have already described. Those facts falls all squarely within section 10(1)(a) of the 1999 Act.

35.

It must follow from the Court of Appeal's decision in Lim that the court has to respect the fact that the “immigration decision” against the applicants that was stated to be made under section 10 of the 1999 Act was just that. Therefore, it must fall within section 82(2)(g) of the 2002 Act and so must only be capable of appeal out of country. I agree with Deputy High Court Judge Dove QC that a decision made under section 10(1) of the 1999 Act cannot fall within section 82(2)(e), when Parliament has stipulated that it falls within section 82(2)(g). It is, in my view, irrelevant that the SSHD might have made a decision to curtail the applicants’ leave under the Immigration Rules, thus bringing the case within section 82(2)(e). She did not do so and there is no challenge in these proceedings to the fact that the decision to remove was made under section 10”.

The Court of Appeal was unsympathetic to the argument that the SSHD might, otherwise, have adopted a decision to curtail the applicant’s leave under the IR thereby bringing the case within section 82(2)(e) and, accordingly, an in-country right of appeal. Lord Justice Aikens considered that this was “irrelevant”. It is, however, right to observe that he also noted that there was no challenge in the proceedings to the fact that the decision to remove was made pursuant to section 10 as opposed to some other, less onerous, procedure. But he nonetheless went on to observe that the SSHD was empowered to take a decision to remove pursuant to section 10 of the 1999 Act or by deploying the curtailment provisions of the IR and that the two routes were distinct and “must not be blurred” (ibid paragraph [36]). In circumstances where the section 10(1) procedure was utilised then that could only be challenged in the “very limited circumstances” adumbrated in Lim. If this was not possible then the applicant was confined to the out-of-country right of appeal.

In Anwar v SSHD [2010] EWCA Civ 1275 the Court of Appeal had cause to consider the application of the special and exceptional circumstances test in Lim (ibid). Although, it was not cited in judgment it is evident from the law reports that the judgment of the Court of Appeal in RK (Nepal) was also considered. In this case one of the appellants was a Namibian national, Ms Pengeyo, who had been enrolled in December 2006 as a dental nursing student at the London School of E-Commerce, an institute at the time recognised as bona fide by the Home Office. She was granted leave to remain for this purpose until January 2009. However, in 2008 the college was removed from the register of training and education providers because it had been found to be issuing bogus qualifications and providing no real training. Ms Pengeyo asked the Home Office for advice and was advised to find a new provider, which she did. Nonetheless, the SSHD adopted a decision to remove her from the United Kingdom upon the basis that she had obtained leave to remain by deception. It was subsequently found by the Tribunal that Ms Pengeyo had been acting honestly throughout and had been deceived by the college into departing with a substantial amount of money for tuition which was non-existent. Prior to the adoption of the adverse decision Ms Pengeyo received nothing which could remotely resemble a hearing, nor was she given notice of what was contemplated, from the Home Office. Each was presented “out of the blue” (ibid paragraph [6]) with a decision that they were guilty of obtaining leave by deception and that they were forthwith to leave the country. The decision was taken pursuant to section 10. The finding of deception constituted a criminal offence pursuant to section 24A of the Immigration Act 1971. In judicial review proceedings brought by Ms Pengeyo it was contended that she was limited to her out-of-country appellate route and that judicial review was thereby not open to her. Lord Justice Sedley rejected this submission:

“24.

In the judicial review proceedings brought by Ms Pengeyo…a challenge was made to the decision of the Home Secretary to use the deception route, enabling her effectively to stifle any appeal, rather than the variation route carrying a right of an in-country appeal. Judge Thornton QC, rightly in my judgment, granted permission to argue this. Had it been sought, permission would also have properly been granted to argue that the election of the Home Office, having used the deception route, to take the out-of-country point in order to stifle an appeal was a serious abuse of power. Once it is established that the point is good only when taken, to take it in order to prevent the exposure of a shameful decision – the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer – is without justiciable by way of judicial review”.

