JR/05792/2018
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The decision
UTIJR6
JR/5792/2018
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
MONIKA [S]
Applicant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE MURRAY
(sitting as a Judge of the Upper Tribunal
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties' respective representatives Mr Edward Nicholson, of Counsel, on behalf of the Applicant and Mr Zane Malik, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 22 May 2019.
Decision: the application for judicial review is refused
Mr Justice Murray:
1. This is an application by Mrs Monika [S] for judicial review of the decision made by the Secretary of State for the Home Department on 17 May 2018 in which he refused her application for leave to remain as a Tier 2 (General) Migrant ("the Principal Decision") and of his decision made on 22 June 2018 in which the Secretary of State maintained his earlier decision following administrative review ("the Review Decision" and, together with the Principal Decision, "the Decisions").
2. On 17 May 2018 the Secretary of State also refused the applications for leave to remain of Mrs [S]'s husband, Mr Krishna [S], and of their son, Master [KS], and on 22 June 2018 he maintained those decisions following administrative review. Those applications for leave to remain are dependent on Mrs [S]'s application for leave to remain, which was refused by the Principal Decision and confirmed by the Review Decision.
Grant of permission for judicial review
3. Mrs [S] was originally refused permission to apply for judicial review on 7 January 2019 by Upper Tribunal Judge Perkins on his review of the documents.
4. Following the renewal of the application for permission at an oral hearing on 27 February 2019, Upper Tribunal Judge McWilliam, by order dated 1 March 2019, granted Mrs [S] limited permission to apply for judicial review as follows:
"Considering the decision (and administrative review) it is arguable that the decision maker decided to refuse a human rights application and thus it is arguable that under the statutory regime the applicant has a right of appeal subject to certification. I grant permission on the basis that the decision is arguably irrational in stating that the applicant does not have a right of appeal." (emphasis in original)
5. UTJ McWilliam went on, in her order dated 1 March 2019, to say the following:
"However, judicial review is a remedy of last resort and it is expected that the applicant endeavours to make an application to appeal the decision in the FTT at the earliest possible opportunity because these proceedings may be rendered academic."
Claimant's application to adjourn the judicial review
6. At the beginning of the substantive judicial review hearing before me, Mr Edward Nicholson, of Counsel, on behalf of Mrs [S] made an application to adjourn the proceedings on the basis that Mrs [S] had lodged an appeal with the First-Tier Tribunal (Immigration and Asylum Chamber) ("FTT") on 13 March 2019, but due to a difficulty with the payment of the fee it had taken some time for the application to appeal to be processed. The FTT had therefore not yet considered whether it has jurisdiction to entertain the appeal. Mr Nicholson proposed that this judicial review hearing be adjourned until the FTT had determined jurisdiction. He submitted that it was possible to read the sentence of UTJ McWilliam that I have set out at [5] above as meaning that the filing by Mrs [S] with the FTT of an application to appeal the Decisions and the FTT's consideration of whether it is has jurisdiction to entertain the appeal was a pre-condition to the permission granted for this judicial review.
7. Mr Zane Malik, of Counsel, for the Secretary of State opposed the application for adjournment on the basis that there was no advance notice of it, and it was now too late. Both parties had come prepared for the substantive judicial review, and it would not be consistent with the overriding objective to adjourn.
8. I refused the application to adjourn on the basis that it had come too late, costs had been incurred by both parties in preparing for the substantive judicial review hearing and it would not be consistent with the overriding objective for those costs to be thrown away when it was possible to proceed. I was also of the view that UTJ McWilliam's sentence quoted at [5] above did not amount to a pre-condition to the judicial review but merely the statement of an expectation.
Background
9. Mrs [S] is a national of Nepal, as are her husband and son. Mrs [S] was born on 16 September 1990. Mr [S] was born on 6 August 1986. Their son, [K], was born on 2 November 2013 in London and is currently 5 years old.
