Neutral Citation Number: [2007] EWCA Civ 773
Case No: C4/2006/2652
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE LLOYD JONES
[2006] EWHC 3004 (ADMIN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/07/2007
Before :

RT HON SIR MARK POTTER, PRESIDENT OF THE FAMILY DIVISION

LORD JUSTICE SEDLEY 
and
LORD JUSTICE WILSON
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Between :

	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Appellant	
	- and -		
	THE QUEEN ON THE APPLICATION OF LIM & ANOTHER	Respondent	
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr S Kovats (instructed by The Treasury Solicitors) for the Appellant
Mr R de Mello & Ms G Brown (instructed by Messrs Christine Lee & Co) for the Respondent

Hearing date: Tuesday 26 June 2007 
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Judgement
Lord Justice Sedley : 

1.	Mr Yee Kong Lim and his wife Mrs Yet Kiow Siew are Malaysian citizens who entered this country lawfully, the former in order to work, the latter as his dependant. Although they have not lived here continuously since the end of December 2003, when they first entered as visitors, the only dates and facts which matter for present purposes are these. On 13 August 2004 the Home Secretary granted Mr Lim leave to remain in the United Kingdom for the next 5 years, with permission to work “as authorised by the Secretary of State”.  By then Mr Lim had been granted a work permit specifying his permitted place of work as the Lucky Star Restaurant, Norwich. 
2.	On 31 August 2005 immigration officers found Mr Lim and Mrs Siew in a different Norwich restaurant, the Riverbank restaurant. The Riverbank restaurant was in the same ownership as the Lucky Star, and Mrs Siew was lawfully employed there. A week later, on 7 September, they were arrested with others at that restaurant. At interview Mr Lim stated that he had not been working at the Riverbank on either occasion but on each occasion had gone there to collect food for use in the Lucky Star. If this was correct, his status was unaffected. 
3.	But the immigration officers disbelieved him, and removal directions were set for dawn on 9 September for both Mr Lim and, since her status depended on his, Mrs Siew. This remarkable burst of urgency in a system celebrated for dilatoriness meant that a massive and costly effort had to be deployed, including an application to the duty High Court judge to halt the removal and to an immigration judge for bail, in order to protect Mr Lim’s and Mrs Siew’s position. The effort succeeded to the extent that in November 2005 Mr Lim was granted temporary admission and permitted to continue to work at the Lucky Star Restaurant. That remains the position while the present issues are argued out. 
4.	Judicial review was sought of the decisions of immigration officers (a) that Mr Lim was in breach of condition, (b) that he and his wife were accordingly to be removed and (c) that they were meanwhile to be held without bail. The third of these decisions is not for the present in issue. But both the first and the second are, because it is the respondents’ submission that even if there was a legitimately reached decision that Mr Lim had been working at the Riverside restaurant, it was not lawful by removing him to deny him an in-country appeal against the decision. 
5.	The Administrative Court (Bean J) gave permission to apply for judicial review but directed the determination of two preliminary issues: 
(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.
6.	In a reserved judgment [2006] EWHC 3004 (Admin) delivered on 30 November 2006 Lloyd Jones J held that the legality of the removal directions depended on the existence of a precedent fact which was capable of being determined in judicial review proceedings, and that judicial review lay in the present case because, exceptionally, the alternative remedy of an out-of-country appeal did not provide adequate protection against the possibility that removal had been unlawful. He gave the Home Secretary permission to appeal to this court and stayed the judicial review proceedings meanwhile. 
7.	At the centre of this appeal is s.10(1) of the Immigration and Asylum Act 1999: 
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.

8.	For the Home Secretary, Steven Kovats accepts that, if the claim for judicial review is competent, it will require the court to determine the existence or non-existence of the precedent fact. I would add only that, where Lloyd Jones J spoke (§22) of the court having to decide “whether the decision was in accordance with the evidence”, a phrase possibly open to misunderstanding, Mr Kovats’ skeleton argument accepts, in my judgment correctly, that this means that “the court would need to determine for itself whether Mr Lim had breached the conditions of his leave”. 
9.	The appeal therefore turns on the propriety of using judicial review to challenge the factual basis of a removal direction against which an out-of-country appeal lies to the AIT. We are no longer concerned with that aspect of the judgment below which addressed – and rejected - the argument that the court’s only concern was with the rationality of the immigration officer’s decision. The precedent fact which would have to be established in this case, by virtue of s.10(1), is that, having only a limited leave to remain, Mr Lim did not observe the condition which was attached to it that he could work only at the Lucky Star restaurant in  Norwich. In relation to Mrs Siew, the relevant precedent facts would be that she was a member of Mr Lim’s family (a fact not in dispute) and that directions had been given for his removal, a fact depending on the validity of the directions. 
10.	A right of appeal to the AIT against a removal decision under s.10 of the 1999 Act is provided by s.82 of the Nationality, Immigration and Asylum Act 2002. Section 84 sets out the grounds on which such an appeal may be brought, one of which – that the decision is not in accordance with the law – is accepted by both parties as including an issue such as the present one.  I have to say, even so, that I find this a very odd way of describing a dispute about a fact, but Mr Kovats and Mr de Mello both recognise that, unless removal on a false factual basis is treated as not in accordance with the law, there will be no way of appealing on something which plainly requires a right of appeal. I am prepared to assume for the purposes of this case that this is so; but I would observe that if it were not so, judicial review would be the only recourse. 

