R (Lim and Siew) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Sedley |
| Judgment Date | 25 July 2007 |
| Neutral Citation | [2007] EWCA Civ 773 |
| Docket Number | Case No: C4/2006/2652 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2007 |
[2007] EWCA Civ 773
Rt Hon Sir Mark Potter, President of the Family Division
Lord Justice Sedley and
Lord Justice Wilson
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
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
Judgement
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.
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.
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.
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.
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.
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.
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.
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”.
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.
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.
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.
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.
It is well established, as the judge reminded himself, that judicial review is a remedy of last resort, so that where a suitable...
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