10. Mrs [S] entered the United Kingdom on 2 October 2009 with entry clearance as a Tier 4 (General) Student. Mr [S] entered the United Kingdom on the same date with entry clearance as a Tier 4 (General) Dependant. In each case, their leave to enter the United Kingdom was valid until 31 July 2011. Mrs [S] was granted further leave to remain as a Tier 4 (General) Student on 8 February 2012, valid until 30 April 2014. On 25 April 2014 Mrs [S] was granted leave to remain as a Tier 2 (General) Migrant, valid until 14 May 2017. Mrs [S]'s husband was on each occasion granted leave to remain as Mrs [S]'s dependant.
11. On 3 April 2017 Mrs [S] applied for leave to remain as a Tier 2 (General) Migrant. As I have already noted, the Secretary of State refused the application in the Principal Decision and confirmed that in the Review Decision. On 17 May 2018 the Secretary refused the related applications of Mrs [S]'s dependants, her husband and son, for further leave to remain and on 22 June 2018 confirmed those refusals after administrative review.
12. In the Principal Decision the Secretary of State relied for his refusal of the application on his having revoked the Tier 2 Sponsor licence held by Mrs [S]'s Tier 2 Sponsor.
13. After an exchange of correspondence under the pre-action protocol between solicitors for Mrs [S] and the of Secretary of State, Mrs [S] brought this claim for judicial review of the Principal Decision and the Review Decision. As already noted, following the initial refusal of UTJ Perkins on 7 January 2019, UTJ McWilliam granted permission on the limited basis set out at [4]-[5] above.
14. As I have already noted, on 13 March 2019 Mrs [S] lodged an appeal against the Decisions with the FTT. The FTT has not yet considered whether it has jurisdiction to entertain the appeal. I also note that on 8 July 2018 Mrs [S] had made an application for leave to remain outside the immigration Rules and on 18 March 2019 she varied that to an application with the Secretary of State for leave to remain on the basis of family and private life relying on Article 8 of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 ("the ECHR"). That claim is presently pending.
15. It is common ground that at the time of the Principal Decision, Mrs [S] had not made a human rights claim in the required form in compliance with the procedure stipulated by the Secretary of State for human rights claims. Mrs [S], however, maintains that it is clear from the Principal Decision that in her case the Secretary of State considered a human rights claim based on Article 8 of the ECHR and refused it. In support of this proposition, Mrs [S] relies on a portion of the following paragraph from the Principal Decision:
"Consideration has also been given to section 55 of the Borders, Citizenship and Immigration Act 2009 (Duty regarding the welfare of children). The duty to have regard to the need to safeguard and promote the welfare of children requires the UK Border Agency to consider the effect [on] any children of a decision to refuse leave, or remove, against the need to maintain the integrity of immigration control. Our aim is always to carry out enforcement of the Immigration Rules with the minimum possible interference with a family's private life, and in particular to enable a family to maintain continuity of care and development of the children in ways that are compatible with the immigration laws. In the particular circumstances of your case, it has been concluded that the need to maintain the integrity of the immigration laws outweighs the possible effect on you that might result from you and your children having to re-establish family life outside the United Kingdom."
16. I have reproduced the full paragraph above and put into italics the portion on which Mrs [S] relies. The same wording was included in the letter dated 17 May 2018 sent by the Secretary of State to Mrs [S]'s husband refusing his application for leave to remain as a dependant of Mrs [S]. Similar wording, appropriately adapted, was included in the letter dated 17 May 2018 sent by the Secretary of State to their son refusing his application for further leave to remain as a dependant of Mrs [S].
The issues
17. UTJ McWilliam granted permission on the basis that the Principal Decision "is arguably irrational in stating that the applicant does not have a right of appeal". I note, however, that neither the Principal Decision, nor the Review Decision, nor the Secretary of State's response dated 2 August 2018 to Mrs [S]'s pre-action protocol letter includes an express statement by the Secretary of State that Mrs [S] does not have a right of appeal. The argument, therefore, must be that the Secretary of State made an implicit statement that no right of appeal arises, by virtue of his denial that he had decided to refuse a human rights claim.
