COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE LLOYD JONES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE WILSON
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|THE QUEEN ON THE APPLICATION OF LIM & ANOTHER
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Mr R de Mello & Ms G Brown (instructed by Messrs Christine Lee & Co) for the Respondent
Hearing date: Tuesday 26 June 2007
Crown Copyright ©
Lord Justice Sedley :
(1) Whether on this claim for judicial review the Defendant must prove on the balance of probabilities that the first Claimant breached the conditions of his leave.
(2) The relevance, if any, to the first question of (out of country) rights of appeal to the Asylum and Immigration Tribunal. In particular, whether the court should decline to entertain this claim on the ground that the Claimants have an alternative remedy in the form of a right of appeal out of country.
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(ba) his indefinite leave to enter or remain has been revoked under s.76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be a refugee)
(c) directions have been given for the removal, under this section, of a person to whose family he belongs.
"that removal of the appellant would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
In the present case an attempt to take advantage of this provision was blocked when the Home Secretary certified as clearly unfounded a human rights claim made on Mr Lim's behalf. Nevertheless, where one element of a claim creates an entitlement to an in-country appeal, any other elements fall to be decided in-country as well. For the rest, all removal appeals have to be conducted from abroad.
47. Having regard to the issues which would arise on an appeal, I consider that in the particular circumstances of this case an out of country appeal in which Mr. Lim was unable to participate by giving evidence in person would not provide him with a fair hearing. Although cross examination of witnesses is not usually a feature of applications for judicial review in the Administrative Court I consider that in this case it will be appropriate for witnesses to be called and cross examined on the issue which I consider to be one of precedent fact.
48. During the hearing before me, consideration was given to the possibility that Mr. Lim might be able to give evidence on an out of country appeal via a video link. Although the rules of procedure of the Asylum and Immigration Tribunal permit the giving of evidence via video link, it was far from clear that such a facility would be available to Mr. Lim if he were left to pursue his statutory appeal from abroad.
49. In the course of his submissions, Mr. Kovats, while disclaiming any intention to define what is an exceptional case, suggested that it will be a case which has particular features that the immigration appeals system is not equipped to address. I consider this to be such a case.
50. Accordingly, I conclude that this application for judicial review should be allowed to proceed. I do not come to this conclusion because judicial review may be regarded as more effective and convenient. I am mindful of the authorities that that would not be a sufficient basis on which to allow an application for judicial review to proceed where there exists an alternative remedy by way of statutory appeal. I come to this conclusion because I consider that the circumstances of this case are exceptional in that the alternative remedy does not provide fair, adequate or proportionate protection against the risk that the immigration officer has acted without jurisdiction.
Lord Justice Wilson: