Khan, R (on the application of) v Secretary of State for the Home Department
2014
ADMINISTRATIVE COURT
UK
CORAM
- MR JUSTICE GREEN
Areas of Law
- Immigration Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
Azmat Rauf Khan, a Pakistani national, challenged the decisions of the UK Secretary of State for the Home Department regarding his removal, detention, and employment restrictions under section 10 of the Immigration and Asylum Act 1999. Despite having an out-of-country appeal right, he sought judicial review. The High Court ruled that it did not have jurisdiction and that Khan must use the out-of-country statutory appeal process.
Judgment
Mr Justice Green :
A: Introduction: The issue
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.
B: Facts
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 ident