18. The Secretary of State's alleged refusal is said to have been set out in the italicised wording I have quoted at [15] above. His denial that this is a refusal of a human rights claim is the subject of this judicial review challenge. I have a slight difficulty with this formulation of the issue in that the Secretary of State did not deny that he has refused a human rights claim in the Principal Decision, which is challenged by this judicial review. The parties, however, have proceeded on this basis, and it is clear that the Secretary of State's position now is that he did not consider, much less refuse, a human rights claim in the Principal Decision.
19. One issue raised by this judicial review application is, therefore, whether in the Principal Decision the Secretary of State determined a human rights claim made by Mrs [S], giving rise to a right of appeal in the absence of certification by the Secretary of State, and, if so, whether his denial that he has done so is irrational.
20. The other issue, which is raised by the Secretary of State as part of his defence of the claim, is whether Mrs [S] has an alternative remedy such that this judicial review claim should be dismissed on that basis. I will deal with this issue first.
Alternative remedy
21. In my view, Mrs [S] has an alternative remedy, namely, to file an appeal with the FTT, as she has, in fact, done since she filed this claim for judicial review, as I have already noted. The FTT clearly has jurisdiction to determine whether it has jurisdiction in this case, although it had not done so as at the date of the hearing before me. In order to determine whether it has jurisdiction, the FTT will need to determine whether, having regard to the facts of this case, Mrs [S] has made a human rights claim giving rise to a right of appeal. Accordingly, this claim is premature. It is a well-established principle that administrative review is a remedy of last resort. Mrs [S]'s claim must therefore be dismissed.
22. Mr Nicholson for Mrs [S] submitted that the FTT does not have the power to consider the question of rationality for which permission was granted by UTJ McWilliam, and there is therefore no remedy available in the FTT for the irrationality of the Secretary of State's denial that it has refused a human rights claim that is an alternative to this judicial review claim.
23. In my view, there is no force in that submission. If the FTT determines that it has jurisdiction on the basis that a right of appeal arises, Mrs [S] will have, in substance, the remedy that she is seeking.
24. As noted by the Court of Appeal in the case of Khan v Secretary of State for the Home Department [2017] EWCA Civ 424 at [9] (Lord Justice Underhill):
"It is of course well-established that where there is a statutory right of appeal against a decision it is only where 'special or exceptional factors' are in play that the court will allow a challenge to that decision to proceed by way of judicial review rather than by the route provided by statute: see, most recently, R (Mehmood) v Secretary of State for the Home Department [20151 EWCA Civ 744, [2016] 1 WLR 461, per Beatson LJ at para. 49 (p. 475G)."
25. In my view, there are no special or exceptional factors in this case that justify departing from the normal principle.
Did the Secretary of State refuse a human rights claim and, if so, irrationally deny having done so?
26. Having decided that there is an alternative remedy, bearing in mind that administrative review is a remedy of last resort, it is not necessary for me to consider the question of whether the Secretary of State has irrationally refused a human rights claim. Indeed, if I were to address, even in part, the various submissions made by the parties in relation to this, there would be a risk of prejudice to the FTT's consideration of its jurisdiction in this matter and, if it decides that it is able to exercise jurisdiction, to its consideration of Mrs [S]'s appeal. Accordingly, I decline to do so.
27. I am reinforced in this conclusion by the Court of Appeal's decision in the case of Khan. Khan was an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") dismissing an application for judicial review on the basis that there was an alternative remedy by way of appeal to the FTT. Lord Justice Underhill said the following at [19]:
"My starting-point is that it is both natural and more convenient that where an issue arises as to the jurisdiction of a statutory tribunal that issue should be determined in the first instance by the tribunal itself, which can then proceed to consider the substantive issues if it decides that it has jurisdiction. It is inherently more wasteful for proceedings to be brought in different courts or tribunals. I do not see the force of Mr Pennington-Benton's suggested distinction between cases where jurisdiction is in issue and other 'alternative remedy' cases. Once it is accepted, as he does accept, that the tribunal is in principle entitled to determine whether it has jurisdiction, I see no reason, in this context, for treating that question differently from any question which it is empowered to decide. I accept that if one or other party is dissatisfied with the FTT's decision on jurisdiction it may then have to be decided by the UT, whether on appeal (where there was a hearing in the FTT) or by way of judicial review (where there was not), in which case the parties will have been put to the additional time and trouble of arguing the case twice rather than once. But that is not peculiar to cases of the present kind. It is an inevitable consequence of the application of the alternative remedy principle in the tribunal field and has not been treated in other cases as sufficient reason for allowing the statutory jurisdiction to be undermined."
