R Kumar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Judge COE |
| Judgment Date | 04 March 2014 |
| Neutral Citation | [2014] EWHC 861 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/13422/2012 |
| Date | 04 March 2014 |
[2014] EWHC 861 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Her Honour Judge COE QC
(Sitting as a Judge of the High Court)
CO/13422/2012
Miss J Smeaton (instructed by Charles Simmons Solicitors) appeared on behalf of the Claimant
Mr R Kohli (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
A preliminary issue has arisen in this case, which is currently listed for judicial review, on behalf of the Claimant, Mr Kumar. Permission for this hearing was given by Mr Michael Fordham QC and I have an agreed note of the hearing before him. It is clear from that note, as I read it out, that:
"… if the Claimant establishes that there was a departure from the guidance, even if that involved consideration of disputed issues of fact, that is principally a matter for judicial review. I accept that analysis is properly arguable. I also accept it is arguable here that there is non-compliance and departure from Chapter 50.6 and other guidance and in my judgment it is not sufficient for the Secretary of State to say she concluded that the criteria in Chapter 50.6 were met and objectively if necessary, even if that involves considering issues of fact."
The preliminary issue which has arisen was as to whether or not in granting permission on that occasion the learned Deputy High Court Judge in fact decided that judicial review was the appropriate way forward for the Claimant, in other words the appropriate remedy, and excluded the Claimant's out-of-country right of appeal.
The argument on this preliminary point on behalf of the Claimant is: that I should ignore the alternative remedy of out-of-country right of appeal; that that matter has been resolved; and I should accept jurisdiction and deal with this by way of judicial review.
The Defendant says that the matter was not resolved and it could not possibly be res judicata, as it is phrased, because it would be inappropriate for the court's jurisdiction to be decided, in...
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