This brings me to the recent decision of Ms Helen Mountfield QC sitting as a Deputy High Court Judge in R (on the application of Hom Bahadur Thapa) v SSHD [2014] EWHC 659 (Admin). The case concerned the position of a Nepalese national who came to this country in 1999 but was faced with administrative removal pursuant to section 10(1)(a) of the 1999 Act. A preliminary issue was raised by the Defendant as to whether this was a proper case for the High Court to exercise its judicial review jurisdiction given that there was an apt and obviously more suitable alternative remedy in an out-of-country appeal to the FtT. The Judge considered the question of the existence of alternative remedies and concluded that there was no alternative remedy which ought to preclude the exercise of the Administrative Court’s jurisdiction. The judge identified three particular reasons.

First, the central issues arising were not appropriate for the Tribunal since they focussed upon the merits and legality of the decision under section 10(1)(a) of the 1999 Act not the (a priori) question whether the decision to adopt this, rather than some other, or no, enforcement action was lawful and appropriate:

“41.

The challenge in this case is not to a question of law or fact which would also be apt for consideration before the First Tier Tribunal. The focus of a decision of the FTT would be the merits and legality of the decision under section 10(1)(a) IAA, not to the question of whether the decision to adopt this (rather than some other, or no) enforcement action was lawful and appropriate”.

The judge identified this as a pivotal issue because one of the grounds advanced was that the SSHD had erred in failing to deal with the matter by the curtailment route which triggered an in-country right of appeal pursuant to section 82(2)(e) of the 2002 Act:

“The questions in this case are about how the immigration officer went about exercising her discretion as to what if any enforcement action to take; what if any steps were required by way of giving of reasons in circumstances where it was decided to take some such action; and whether it was rational to do so in the circumstances given apparent policies to the contrary” (ibid paragraph [42]).

The Judge was influenced by the fact that there were obvious procedural and costs difficulties associated with out-of-country appeals in terms of marshalling factual evidence on contested matters, or seeking access to a video link, and that is was obviously disruptive to a person such as the claimant who was studying in the United Kingdom.

The second reason given by the Judge was that, in her view, the statutory procedure could not provide a suitable alternative remedy given the nature of the challenge. By the time the matter came before the Tribunal it would be too late for the Tribunal to provide an adequate remedy if it concluded that the removal decision was unlawful (for example because of a failure to provide adequate reasons). By that time, she concluded, as a matter of practicality the possibility of an in-country right of appeal would already have been lost. She thus concluded that where the objection was that the SSHD had acted unlawfully or unfairly in exercising a discretion as to choice of enforcement mechanism and had thereby unfairly consigned an appellant to the less favourable of two distinct appeal routes the appellate body could not itself have provided suitable alternative safeguard against the putative wrong.

Thirdly, she concluded that the grounds raised points of considerable wider importance as to the fair and appropriate application of discretion. She concluded that the “wider public interest in clarity” in relation to the point was also a factor justified in the retention of this matter in the High Court:

“45.

I note the observations of the High Court in R v Huntingdon District Council ex parte Cowan [1984] 1 WLR 501 at 507:

“... the court should always ask itself whether the remedy that is sought in court or the alternative remedy is the most effective and convenient in all the circumstances, not merely for the [claimant], but in the public interest”.

The proliferation of alternative remedies and statutory tribunals in the intervening thirty years does not detract from the relevance of those words”.

Having decided that the Court had jurisdiction the judge then proceeded to hear the substantive claim for judicial review and, upon the facts of the case, granted the claim.

Very shortly after the handing down of the judgment in Thapa (ibid) the Upper Tribunal, presided over by Mr Justice Bean, handed down judgment in R (on the application of Mohamed Bilal Jan) v SSHD (Section 10 removal) IJR [2014] UKUT 00265 (IAC). In this judgment the Upper Tribunal considered the reasoning in Thapa and inparagraphs [35]-[43] expressed disagreement with that reasoning. The analysis of the Tribunal may be summarised as follows.

First, the jurisdiction of the Tribunal was sufficiently broad to enable all such matters as had arisen in Thapa to be properly encompassed within the jurisdiction of the Tribunal. The Tribunal had jurisdiction to determine whether the decision was in accordance with the law which included an obligation upon the Tribunal to determine whether the decision had been made fairly (ibid paragraph [36]). This did not give to the Tribunal a jurisdiction to depart from the immigration rules where the judge considered that such a course was appropriate or to turn mandatory factors into discretionary ones. Fairness was in this context essentially procedural (ibid paragraph [39]). Nonetheless, the Tribunal considered that the Deputy Judge was wrong to take the view that the facts in Thapa raised issues falling outside the jurisdiction of the First tier Tribunal and, further, there was nothing to suggest that such issues could properly be regarded as special or exceptional and it was “artificial to say that there [was] a distinct prior decision which can be challenged separately from the decision to remove” (ibid paragraph [40]). The Upper Tribunal pointed out that it had a sufficiently broad set of powers to address satisfactorily the sorts of issues which would arise in section 10 cases: See paragraphs [38] - [40].

Secondly, the Tribunal rejected the suggestion that the statutory procedure could not provide a suitable alternative remedy given the nature of the challenge as by the time the matter was before the First tier Tribunal in an out-of-country appeal it would be too late for the Tribunal to apply an adequate remedy if it decided that inadequate reasons had been given for rejecting the in-country appeal route. However, the Tribunal observed this logic applied equally to an appeal upon the basis that the applicant was not in fact working. No rational distinction could be drawn between the challenge to whether a discretion was exercised or whether the respondent wrongly concluded that the applicant was working. The Upper Tribunal concluded that the views adopted by the Deputy Judge were, in any event, not open to her given the Court of Appeal decisions (to which I have made reference above).

Thirdly, the Tribunal rejected the Judge’s third reason which was that the amended grounds raised points of considerable importance. As to this the Tribunal made the (obvious) point that these were precisely the sorts of points which the First-tier Tribunal and the Upper Tribunal routinely considered: See paragraph [42]. The Upper Tribunal also made the point that the Tribunal now hears a very wide array of cases and, is now the principal forum for all judicial reviews in relation to immigration and asylum.

I should state at this point that I agree with the reasoning and logic in Jan since I consider that this better reflects the analysis and guidance of the appellate courts.

I turn lastly to a case not concerned with immigration or asylum. During the course of argument in the present case my attention was drawn to the judgment of the Court of Appeal in R (on the application of Christopher Willford) v Financial Service Authority [2013] EWCA Civ 677 which addresses the question of the appropriateness of failing to exploit alternative remedies in a non-immigration or asylum context. There are of course numerous authorities outside of the field of immigration and asylum where this issue has been addressed. This case was relied upon in the present case, in effect, as an illustration of the continued vigour of the principle that alternative remedies should be exhausted first and as to the reluctance of the courts to permit judicial review to be deployed as a means of circumventing statutory appeal procedures. It was also relied upon to demonstrate that the authorities in the field of immigration and asylum were consistent with broader principles of public law.

This case concerns a claim for judicial review brought in the midst of the currency of a regulatory investigation of the type that is quite commonplace in financial and economic regulatory regimes. The facts of the case can be summarised shortly. In that case the Financial Service Authority (“FSA”) brought an appeal against the order of Silber J quashing a decision notice issued against Mr Willford who was then the Group Finance Director of Bradford & Bingley Plc under the provisions of section 67 of the Financial Services & Markets Act 2000. In March 2010 the Enforcement Division of the FSA issued a preliminary investigation report relating to Mr Willford in which it found, provisionally, that he had failed to comply with certain principles reflecting conduct expected of persons in the status and capacity of Mr Willford. He was given an opportunity to respond. The Enforcement Division thereafter sent to him a Warning Notice that he would be subject to a negative decision and the possibility of a substantial financial penalty. Thereafter an oral hearing was convened in which Mr Willford attended, made representations, and answered questions put to him by the chairman of the committee. In due course a decision notice was issued to him which included the imposition of a financial penalty of £100,000. Mr Willford, thereafter, had a right of statutory appeal to a specialist tribunal. However, instead he sought to apply for judicial review. Permission was granted and a decision was taken in favour of Mr Willford upon the basis that inadequate reasons had been given for the adverse decision and that a referral of the matter to the specialist tribunal did not provide a suitable remedy. The question arose as to whether this was, in principle, correct. The Court of Appeal reviewed the jurisprudence. It was accepted that the High Court had a discretion but where there was an alternative remedy available to a claimant the court would not ordinarily allow that claimant to proceed by way of judicial review save in exceptional circumstances, which would generally be because the alternative remedy was for some reason “clearly unsatisfactory” (ibid paragraph [20]). In the instant case the High Court had concluded that the jurisdiction of the Upper Tribunal was to consider the matter afresh and it therefore had no power to require the FSA to give reasons for its decisions and no power to remedy the particular breach of duty complained of. Having considered the relevant authorities Lord Justice Moore-Bick reiterated that it was necessary to guard against granting judicial review in cases where there was an alternative appeal remedy merely because it might be more effective and convenient to do so. He observed that allowing a claim for judicial review to proceed in circumstances where there existed a statutory procedure for contesting the decision risked “…undermining the will of Parliament” (ibid paragraph [23]). At paragraph [37] Lord Justice Moore-Bick observed that the statutory tribunal was granted a different jurisdiction to that at the High Court but this was not a reason for permitting an application to proceed by way of judicial review. In paragraph [38] he stated:

“In my view the judge did err in law in this case because he failed properly to identify the legislative intention behind the regulatory scheme embodied in the Act and so failed to appreciate that there was available to Mr. Willford an alternative remedy that was a more appropriate means of challenging the Decision Notice”.

In this section I have set out to summarise the main principles arising from the case law. This summary reflects my clear view that the reasoning of the Upper Tribunal in Jan is to be preferred to that of the High Court in Thapa:

I turn now to consider whether (i) the present case involves an issue of precedent fact and/or (ii) whether there are any exceptional or special circumstances arising upon the facts of the present case which would justify me in assuming a judicial review jurisdiction rather than refusing to entertain the case upon the basis that an alternative remedy exists.

I have come to the clear conclusion that this is not a case of precedent fact; nor are there any exceptional or special circumstances justifying the High Court in assuming jurisdiction. This is for the following reasons.

Precedent fact issues: First, there are no specific precedent facts which need to be resolved or are of such a “nature” as to justify the High Court assuming jurisdiction. There is no dispute but that the Claimant is not a British citizen and there is no Khawaja type issue as to identity. This is not hence a traditional precedent fact case. In Lim it was contemplated that certain types of allegation that a condition had been breached might amount to breaches of precedent fact but that a court had to examine the nature of the alleged breach to see whether it was apt for the High Court to assume jurisdiction over the challenge. In my view, and prior to the consideration of any other special or exceptional considerations arising in the case, the following considerations are relevant. First, there is in this case no material dispute as to the underlying facts; even if one takes the Claimant’s legal case at its highest there is no dispute about the basic facts. The issue is at core one of construction of the condition and the inferences that are to be drawn from common grounds facts. The SSHD contends that howsoever one construes the condition the Claimant is in breach. There is a breach: (i) because on the face of the condition attached to the entry clearance the Claimant had no right to perform any work outside of the “approved” work as an account executive with a named employer and as such the Claimant was clearly in breach of his condition upon an admitted basis when he engaged in work in the security field; but (ii) even if this is wrong and the Claimant had a right to work beyond the approved work (because of the Supplementary employment dispensation) then he still, again upon an admitted basis, breached his entry clearance condition as he failed to perform extra work within the limit set out in the dispensation. Either way, submits the SSHD, upon the facts admitted by the Claimant, he is in breach of condition. Hence, even if one construes the scope of the permission to work in accordance with the Claimant’s submission there are still no disputes about precedent facts which, even arguably, could warrant the High Court exercising judicial review functions over this case. The second point concerns the strength of the Defendant’s argument (based upon these common ground facts). As to this in my view the Defendant’s submissions on breach of condition are strong. I am conscious that the Claimant has an argument to the effect that the work that he engaged in was approved by the UKBA (via the SIA procedure) and that he hence engaged in “authorised” work. This and any other argument the Claimant seeks to advance will ultimately have to be resolved by the Tribunal. Nonetheless, the twin points that the basic facts are not materially in dispute and that the Defendant’s submissions on breach of condition are prima facie strong are factors I take into account when considering whether to exercise the High Court jurisdiction to hear this case as a judicial review. These points strengthen my conclusion that this case should not be treated as one of precedent fact or in some way not “apt” from the Tribunal.