Order
28. I order, therefore, that the judicial review application be dismissed.
Permission to appeal to the Court of Appeal
29. I refuse permission to appeal to the Court of Appeal on the basis that an appeal would have no real prospect of success and there is no other compelling reason for the Court of Appeal to hear an appeal in this case.
Costs
30. I have dismissed this judicial review application on the basis that there is an alternative remedy, an issue raised by the Respondent after permission had been granted on another ground. I note, however, that the Applicant obtained permission on only one out of four Grounds, and that she was obliged to review her position on receipt of the Respondent's Detailed Grounds of Defence, which raised the alternative remedy point by reference to the clear authority of Khan. Accordingly, in my view, the normal rule as to payment of should apply. I order that Applicant pay the Respondent's costs of this application for judicial review, to be assessed if not agreed.
Signed:
Mr Justice Murray (sitting as a Judge of the Upper Tribunal)
Dated: 10 June 2019
Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a question law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
UTIJR15
JR/5792/2018
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review
Notice of Decision/Order/Directions
The Queen on the application of
MONIKA [S]
Applicant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Decision and Directions of Mr Justice Murray (sitting as a Judge of the Upper Tribunal)
Having considered all documents lodged by the parties and having heard the parties' respective representatives, Mr Edward Nicholson, of Counsel, on behalf of the Applicant and Mr Zane Malik, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 22 May 2019.
(1) The applicant's claim for judicial review is dismissed.
(2) Permission to appeal to the Court of Appeal is refused.
(3) The applicant is to pay the respondents costs of the application for judicial review, to be assessed if not agreed.
Signed:
Mr Justice Murray (sitting as a Judge of the Upper Tribunal)
Dated: 10 June 2019
Sent to the Applicant, Respondent and any interested party / the Applicants, Respondents and any interested party's solicitors on (date):
Home Office Ref:
JR/5792/2018
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
MONIKA [S]
Applicant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE MURRAY
(sitting as a Judge of the Upper Tribunal
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties' respective representatives Mr Edward Nicholson, of Counsel, on behalf of the Applicant and Mr Zane Malik, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 22 May 2019.
Decision: the application for judicial review is refused
Mr Justice Murray:
1. This is an application by Mrs Monika [S] for judicial review of the decision made by the Secretary of State for the Home Department on 17 May 2018 in which he refused her application for leave to remain as a Tier 2 (General) Migrant ("the Principal Decision") and of his decision made on 22 June 2018 in which the Secretary of State maintained his earlier decision following administrative review ("the Review Decision" and, together with the Principal Decision, "the Decisions").
2. On 17 May 2018 the Secretary of State also refused the applications for leave to remain of Mrs [S]'s husband, Mr Krishna [S], and of their son, Master [KS], and on 22 June 2018 he maintained those decisions following administrative review. Those applications for leave to remain are dependent on Mrs [S]'s application for leave to remain, which was refused by the Principal Decision and confirmed by the Review Decision.
Grant of permission for judicial review
3. Mrs [S] was originally refused permission to apply for judicial review on 7 January 2019 by Upper Tribunal Judge Perkins on his review of the documents.
4. Following the renewal of the application for permission at an oral hearing on 27 February 2019, Upper Tribunal Judge McWilliam, by order dated 1 March 2019, granted Mrs [S] limited permission to apply for judicial review as follows:
"Considering the decision (and administrative review) it is arguable that the decision maker decided to refuse a human rights application and thus it is arguable that under the statutory regime the applicant has a right of appeal subject to certification. I grant permission on the basis that the decision is arguably irrational in stating that the applicant does not have a right of appeal." (emphasis in original)
5. UTJ McWilliam went on, in her order dated 1 March 2019, to say the following:
"However, judicial review is a remedy of last resort and it is expected that the applicant endeavours to make an application to appeal the decision in the FTT at the earliest possible opportunity because these proceedings may be rendered academic."
