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Court of Appeal upholds principle of exhaustion of alternative remedies in immigration judicial review

The Court of Appeal in Oyekan v Secretary of State for the Home Department [2016] EWCA Civ 1352 has found that an application to seek judicial review of an immigration decision before all other remedies had been exhausted was manifestly ill-founded.

The Original Claim

The Appellant, a Nigerian citizen, entered the UK in August 2009 with entry clearance as a student. After her leave expired on 2nd October 2010, she remained in the country illegally. On 14 December 2011 the appellant applied for a residence card on the basis of her proxy marriage to a sponsor, an EEA Swedish national of Nigerian heritage, which was said to have occurred in February of that year. This application was summarily rejected by the Home Secretary on the basis that the proxy marriage was not considered valid.

A further application in April 2012, in which the Appellant claimed that she and her sponsor had been living together for over two years, was again rejected by the Home Secretary. She stated in her decision that the only proof of this was a joint tenancy agreement, and reiterated that, despite the production of a marriage certificate, proxy marriages were not considered valid under Nigerian law.

The First Tier Tribunal

This decision was appealed to the First Tier Tribunal (the ‘FTT’), where the Home Secretary’s characterisation of the marriage was contested. It was not, however, mentioned at the hearing that the marriage had in fact broken down a few months previously.

The judge found that on the evidence of the US State Department’s information on proxy marriages, the appellant had not even carried out the proxy marriage correctly, so the question as to whether or not the marriages in general were valid was moot. Furthermore, despite the Appellant’s (who was not present at the hearing) submissions, it was for her to prove that a durable relationship had been created, not the Home Secretary. The case was therefore dismissed. An application to appeal to the Upper Tier Tribunal was refused at the first level, however the Appellant did not take up the opportunity to renew the application, and instead remained in the UK as an over-stayer.

The Judicial Review

On 14 October 2013, the Appellant brought Judicial Review proceedings on two grounds, the first reiterating the validity of the Appellant’s marriage and the second bringing an entirely new point based on Article 8 of the Human Rights Act 1998, the right to family and private life. Permission was granted.

The Home Secretary therefore abandoned the old deportation order and re-examined the case on the new grounds. She again refused the application but nevertheless allowing the Applicant a right of in-country appeal. As this meant that the Appellant had not exhausted all remedies, as they could still appeal the decision, she was invited to abandon the Judicial Review. She did not, and at the Judicial Review her case was dismissed with Judge Freeman stating that the new decision of the Home Secretary:

“provided a clear alternative remedy by which the application could be reconsidered on appeal by a First-tier Tribunal judge with the full facts and law before them. Any argument on costs at that stage could have been put before the Tribunal to resolve if necessary, and so the application is dismissed.”

The Court of Appeal

The Appellant contested this decision before the Court of Appeal. Here all three judges concurred with the original decision of Judge Freeman. A Judicial Review should never have taken place, as the Appellant had an alternative remedy, and could have at any point simply taken the case to the FTT. This was a fundamental principle of procedure, and Mr Justice Cranston stated that:

“the barest familiarity with the law would have led the appellant to withdraw the judicial review and pursue an appeal before the First-tier Tribunal.”

The appeal was therefore dismissed, with a full costs order against the Appellant.

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