Arguments as a whole: Secondly, the disputed issues as a whole arising in the present case (and not just those which might be classified as precedent fact) are main-stream and raise questions surrounding the decision of the SSHD to issue a section 10 removal decision. The Tribunal is perfectly capable of addressing these points. The Tribunal has a merits jurisdiction. It can examine the facts and form a view. It has to be remembered that the Tribunal system as it exists today is very far removed from the limited appellate structure (to the adjudicator) which existed at the time of Khawaja. Further, the Tribunal now has the preponderant part of the judicial review jurisdiction that was hitherto exercised by the High Court and is increasingly well equipped to entertain public law types of argument. The issues arising in the present case include: (i) the true construction of the conditions attached to the entry clearance vignette; (ii) whether on the facts the Claimant was in breach thereof; (iii) whether (assuming that he was in breach) the SSHD acted lawfully in resorting to the section 10 procedure with the consequence that the Claimant was denied an in-country right of appeal, as opposed to the curtailment procedure; (iv) whether the decision is unlawful for want of proper reasons or (v) whether the decision is unlawful for some other reason. None of these matters are in my view sui generis or otherwise such as to warrant the High Court assuming jurisdiction over them, as opposed to the Tribunal. They are not “special” or “exceptional” and they are all “apt” to be determined by the Tribunal.

Personal circumstances of Claimant / the nature of the error: Thirdly, there are the personal circumstances of the Claimant to consider which the Claimant relies upon. In particular there is the innocent nature of the mistake that he made and his reliance upon the SIA clearance procedure which it is submitted make this case special or exceptional. His evidence, which is not disputed by the Defendant, is that he took advice from his employer as to his performing security work and he also sought SIA clearance which, he says, involved the SIA liaising with UKBA. He says he acted in good faith and reasonably. To this, Mr Byass for the SSHD submits that whilst none of this is challenged, at the end of the day, it is the responsibility of each individual person to ensure that he or she adheres to the rules. Acting erroneously but with good intention is not enough and does not, in any event, make the case exceptional. I agree with this analysis and it seems to me that there is an underlying point of principle which arises. In Ahmed v SSHD [2014] 300 EWHC (Admin) I had to determine whether any credit should be accorded to a Claimant who made what was argued to be a genuine and inadvertent error. I held:

“42.

Inadvertent error: Ms Van Overdijk, for the SSHD did not suggest that the correctness of the Claimants explanation of inadvertent error was something that this Court had to rule upon. She submitted that regardless of whether that explanation was true or false, the position of the SSHD was still the logical and correct one. This was, as set out in the Decision, that it was the responsibility of all applicants to ensure that they abided by the rules. The SSHD could not possibly be responsible for prompting applicants or cajoling them into action. The onus lay squarely on each applicant to ensure that they knew what the rules were. Although she did not address the merits of the Claimants position she did not hide her scepticism pointing out that in any event on his own evidence the Claimant had learned of his error in January 2012 (see paragraph [3] above) but it was not until June 2012 that he got around to making an application to remain. In the interim he made efforts to seek the requisite English language skills certificate but he failed to obtain certification from an approved source and Ms van Overdijk referred to the well know problems that the SSHD confronts in the form of bogus educational establishments providing certificates that are unreliable as evidence of linguistic proficiency. I agree with the statement of principle which Ms van Overdijk articulated and which is reflected in paragraph [21] of the Decision. It is not for the SSHD to prompt applicants; the responsibility for complying with the rules lies with applicants themselves. I would actually go one step further. It seems to me that in principle it cannot be right that a person can acquire additional rights through inadvertence relative to a person who is diligent and who observes the rules. A rule which rewarded dilatoriness or forgetfulness would create a powerful if not overwhelming perverse incentive on applicants to suffer selective amnesia or carelessness. The fact that the Claimant overstayed his permission by a very lengthy period of time, whether through inadvertence or otherwise, is not a factor which can either (at least normally in the absence of some fairly exceptional circumstances – which do not arise here) weigh in his favour or be neutral; it is a fact against the applicant”.