Claimant's application to adjourn the judicial review
6. At the beginning of the substantive judicial review hearing before me, Mr Edward Nicholson, of Counsel, on behalf of Mrs [S] made an application to adjourn the proceedings on the basis that Mrs [S] had lodged an appeal with the First-Tier Tribunal (Immigration and Asylum Chamber) ("FTT") on 13 March 2019, but due to a difficulty with the payment of the fee it had taken some time for the application to appeal to be processed. The FTT had therefore not yet considered whether it has jurisdiction to entertain the appeal. Mr Nicholson proposed that this judicial review hearing be adjourned until the FTT had determined jurisdiction. He submitted that it was possible to read the sentence of UTJ McWilliam that I have set out at [5] above as meaning that the filing by Mrs [S] with the FTT of an application to appeal the Decisions and the FTT's consideration of whether it is has jurisdiction to entertain the appeal was a pre-condition to the permission granted for this judicial review.
7. Mr Zane Malik, of Counsel, for the Secretary of State opposed the application for adjournment on the basis that there was no advance notice of it, and it was now too late. Both parties had come prepared for the substantive judicial review, and it would not be consistent with the overriding objective to adjourn.
8. I refused the application to adjourn on the basis that it had come too late, costs had been incurred by both parties in preparing for the substantive judicial review hearing and it would not be consistent with the overriding objective for those costs to be thrown away when it was possible to proceed. I was also of the view that UTJ McWilliam's sentence quoted at [5] above did not amount to a pre-condition to the judicial review but merely the statement of an expectation.
Background
9. Mrs [S] is a national of Nepal, as are her husband and son. Mrs [S] was born on 16 September 1990. Mr [S] was born on 6 August 1986. Their son, [K], was born on 2 November 2013 in London and is currently 5 years old.
10. Mrs [S] entered the United Kingdom on 2 October 2009 with entry clearance as a Tier 4 (General) Student. Mr [S] entered the United Kingdom on the same date with entry clearance as a Tier 4 (General) Dependant. In each case, their leave to enter the United Kingdom was valid until 31 July 2011. Mrs [S] was granted further leave to remain as a Tier 4 (General) Student on 8 February 2012, valid until 30 April 2014. On 25 April 2014 Mrs [S] was granted leave to remain as a Tier 2 (General) Migrant, valid until 14 May 2017. Mrs [S]'s husband was on each occasion granted leave to remain as Mrs [S]'s dependant.
11. On 3 April 2017 Mrs [S] applied for leave to remain as a Tier 2 (General) Migrant. As I have already noted, the Secretary of State refused the application in the Principal Decision and confirmed that in the Review Decision. On 17 May 2018 the Secretary refused the related applications of Mrs [S]'s dependants, her husband and son, for further leave to remain and on 22 June 2018 confirmed those refusals after administrative review.
12. In the Principal Decision the Secretary of State relied for his refusal of the application on his having revoked the Tier 2 Sponsor licence held by Mrs [S]'s Tier 2 Sponsor.
13. After an exchange of correspondence under the pre-action protocol between solicitors for Mrs [S] and the of Secretary of State, Mrs [S] brought this claim for judicial review of the Principal Decision and the Review Decision. As already noted, following the initial refusal of UTJ Perkins on 7 January 2019, UTJ McWilliam granted permission on the limited basis set out at [4]-[5] above.
14. As I have already noted, on 13 March 2019 Mrs [S] lodged an appeal against the Decisions with the FTT. The FTT has not yet considered whether it has jurisdiction to entertain the appeal. I also note that on 8 July 2018 Mrs [S] had made an application for leave to remain outside the immigration Rules and on 18 March 2019 she varied that to an application with the Secretary of State for leave to remain on the basis of family and private life relying on Article 8 of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 ("the ECHR"). That claim is presently pending.
