THE QUEEN v ON THE APPLICATION OF ANDREW OTARU [2001] EWCA Civ 126

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 LIST
(Mr Justice Owen)
[2001] EWCA Civ 126Case No C/00/2228Venue Royal Courts of Justice, Strand, London WC2, Thursday, 25th January 2001
Between
THE QUEENON THE APPLICATION OF ANDREW OTARUSECRETARY OF STATE FOR THE HOME DEPARTMENT
Before
Sir Andrew MorrittLord Justice JudgeLord Justice ManceMR. A. RIZA Q.C. and MR. K. HAMMOND (instructed by Messrs Victor Evans & Co., London, SE1) appeared on behalf of the Appellant.MR. K. QUERESHI (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.Date 25 January 2001

LORD JUSTICE JUDGE:

This

[1]is an appeal from the decision of Owen J dated 24th May 2000 refusing the applicant permission to seek a judicial review of the decision of the Secretary of State to remove him from the United Kingdom on 29th March 2000.[2]The relevant facts can be quickly summarised. Ignoring a brief visit in 1980, the applicant first came to the United Kingdom in 1988. Apart from holiday breaks and so on, he has apparently remained here ever since. He married on 15th April 1992. His wife was a British citizen. On 28th August 1993 another woman gave birth to his child. On 12th October 1993 he was granted indefinite leave to remain on the basis of his marriage, which, unfortunately, was dissolved in November 1995. The applicant then remarried in May 1998 and his bride was the mother of the child born in August 1993. In January 1999, after returning briefly to Nigeria, he was refused permission to enter. The Secretary of State considered that the first marriage, which had formed the basis of the original grant of indefinite leave, was a sham or deception, and not therefore a true marriage at all. That decision was impugned in the proceedings for judicial review.[3]The relief sought was, and I quote from the Form 86A:
"1. Order of certiorari quashing the decision of the SSHD refusing to withdraw the removal direction against the applicant. 2. Order of mandamus compelling the respondent to withdraw removal direction against the applicant. 3. Order prohibiting the respondent from removing the applicant from jurisdiction to Nigeria. 4. Any further orders."
[4]The grounds were:
"The decision of the Secretary of State to remove the applicant from jurisdiction to Nigeria on ground of obtaining indefinite leave to remain by deception is highly unreasonable. 2. The Secretary of State has not given adequate consideration to the circumstances of this case. 3. The respondent did not give adequate consideration to the fact of the applicant's family if removed from the U.K. 4. Further grounds to be canvassed at the hearing of this application."
[5]Brooke LJ on 23rd November gave the applicant permission to appeal Owen J's decision, giving as his reasons that:
"It appears desirable that the Court of Appeal should consider the ECHR issues raised in the appeal."
[6]As Mr. Riza QC readily and, if I may say so, sensibly accepted, if Brooke LJ had known on 28th November what we know happened on 12th December, permission would not have been granted. On that date the appellant was granted indefinite leave to remain in the United Kingdom as a dependent of his second wife. He has therefore achieved what he sought to achieve in the proceedings for judicial review. It is unnecessary, at this stage of the judgment at any rate, to reflect on the subsequent correspondence between the Treasury Solicitor for the Secretary of State and the solicitors acting for the applicant. What is plain is that the present appeal is hopeless, not because the issue identified by Brooke LJ might not have raised issues of possible importance, but because that issue no longer arises for decision in this case. Assuming that the issue were resolved in the appellant's favour, and assuming that the Secretary of State's conclusion that the marriage was a sham could be upset on any of the appropriate grounds available in judicial review proceedings, the appellant could still achieve nothing that he had not already been granted. Any order therefore would be academic. As a discretionary remedy judicial review is not normally granted where its effect would be academic. In my judgment, this appeal should be dismissed on that basis.[7]I should add, to deal with the concerns expressed by Mr. Riza about possible disadvantage or prejudice to his client arising from the dismissal of the appeal, I do not regard anything in the decision that I have reached as carrying any indication of my view one way or another on the issue whether the original marriage was a deception or not. If that issue arises for decision I do not expect either side to deploy my judgment in support of their submissions.

LORD JUSTICE MANCE: I agree.

[9]THE VICE-CHANCELLOR: I also agree.

Order

Appeal dismissed; legal aid taxation of the appellant's costs. (Order not part of the judgment of the court)

Cited in 1 later judgment