11.	Section 92 then provides that a person may not appeal to the AIT while still in the United Kingdom unless the appeal is on grounds spelt out in s.84(1)(g): 
“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.
12.	It is relevant to note what is involved in the difference between in-country and out-of-country appeals. It is not simply that the latter have to be conducted by proxy unless the appellant happens to have access to videolink facilities in his or her home country and enough money to make use of them. It is that, if the appeal succeeds on the merits, the appellant has to return to the UK (assuming that leave has not by then expired) at his or her own expense. The only exception to this is that, if the AIT holds the removal to have been not merely mistaken but unlawful, the appellant, having been removed at public expense, will be brought back at public expense.  

13.	It is well established, as the judge reminded himself, that judicial review is a remedy of last resort, so that where a suitable statutory appeal is available the court will exercise its discretion in all but exceptional cases by declining to entertain an application for judicial review: see R v IRC ex parte Preston [1985] AC 835, R v Chief Constable of the Merseyside Police, ex parte Calveley [1986] 1 QB 424, R v Home Secretary, ex p Swati [1986] 1 WLR 477, R (Sivasubramanian) v Wandsworth County Court [2003] 2 WLR 475. The judge took the view that this case was exceptional. He adopted the ground, which Mr Kovats submits can be the only relevant ground in a case like this one, that the immigration appeals system was not equipped to address the particular features of the case. The judge held that “the alternative remedy does not provide fair, adequate or proportionate protection”. 
14.	Mr Kovats submits that there is no proper foundation for such a finding. The rules permit an out-of-country appellant to be represented before the AIT, to cross-examine the immigration officers and to give his own evidence by videolink. The AIT’s statistics show that the differential between successful in-country and out-of-country appeals is not great: 18% in the former case, 14% in the latter. The undoubted hardship of meanwhile losing one’s job, income and home is an inevitable incident of the system laid down by statute and, while distressing, on no view unusual. Neither aspect of the case makes it exceptional. 
15.	For the respondent, Rambert de Mello founds upon the decision of the House of Lords in Khawaja v Home Secretary [1984] 1 AC 74, a decision which antedates those mentioned above. Departing from their decision in Zamir [1980] AC 930 that the courts were limited to deciding whether there was material on which the immigration officer could rationally have come to his decision, their Lordships held that whether the appellant was liable to removal as an illegal entrant was a precedent fact of which the court was the judge, and which it was for the Home Secretary to establish to a high degree of probability. This conclusion was reached notwithstanding the existence of a right of out-of-country appeal against removal (Immigration Act 1971, s.16). 
16.	Mr Kovats submits that Khawaja can and should be distinguished on several grounds from the present case. In summary, these are that, possibly because the case principally concerned detention and habeas corpus, the existence of an alternative remedy does not seem to have been argued, and so far as it was referred to (for example by Lord Bridge) was dismissed as valueless; and that both law and procedure have changed since 1983, the latter to the advantage of out-of-country appellants, the former admittedly to their detriment. 
17.	The decision in Khawaja does not turn on either discretion or exceptionality. No doubt for this reason, Mr de Mello’s justification of the decision of Lloyd Jones J is more radical than the judge’s own reasons. It is that Khawaja, far from being distinguishable as Mr Kovats contends it is, 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. It is therefore cases such as Swati and Sivasubramanian, which did not concern precedent or jurisdictional fact, which have to be distinguished. 
18.	This approach finds cogent support in Wade and Forsyth Administrative Law (9th 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. 
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. 
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. 
23.	It follows that the judge’s approach to the case was correct. It also follows that Mr de Mello is unable to locate the present issue in the Khawaja category or to elevate it to a triable question of law. But it does not follow that it falls outside the jurisdiction of the High Court, and Mr Kovats does not suggest that it does. His case is that there was no sufficient reason for the judge to exercise his discretion, as he did, in favour of judicial review and against the ordinary process of appeal from abroad. 
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. 
26.	Was the judge then entitled to hold that this case was sufficiently exceptional to justify a departure from the norm? Mr Kovats in opening recognised that he faced a difficult task in seeking to overset a reasoned exercise of discretion. This is how Lloyd Jones J explained it: 
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.

27.	It seems to me inescapable that the judge was influenced – as anyone of common sense and humanity would be – by the colossal overreaction to what, even if proved, was a venial breach of condition. By at least keeping the issue in-country he was doing something to mitigate it. But, while I am in entire sympathy with his motive, I cannot find anything in his reasons sufficient to support his conclusion. This was precisely the kind of issue for which the legislation, for better or for worse, prescribed an out-of-country appeal. 
28.	I can see no alternative in this situation to allowing the Home Secretary’s appeal. The consequence will be that the answer to the last of the preliminary questions is that the court should have declined to entertain the claim on the ground that the claimants had an effective remedy in the form of a right of appeal out of country. 
29.	Having gone this far, however, I would go further. Nothing obliges the Home Secretary to remove every non-British citizen who commits an infraction, however inconsequential, of his or her conditions of leave to remain, especially where the occurrence of the infraction is itself in issue. Mr Kovats has told us that there is nothing to stop Mr Lim asking for and being granted a modest enlargement of the establishments in which he is permitted to work. Indeed he told us that there was no reason why such an enlargement should not have been granted in the first place had it been applied for by his prospective employer prior to his entry. To remove him and his wife – who is alleged to have done nothing wrong at all – at public expense to Malaysia, from where he must try to establish his innocence as best he can, and from where they will almost certainly have to return, if at all, at their own cost, is both an expenditure of resources and a source of hardship which it seems impossible to justify. I would not expect the Home Secretary’s success in this appeal to result in any resumption of the removal of Mr Lim and Mrs Siew. 

Lord Justice Wilson:
30.	I agree.

The President:
31.	I also agree.