15. It is common ground that at the time of the Principal Decision, Mrs [S] had not made a human rights claim in the required form in compliance with the procedure stipulated by the Secretary of State for human rights claims. Mrs [S], however, maintains that it is clear from the Principal Decision that in her case the Secretary of State considered a human rights claim based on Article 8 of the ECHR and refused it. In support of this proposition, Mrs [S] relies on a portion of the following paragraph from the Principal Decision:
"Consideration has also been given to section 55 of the Borders, Citizenship and Immigration Act 2009 (Duty regarding the welfare of children). The duty to have regard to the need to safeguard and promote the welfare of children requires the UK Border Agency to consider the effect [on] any children of a decision to refuse leave, or remove, against the need to maintain the integrity of immigration control. Our aim is always to carry out enforcement of the Immigration Rules with the minimum possible interference with a family's private life, and in particular to enable a family to maintain continuity of care and development of the children in ways that are compatible with the immigration laws. In the particular circumstances of your case, it has been concluded that the need to maintain the integrity of the immigration laws outweighs the possible effect on you that might result from you and your children having to re-establish family life outside the United Kingdom."
16. I have reproduced the full paragraph above and put into italics the portion on which Mrs [S] relies. The same wording was included in the letter dated 17 May 2018 sent by the Secretary of State to Mrs [S]'s husband refusing his application for leave to remain as a dependant of Mrs [S]. Similar wording, appropriately adapted, was included in the letter dated 17 May 2018 sent by the Secretary of State to their son refusing his application for further leave to remain as a dependant of Mrs [S].
The issues
17. UTJ McWilliam granted permission on the basis that the Principal Decision "is arguably irrational in stating that the applicant does not have a right of appeal". I note, however, that neither the Principal Decision, nor the Review Decision, nor the Secretary of State's response dated 2 August 2018 to Mrs [S]'s pre-action protocol letter includes an express statement by the Secretary of State that Mrs [S] does not have a right of appeal. The argument, therefore, must be that the Secretary of State made an implicit statement that no right of appeal arises, by virtue of his denial that he had decided to refuse a human rights claim.
18. The Secretary of State's alleged refusal is said to have been set out in the italicised wording I have quoted at [15] above. His denial that this is a refusal of a human rights claim is the subject of this judicial review challenge. I have a slight difficulty with this formulation of the issue in that the Secretary of State did not deny that he has refused a human rights claim in the Principal Decision, which is challenged by this judicial review. The parties, however, have proceeded on this basis, and it is clear that the Secretary of State's position now is that he did not consider, much less refuse, a human rights claim in the Principal Decision.
19. One issue raised by this judicial review application is, therefore, whether in the Principal Decision the Secretary of State determined a human rights claim made by Mrs [S], giving rise to a right of appeal in the absence of certification by the Secretary of State, and, if so, whether his denial that he has done so is irrational.
20. The other issue, which is raised by the Secretary of State as part of his defence of the claim, is whether Mrs [S] has an alternative remedy such that this judicial review claim should be dismissed on that basis. I will deal with this issue first.
Alternative remedy
21. In my view, Mrs [S] has an alternative remedy, namely, to file an appeal with the FTT, as she has, in fact, done since she filed this claim for judicial review, as I have already noted. The FTT clearly has jurisdiction to determine whether it has jurisdiction in this case, although it had not done so as at the date of the hearing before me. In order to determine whether it has jurisdiction, the FTT will need to determine whether, having regard to the facts of this case, Mrs [S] has made a human rights claim giving rise to a right of appeal. Accordingly, this claim is premature. It is a well-established principle that administrative review is a remedy of last resort. Mrs [S]'s claim must therefore be dismissed.
22. Mr Nicholson for Mrs [S] submitted that the FTT does not have the power to consider the question of rationality for which permission was granted by UTJ McWilliam, and there is therefore no remedy available in the FTT for the irrationality of the Secretary of State's denial that it has refused a human rights claim that is an alternative to this judicial review claim.
23. In my view, there is no force in that submission. If the FTT determines that it has jurisdiction on the basis that a right of appeal arises, Mrs [S] will have, in substance, the remedy that she is seeking.
