ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Jay
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEATSON
LADY JUSTICE KING
| The Queen (on the application of Bijendra Giri)
|- and -
|Secretary of State for the Home Department
Lisa Giovannetti QC and Mathew Gullick (instructed by Government Legal Department) for the Respondent
Hearing date: 14 July 2015
Crown Copyright ©
Lord Justice Richards :
"Grounds on which leave to remain and variation of leave to remain in the United Kingdom are to be refused
(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed in relation to the application."
i) On the basis of the documentary evidence and the witness statement of the official who took the decision, the judge said that the decision was not one that he himself would have reached, or at least he would not have reached it for the reasons given by the deponent, but he could not conclude that the decision was Wednesbury unreasonable (paragraph 17).
ii) He pointed to the further evidence placed before the court in the form of the appellant's own witness statement, in which the appellant sought to persuade the court that he had neither submitted forged documents in 2006 nor admitted subsequently in interview that he had done so. The judge found that evidence utterly unconvincing (paragraph 19). This fed in to his conclusion summarised at (iv) below.
iii) The judge was inclined to the view that this was a "precedent fact" case in which it was for the court to decide as a matter of fact whether or not deception was used in the April 2011 application, rather than to review on Wednesbury grounds the decision of the Secretary of State on that matter (paragraphs 23-28).
iv) He found it unnecessary, however, to reach a decision on that point, because he was satisfied that even if the case was approached as one of precedent fact, i.e. on the most favourable view of the law from the appellant's perspective, the claim must fail (paragraphs 29-32). Applying "an ordinary balance of probabilities criterion", he was satisfied that the answer given to the relevant question in the application form was dishonestly false. He said: "I have absolutely no doubt that it was false in objective terms since the evidence demonstrates beyond peradventure, for the reasons I have already given, that deception was used when seeking leave to enter on a previous occasion, namely in February 2006". Picking up the point summarised in (ii) above, he stated further that it was not possible to reconcile the appellant's witness statement with a process of reasoning which exonerated the appellant.
The legislative context
"Except as otherwise provided by or under this Act, where a person is not a British citizen,
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period …."
Leave granted under section 3(1) for a limited period may be extended or varied in other ways pursuant to section 3(3). I shall refer to the grant or refusal of leave as encompassing the grant or refusal of an application to extend leave previously granted.
"(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if –
(b) he uses deception in seeking (whether successfully or not) leave to remain;
(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him."
The power of removal under that section was not exercised in this case, despite the fact that the July 2011 decision included a finding that the appellant had used deception in his April 2011 application. I mention the section, however, because it is relevant to the argument on the first main issue, to which I now turn.
First issue: precedent/jurisdictional fact or review on Wednesbury principles?
"On this question, I agree with my noble and learned friends, Lord Bridge and Lord Scarman, that an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant. That is a 'precedent fact' which has to be established. It is not enough that the immigration officer reasonably believes him to be an illegal entrant if the evidence does not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief."
"Whenever a non-patrial comes from abroad he needs leave to enter the United Kingdom and the decision whether or not such leave should be granted is fairly and squarely committed to the immigration officer by the statute. This necessarily entrusts all relevant decisions of fact, as well as the application to the facts of the relevant rules and any necessary exercise of discretion, to the immigration officer. If leave to enter is refused, that decision can plainly only be challenged on the now familiar grounds on which the court has jurisdiction to review a public law decision committed by statute to an administrative authority. Following a refusal of leave to enter there can be no successful challenge to a consequential order to detention and directions for removal unless the refusal of leave to enter can itself be successfully impugned. But the detention and removal of a non-patrial resident in this country, who may or may not be a British subject, who may have been here for many years and who, on the face of it, enjoys the benefit of an express grant of leave to be here, on the ground that he is an illegal entrant, seems to me to be dependent on fundamentally different considerations. A person seeking leave to enter requires a decision in his favour which the immigration officer alone is empowered to give. The established resident who entered with express permission enjoys an existing status of which, so far as the express language of the statute goes, the immigration officer has no power to deprive him. My Lords, we should, I submit, regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on. The fact that, in this case we are considering, detention is preliminary and incidental to expulsion from the country in my view strengthens rather than weakens the case for a robust exercise of the judicial function in safeguarding the citizen's rights."
"The reason why this argument cannot be sustained is that all questions of fact on which the discretionary decision whether to grant or withhold leave to enter or remain depends must necessarily be determined by the immigration officer or the Secretary of State in the exercise of the discretion which is exclusively conferred upon them by section 4(1) of the Act. The question whether an applicant for leave to enter or remain is or is not a refugee is only one, even if a particularly important one required by paragraph 73 of HC 169 [i.e. the relevant paragraph of the Rules] to be referred to the Home Office, of a multiplicity of questions which immigration officers and officials of the Home Office acting for the Secretary of State must daily determine in dealing with applications for leave to enter or remain in accordance with the rules, as, for example, whether an applicant is a bona fide visitor, student, businessman, dependant etc. Determination of such questions is only open to challenge in the courts on well known Wednesbury principles …. There is no ground for treating the question raised by a claim to refugee status as an exception to this rule. For the reasons explained at length in the speeches in Khawaja's case the court's fundamentally different approach to an order for removal on the ground of illegal entry is dictated by the terms of the statute itself, since the power to direct removal under paragraph 9 of Schedule 2 is only available in the case of a person who is in fact an 'illegal entrant'."
"The role of the court in the immigration field varies, depending on the legislative and administrative context. Where an exercise of administrative power is dependent on the establishment of an objective precedent fact the court will, if called upon to do so in case of dispute, itself rule whether such fact is established to the requisite standard. Thus, for example, where power to detain and remove is dependent on a finding that the detainee is an illegal entrant, one who has entered clandestinely or by fraud and deceit, the court will itself rule whether the evidence is such as to justify that finding: Reg. v. Secretary of State for the Home Department, Ex parte Khawaja  AC 74. By contrast, the decision whether an asylum-seeker is a refugee is a question to be determined by the Secretary of State and the immigration appellate authorities, whose determinations are susceptible to challenge only on Wednesbury principles: Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay  AC 513. I am of opinion, although with some misgivings, that the judgment whether a fresh 'claim for asylum' has been made should be assimilated with the latter, and not the former, class of judgment …."
I read that passage as an application of the principles in Khawaja and Bugdaycay in the specific context of fresh claim decisions, rather than as a departure from, or modification of, those principles.
"The applicants claimed, in reliance on the Khawaja case …, that the question whether or not they were entitled to asylum … was a question of jurisdictional or precedent fact which was for the court, not the executive, to determine. Their Lordships rejected this submission, saying that the question whether or not the applicants were refugees was but one of a large number of factual issues which had been committed by Parliament to the executive to determine in the course of exercising their discretion whether or not to give leave to enter. The facts were not, as in the Khawaja case, a condition precedent to the existence of any discretionary power, but matters for determination in the course of exercising such power."
Lord Browne-Wilkinson continued:
"The issue therefore in the present case is whether the determination of the facts relevant to the question whether the applicants were being detained 'pending removal' goes to the jurisdiction of the director to detain or to the exercise of the discretion to detain. In their Lordships' view the facts are prima facie jurisdictional. If removal is not pending, within the meaning of section 13D, the director has no power at all …"
Expressing the matter in terms of jurisdiction, as in Tan Te Lam, it is clear that the question under paragraph 322(1A) whether deception has been used goes to the exercise of the Secretary of State's discretion whether to grant leave to remain, not to the jurisdiction to grant leave.
"27. But the question whether a person is a 'child' is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers.
32. However, as already explained, the Act does draw a distinction between a 'child' and a 'child in need' and even does so in terms which suggest that they are two different kinds of question. The word 'child' is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it."
"28. … There is absolutely no reason to construe that paragraph in any different way from paragraph 322(1A). The mandatory requirement that entry clearance be refused is dependent on certain facts being established. One of these facts is that the applicant is … an illegal entrant. If Khawaja applies to paragraph 320(7B), as I believe it must do, it is difficult to see why the same sort of principles should not apply to the other sub-paragraphs in this rule, given that each depends on proof of a relevant characteristic rather than a value judgment or discretion."
Second main issue: standard of proof
"Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."
"13. … I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not ….
15. … There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities …."
"101. However, we do agree … that the consequences of refusal under Part 9 can be serious and that this is certainly true for persons such as the three appellants who, depending on findings of fact made by the Tribunal, may find themselves, if removed from the UK, faced with a 5-10 year re-entry ban under para 320(7B) …. Whilst we would note that Lord Hoffman in Re B (Children) emphasised that the seriousness of the consequences do not require a different standard of proof, we do accept that for the respondent to satisfy us he has discharged the burden of proof on him on the balance of probabilities he would, in the context of this type of case, need to furnish evidence of sufficient strength and quality and he (and the Tribunal) would need to subject it to a 'critical', 'anxious' and 'heightened' scrutiny."
My only concern about that passage is the risk that "heightened scrutiny" might be treated as a surrogate for the application of a "heightened standard of proof", a test which has been decisively disapproved. For that reason, the expression should in my view be avoided. Subject to that, it seems to me that the tribunal's approach is consistent with the authorities on standard of proof.
Lord Justice Beatson :
Lady Justice King :