The claimant, a national of Pakistan, had limited leave to remain in the United Kingdom. A few days before the expiry of his leave he applied for an extension of his period of leave. The Secretary of State rejected that application on the grounds that it had not been accompanied by the required fee. Since the claimant had no right of appeal against this rejection, he submitted a renewed application accompanied by the required fee. The Secretary of State refused that application on the merits, informing the claimant that he had no right of appeal against her refusal since his renewed application had been made at a time when he had no leave to remain. The claimant sought judicial review of the Secretary of State’s determination that he had no right of appeal, contending that he had had leave to remain at the time of making his renewed application since his leave had been automatically extended pursuant to section 3C of the Immigration Act 1971 when he made his original application for an extension, and was still continuing. The claimant was granted permission to proceed with his claim, but at the full hearing the Upper Tribunal dismissed the claim on the basis that the claimant had an alternative remedy in the form of an appeal to the First-tier Tribunal.
On the claimant’s appeal—
Held, appeal allowed. In the particular circumstances of the case, the Upper Tribunal should have gone on to determine the issue raised by the claimant’s claim itself, despite the existence of an alternative remedy by way of appeal to the First-tier Tribunal. The relevant circumstances were not only that permission to proceed with the claim for judicial review had been granted and the disappointed expectation and wasted time and costs which were the inevitable consequence if the parties were then required to pursue a different route, but also the additional features that: (a) permission had been granted at an oral hearing, at which the Secretary of State had been represented and taken no point on alternative remedy; (b) the Secretary of State did not herself take the point at any subsequent stage, it being raised by the Upper Tribunal for the first time at what was expected to be the substantive hearing; (c) the judicial review route followed by the claimant was one which had been followed without demur in several other cases; (d) it was, to put it no higher, uncomfortable to decide the claim on the basis that the claimant should have appealed to the First-tier Tribunal in circumstances where her own decision letter asserted that no such appeal lay; (e) the proceedings had already been going on for almost two years without a decision even as to the correct route of challenge (a delay exacerbated by the adjournment in order to allow the alternative remedy point to be explored); and (f) it appeared that the issue in the present case might throw up issues about the reasoning in an earlier decision of the Upper Tribunal which might be of wider application and which it would therefore be useful to have determined at Upper Tribunal level. The Court of Appeal’s attention had not been drawn to any factual issue of a kind which was inappropriate for resolution in judicial review proceedings. The matter would be remitted to the Upper Tribunal (paras 28, 29, 31–32, 36, 38).
Rowan Pennington-Benton and Julia Lowis (instructed by Farani Javid Taylor) for the claimant.
Zane Malik (instructed by Treasury Solicitor) for the Secretary of State.