24. As noted by the Court of Appeal in the case of Khan v Secretary of State for the Home Department [2017] EWCA Civ 424 at [9] (Lord Justice Underhill):
"It is of course well-established that where there is a statutory right of appeal against a decision it is only where 'special or exceptional factors' are in play that the court will allow a challenge to that decision to proceed by way of judicial review rather than by the route provided by statute: see, most recently, R (Mehmood) v Secretary of State for the Home Department [20151 EWCA Civ 744, [2016] 1 WLR 461, per Beatson LJ at para. 49 (p. 475G)."
25. In my view, there are no special or exceptional factors in this case that justify departing from the normal principle.
Did the Secretary of State refuse a human rights claim and, if so, irrationally deny having done so?
26. Having decided that there is an alternative remedy, bearing in mind that administrative review is a remedy of last resort, it is not necessary for me to consider the question of whether the Secretary of State has irrationally refused a human rights claim. Indeed, if I were to address, even in part, the various submissions made by the parties in relation to this, there would be a risk of prejudice to the FTT's consideration of its jurisdiction in this matter and, if it decides that it is able to exercise jurisdiction, to its consideration of Mrs [S]'s appeal. Accordingly, I decline to do so.
27. I am reinforced in this conclusion by the Court of Appeal's decision in the case of Khan. Khan was an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") dismissing an application for judicial review on the basis that there was an alternative remedy by way of appeal to the FTT. Lord Justice Underhill said the following at [19]:
"My starting-point is that it is both natural and more convenient that where an issue arises as to the jurisdiction of a statutory tribunal that issue should be determined in the first instance by the tribunal itself, which can then proceed to consider the substantive issues if it decides that it has jurisdiction. It is inherently more wasteful for proceedings to be brought in different courts or tribunals. I do not see the force of Mr Pennington-Benton's suggested distinction between cases where jurisdiction is in issue and other 'alternative remedy' cases. Once it is accepted, as he does accept, that the tribunal is in principle entitled to determine whether it has jurisdiction, I see no reason, in this context, for treating that question differently from any question which it is empowered to decide. I accept that if one or other party is dissatisfied with the FTT's decision on jurisdiction it may then have to be decided by the UT, whether on appeal (where there was a hearing in the FTT) or by way of judicial review (where there was not), in which case the parties will have been put to the additional time and trouble of arguing the case twice rather than once. But that is not peculiar to cases of the present kind. It is an inevitable consequence of the application of the alternative remedy principle in the tribunal field and has not been treated in other cases as sufficient reason for allowing the statutory jurisdiction to be undermined."
Order
28. I order, therefore, that the judicial review application be dismissed.
Permission to appeal to the Court of Appeal
29. I refuse permission to appeal to the Court of Appeal on the basis that an appeal would have no real prospect of success and there is no other compelling reason for the Court of Appeal to hear an appeal in this case.
Costs
30. I have dismissed this judicial review application on the basis that there is an alternative remedy, an issue raised by the Respondent after permission had been granted on another ground. I note, however, that the Applicant obtained permission on only one out of four Grounds, and that she was obliged to review her position on receipt of the Respondent's Detailed Grounds of Defence, which raised the alternative remedy point by reference to the clear authority of Khan. Accordingly, in my view, the normal rule as to payment of should apply. I order that Applicant pay the Respondent's costs of this application for judicial review, to be assessed if not agreed.
Signed:
Mr Justice Murray (sitting as a Judge of the Upper Tribunal)
Dated: 10 June 2019
Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a question law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
UTIJR15
JR/5792/2018
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review
Notice of Decision/Order/Directions
The Queen on the application of
MONIKA [S]
Applicant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Decision and Directions of Mr Justice Murray (sitting as a Judge of the Upper Tribunal)
Having considered all documents lodged by the parties and having heard the parties' respective representatives, Mr Edward Nicholson, of Counsel, on behalf of the Applicant and Mr Zane Malik, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 22 May 2019.
(1) The applicant's claim for judicial review is dismissed.
(2) Permission to appeal to the Court of Appeal is refused.
(3) The applicant is to pay the respondents costs of the application for judicial review, to be assessed if not agreed.
Signed:
Mr Justice Murray (sitting as a Judge of the Upper Tribunal)
Dated: 10 June 2019
Sent to the Applicant, Respondent and any interested party / the Applicants, Respondents and any interested party's solicitors on (date):
Home Office Ref: