Immigration Law Update: Procedure: R (on the application of Kaur) v Secretary of State for the Home Department [2015] EWHC 1061

Read the full judgment here.
 
The C is a 25-year-old Indian national who has been in the UK since 2009 on a student visa. In June 2014 she was arrested and detained on the basis that she had been working in breach of her visa conditions. She denied that and issued JR proceedings against the D. 
 
The first issue the Court considered was whether this was a proper case for JR. The SSHD v Lim [2007] EWCA Civ 773 was cited in which it was stated that all removal decisions are reviewable and appealable; the nature of the issues involved determine which remedy is appropriate; and in the absence of special or exceptional factors the High Court would refuse an application for JR where there was another remedy. There were no special or exceptional factors justifying JR in this case –that this was not a case where the immigration officer’s conclusion flies in the face of reality or where the evidence all points one way.  An out of country appeal should have been pursued. 
 
The second issue was whether the decision was open to challenge for failing to consider whether to curtail the Claimant's leave, thus giving her an in-country right of appeal, rather than serving a removal decision against which there was only an out of country right of appeal.  The EIG necessitates a two-stage consideration: was the C liable for removal and would it be fair to serve a removal notice? The J found there was no failure to consider the exercise of discretion in this case and there was no general requirement to record the same in the decision notice.

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