In my view the same principle applies here. The responsibility in law on the Claimant was to ensure that his conduct was four-square within the rules. The rules were not hidden from him. He could have taken legal advice before embarking upon his secondary employment in the security field. I can sympathise with the mistake that the Claimant made; but in law this cannot serve to place the Claimant in an improved situation. At one point I wondered whether the Claimant’s argument amounted to a submission that he enjoyed or possessed a legitimate expectation that the work he engaged in was authorised based upon the premise that his position had been explicitly approved of by the UKBA. But, upon the evidence, this would not have been viable and Mr Nasim did not put his client’s case this highly. The Claimant’s assumptions were not based upon any personal knowledge as to how the SIA liaised with the UKBA, or whether the SIA had provided relevant and accurate information to the UKBA, or as to what the UKBA’s response was. It could not even be said with 100% certainty that SIA had, in actual fact, liaised with the UKBA. Further, if, for the sake of argument, the Claimant had been able to raise a proper case of legitimate expectations then a further question would have arisen which is whether even this would have amounted to special or exceptional circumstances. In my view it might (arguably) be a matter that moved somewhat towards the realms of exceptionality but, it also has to be remembered, that this is an argument that could quite properly be raised before the Tribunal, if necessary upon improved factual evidence from the Claimant. For this reason an argument based upon legitimate expectations is not one which, at first blush, should not be treated as perfectly “apt” for the Tribunal. The short point is that nothing in the personal circumstances of the Claimant warrants the case being treated as special or exceptional.

The hardship of pursuing an out-of-country appeal: Fourthly, the fact that there might be disruption and potential hardship to the Claimant in being able to advance an appeal out-of-country is prima facie irrelevant. The decision to limit certain persons to out-of-country appeals is a clear policy decision that Parliament had taken. Whether or not a judge feels disquiet about this is not to the point. For a court to assume judicial review jurisdiction simply because of unease about Parliament’s decision would be to undermine Parliamentary sovereignty. The judgment of the Court of Appeal in SS Nigeria v SSHD [2013] EWCA Civ 550 (per Laws LJ) paragraphs [48]-[52]makes the important point that where a policy presumption (in that case in favour of the deportation of those with a criminal record) is laid down in an Act of Parliament this is itself an important consideration militating against the exercise of a broad discretion on the part of the High Court.Laws LJ referred to the fact that: “... the subject-matter of the legislature's policy lies in the field of moral and political judgment, as to which the first and natural arbiter of the extent to which it represents a "pressing social need" is what I have called the elected arm of government: and especially the primary legislature, whose Acts are the primary democratic voice” (paragraph [52]). In this case the conferral upon addressees of section 10 decisions of an out-of-country right of appeal is a clear manifestation of a Parliamentary intent and even though the Act does not state that this is the sole and exclusive route to challenge, it is a quintessentially political intent that should nonetheless be given significant weight in the balancing exercise that this Court has to undertake in order to determine whether to assume jurisdiction. In my view the High Court should in this context treat a decision according only an out-of-country appeal as special or exceptional only if facts emerged which showed, whether systemically or in relation to an individual case, that an out-of-country appeal implied a materially inferior right of access to the Tribunal than an in-country right of appeal. If that were the case then the High Court might well conclude that there was a violation of the fundamental right of access to a court that needed to be protected by the exercise of its own jurisdiction. If such a situation did arise it could readily be categorised as “special” or “exceptional”. But as matters stand there is no evidence to this effect in this case and the ability to conduct an out-of-country appeal today, using modern technology, is far greater than in was in 1984, when Khawaja was decided.

Claimant acting in good faith: Fifthly, the fact that the Claimant acted in good faith is true but irrelevant. The question for the consideration of the SSHD was whether the Claimant breached the conditions attached to his entry clearance. The 1999 Act provides for removal to be carried out under the administrative arrangements contained in section 10 for which there is no requirement that the person must knowingly have overstayed or otherwise knowingly failed to observe a condition of their leave. The existence of good faith does not make a case special or exceptional. To the extent that this might be relevant it is a factor that can be raised before the Tribunal.

Importance of issues arising: Sixthly, I do not agree with the Judge in Thapa that issues of this sort raise questions of such importance that they should be determined by the High Court. The Tribunal system deploys highly specialist judges, including High Court judges, who routinely address important points of law, policy and practice. This is their allotted daily bread. The Supreme Court has already held in R (on the application of Cart) v Upper Tribunal [2011] UKSC 28 that the High Court can exercise, in limited circumstances, a supervisory role vis-à-vis the Upper Tribunal and this includes where serious points of law arise. This is a further indication that the High Court should not pre-empt the Tribunal and seek to determine cases simply because the issue arising has the allure of seeming to be “important”.

For all these reasons I am clear in my conclusion that on the facts of this case the High Court should refuse to entertain the application for judicial review. This is upon the basis that an alternative remedy exists by way of out-of-country appeal to the First tier Tribunal and that this is the proper avenue for challenging the Defendant’s decision.

Given the conclusion I have arrived at I also have to consider whether I should, nonetheless, proceed to address the merits of the substantive grounds raised by the Claimant. I should say that I have been tempted to set out my views on the issues arising. This is because I heard full and helpful argument upon all of the grounds by two experienced and knowledgeable counsel and the dictates of pragmatism might suggest that it was sensible to resolve the case now, once and for all. I note also that Mr Justice Coulson in Ali Zahid v SSHD [20013] EWHC 4290 (Admin) decided, in an analogous case involving a section 10 challenge, that on the facts of the case before him this was a case which should not be heard by the High Court but he then went on to address the merits, in the alternative (lest he were wrong on jurisdiction).

However, having reflected upon this, it seems to me that I should resist this temptation. The logic of the decision that I have arrived at is that the proper forum for the determination of all these disputes is the Tribunal. The Tribunal has a discrete jurisdiction and slightly different powers to those of the High Court. If the Tribunal is the right forum in which this matter should be resolved I should respect the integrity of the appellate structure and leave the merits to the Tribunal.

If I were to decide the merits, out of an abundance of caution, then this would risk creating a situation whereby future Claimants would seek judicial review and argue, if they lost on the jurisdiction point, that there was a growing practice in such cases that the High Court nonetheless proceeded to decide the merits. It thus seems to me that the principle should trump pragmatism. I therefore decline to address the merits.

I have also considered whether I should address the grounds raised by the Claimant which, at least to some degree, might be said to be freestanding. This is the case in relation to the issue of detention and the claim that the restriction on the Claimant from seeking employment following the section 10 decision in 2012 was unlawful.

As to the issue of detention, the Claimant seeks a ruling that his detention was unlawful. He seeks in particular a declaration that he was illegally detained. In both his amended grounds and skeleton argument the Claimant puts the argument in the following way. First, the detention was unlawful since the basis upon which the section 10 decision was made was wrong in law. Secondly, even if the Secretary of State had a power to detain the SSHD’s own Enforcement Instructions and Guidance (Chapter 55) states that there is a presumption in favour of temporary admission or release and wherever possible alternatives to detention are used. It is submitted that the decision to detain was inconsistent with the Defendant’s policy as to how the statutory power to detain would be exercised. Thirdly, it is submitted that, in any event, even if there was a legal basis for the Claimant’s detention the continuing detention following the order of Mr Justice Owen on 16^th May 2012 was unlawful. Fourthly, it is said that no adequate reasons were given for the Claimant’s detention.

There are, in my judgment, real difficulties with my dealing with this issue, at least at this stage. First, an obviously relevant consideration as to whether detention was unlawful will be the legality of the underlying section 10 decision. If that was unlawful this almost certainly provides significant support to the Claimant that his subsequent detention was illegal. However, the specific reasoning and basis of the Tribunal’s ruling upon the legality of the underlying decision will be important. Mr Nasim, on behalf of the Claimant, submitted to me that a finding that the underlying section 10 decision was illegal would automatically lead to a conclusion that the detention was unlawful. This would itself support my view that the issues were so intertwined that the Tribunal’s decision on the merits of the removal decision should be determined first. However, the law is not quite as straight forward as this. In SSHD v Draga [2012] EWCA Civ 842 the Court of Appeal had to address the question whether detention would always be unlawful if the, a priori, removal decision was found to be unlawful. Lord Justice Sullivan said that this was not the case. He stated as follows:

“58.

I have not found this an easy question to answer. As a matter of first impression, the answer to the question is obvious: the unlawful decisions under sections 3(5)(a) and 5(1) did bear upon and were relevant to the decision to detain: without the prior decisions there could have been no decision to detain. But this approach does not pay sufficient regard to the statutory scheme as a whole. Making a deportation order is a two-stage process. First the Secretary of State must serve notice of the decision to make a deportation order. The notice explains that there is a right of appeal under section 82(1) against the decision, and sets out of the grounds of appeal under section 84(1). Those grounds are not limited to the ground that removal in consequence of the decision would be unlawful under the Refugee Convention or the ECHR, they enable the person served with the notice to challenge the lawfulness of the notice on the basis of any breach of a rule of public law: “that the decision is otherwise not in accordance with the law”… If there is an appeal the Secretary of State may not proceed to the second stage of the process – the making of the deportation order - until the appeal has been finally determined…”.

At paragraph [60] Lord Justice Sullivan stated:

“60.

In the great majority of cases, the mere fact that an appeal has been allowed under section 82(1) will not mean that the decision to make the deportation order was unlawful in a way which was relevant to the decision to detain. An appeal may be allowed because, e.g. the Tribunal takes a different view as to the proportionality of an interference with an appellant’s rights under article 8 of the ECHR, or because, with the benefit of further evidence, the Tribunal reaches a different conclusion as to the risk of persecution on removal, the application of a particular immigration rule, or the manner in which a discretion should have been exercised under the rules. There will, however, be some cases where appeals are allowed by the Tribunal on the basis that there was a breach of a rule of public law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the detention unlawful. Examples of such breaches are mentioned in Ullah: where the Tribunal concludes that the appellant was not a person liable to deportation, or the decision to make a deportation order was made in bad faith… It must, however, be acknowledged that it is difficult to identify any principled basis for distinguishing between those public law errors which will render the decision to detain unlawful and those which will not”.

It follows that a decision by the Tribunal as to the legality of the underlying removal decision may have a material impact upon the legality of the subsequent detention; but will not necessarily do so. It seems to me that, in such circumstances, to take a decision now upon the question of detention without having benefit of a reasoned decision of the Tribunal on the question of the legality of the removal decision would be to risk putting the cart before the horse. I am fortified in this conclusion by virtue of the fact that the Claimant was detained for only about 7 or possibly 8 days and was released pursuant to the order of Owen J. The issue is of historical interest only and it is unclear whether the Claimant has a serious interest in pursuing damages. There is no material harm or prejudice in delaying a determination on this issue.

A similar conclusion arises in relation to the argument about employment restrictions. If the removal decision is unlawful then this would provide powerful support for the argument that the employment restrictions were unlawful. But this might turn upon the specific reasons for the decision being found to be unlawful. For instance if the decision was set aside upon a purely procedural ground (e.g. inadequate reasons) then the only remedy granted might be a remittal requiring the SSHD to re-take the decision and this time give proper reasons. If such reasons were then given this might not lead to the conclusion that the employment restriction was unjustified.

In these circumstances I do not propose to resolve any of the merits of the present claim. They are either matters which should properly be adjudicated upon by the Tribunal or they are matters which it is premature to express any view about in the absence of a reasoned judgment upon the basic merits of the challenge.

There is one final consideration that influences my view. If the Claimant pursues his out-of-country appeal to the Tribunal then he might seek to adduce new evidence and new arguments. I cannot rule out that his case might improve before the Tribunal relative to the position before the High Court.

Before setting out the conclusion to this claim I would make one final observation. This case, like a number of others which have led to similar litigation, involves what might be seen as a relatively minor infraction of the rules (assuming the SSHD is correct). The Tribunal in Jan pointed out that the SSHD has four options open to her in cases such as this: to ignore the breach; to issue a warning; to proceed down the curtailment route; and last and most draconian, to issue a section 10 decision. Here the SSHD has adopted the latter most extreme option for what appears to have been an innocent and not terribly serious mistake: The comments in the analogous case of Lim of Lord Justice Sedley at paragraph [29] bear some scrutiny.

In conclusion I hold that the High Court does not have jurisdiction to determine this claim for judicial review. The Claimant is limited to his out-of-country statutory appeal. The claim therefore necessarily fails.

This conclusion does not preclude any challenge which is freestanding of the appellate Tribunal route (detention / employment restriction) as to which my conclusion is simply that the claim is premature whilst an appeal to the Tribunal is extant.