England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th June 2013

Maura McGowan QC:

Factual Background

1. The Claimant was born on 3 November 1987. She is a national of Pakistan. On 3 August 2010, she was granted entry clearance to the United Kingdom as a Tier 4 student to attend a course at the City of London College. The course was due to run from 13 September 2010 until 5 August 2011.
2. She arrived at Heathrow on 26 August 2010. On arrival she was questioned by immigration officers on the financial support available to her for her studies. She gave conflicting information. Initially, she stated that her father was paying her fees and that he was present in the UK as a visitor and working. The immigration officers found a copy of his immigration application on the Secretary of State's computer records. It showed that he was an unlawful over-stayer. They showed the Claimant the photograph on that file and asked the Claimant to confirm that it was her father. She did so. The officers then telephoned her father who confirmed that he was expecting his daughter and would be providing her with financial support. However, when he was challenged as to his immigration status, he ended the call. He did not answer the telephone when the officers called him back. The Claimant later denied that the photograph was that of her father and claimed to have made a mistake in her first interview.
3. The Claimant was detained overnight. On 27 August 2010, she was refused leave to enter. The Notice of Refusal stated, so far as it is relevant, as follows:

"You were given entry clearance which had effect as leave to enter the United Kingdom on 3.8.10 but I am satisfied that false representations were employed or material facts were not disclosed for the purpose of obtaining the leave, or there has been such a change of circumstances in your case since the leave was granted that it should be cancelled, I therefore cancel your continuing leave. If your leave was conferred by an entry clearance, this will also have the effect of cancelling your entry clearance. This is because it appears that your father resides here unlawfully; this information was not imparted to the visa officer; there appears to be a pattern of family migration to the UK. In the circumstances, I cannot be satisfied that the visa officer would have issued your visa."

4. Accordingly, leave to enter was refused and the Claimant's existing leave to enter was cancelled. Removal directions were set for the evening of 27 August 2010. These were later cancelled and she was released from detention. The removal directions were re-set for the following day, 28 August 2010. She departed on that date.
5. The Claimant subsequently lodged an out-of-country appeal. The hearing was listed before the Tribunal for 28 February 2011. The notice of hearing was sent on 7 December 2010.
6. On 21 February 2011, the Secretary of State indicated in an e-mail to the Tribunal that an "application" by the Claimant had been "issued". The Tribunal sent a notice to the Claimant on 26 February 2011 indicating that the Secretary of State had withdrawn the decision under challenge.
7. The decision had not actually been withdrawn by the Secretary of State. The reference in the 21 February 2011 e-mail to an "application" having been issued was to the original application for entry clearance which had been granted on 3 August 2010. The Tribunal's reference to the decision having been withdrawn appears to have been based on the understanding that the e-mail of 21 February 2011 indicated that the decision had been withdrawn. This appears to have begun a series of errors and misunderstandings.
8. Following the Tribunal's notice of 26 February 2011, the Claimant's representatives wrote to the Secretary of State on 20 and 26 April 2011 requesting documentation to enable the Claimant to return. This prompted an e-mail from the Secretary of State to the Tribunal on 27 April 2011 to inquire as to the basis of the alleged withdrawal of the decision. This was followed by an internal e-mail seeking clarification as to what had happened on 18 May 2011. As a result of this correspondence, on 20 May 2011, the Secretary of State e- mailed the Tribunal indicating that there had been a mistake and asking the Tribunal to "get the hearing relisted".
9. On 25 May 2011, the Tribunal complied with this request and wrote to the parties indicating that the hearing had been relisted for 17 June 2011. By a letter dated 31 May 2011, the Claimant's representatives wrote to the Tribunal to seek clarification of why the matter was being relisted. The letter ended by stating "We are also sending the copy of the withdrawal decision along with this letter". By a letter dated 2 June 2012, the Tribunal wrote to the Claimant's representatives indicating that the papers had been put before a Duty Judge who had held as follows:

"Vacate the hearing; the Tribunal sent notice to the parties on 26/02/2011 that Respondent had withdrawn the original decision. Having recorded the appeal as hearing been withdraw [sic] (rule 17(3) there is no power to relist it for hearing."

10. The Tribunal then wrote to the parties on 6 June 2011 indicating that the Appellant had withdrawn the appeal. It is not clear why the author of that Notice thought that the Appellant had withdrawn the appeal but it may have been based on a mistaken reading of the Claimant's representative's letter of 31 May 2011 and its reference to the inclusion of a copy of the withdrawal notice. On 27 June 2011 the Claimant's representatives wrote to the Secretary of State stating that the appeal had been allowed and all that remained out-standing was implementation:

"once again, we would like to bring this fact into your notice that the appeal has been decided in favour of the appellant and this fact can be verified from the First Tier Tribunal. The only remaining issue is to get it implemented."

11. The present claim was commenced on 11 November 2011. Permission was granted by HHJ Raynor QC on 19 April 2012. On 7 March 2013, the Secretary of State wrote to the Claimant's representatives indicating that she would withdraw the decision of 27 August 2011 refusing leave to enter and issue a new refusal of leave to enter. The effect (and intention) of doing so would be to generate a fresh right of appeal. The Claimant's representatives did not accept that offer. Nonetheless, the Secretary of State did in fact withdraw the decision of 27 August 2010 and reissued a fresh refusal of leave to enter on 7 March 2013. The effect of that action is that the Claimant now had an out-of-country right of appeal to the Tribunal.

The Substantive Hearing

12. The Claimant challenges the decision to refuse her leave to enter the United Kingdom on 27 August 2010 and a series of related decisions (her detention, her removal and an alleged failure to honour a decision to withdraw her leave to enter).
13. The Secretary of State has reviewed the claim. She maintained that she had not at any stage prior to 7 March 2013 withdrawn the decision of 27 August 2010 to refuse the Claimant leave to enter the UK. However, she recognised that the Claimant had an out-of-country right of appeal against that decision which she has lost because the First-tier Tribunal (Immigration and Asylum Chamber) (the "Tribunal") proceeded on the basis that the decision had been withdrawn. Whilst this was not correct, and the decision had not been withdrawn at the relevant time, the Secretary of State recognised that the Claimant has lost a right of appeal to the Tribunal which would have enabled her to challenge the refusal of leave to enter in a more appropriate forum. It would appear that this was not the fault of the Claimant.
14. For these reasons, on 7 March 2013 the Secretary of State indicated to the Claimant's legal representatives that she would formally withdraw the decision of 27 August 2010 and reissue a new refusal of leave to enter, thereby regenerating a fresh right of appeal. The Treasury Solicitor, for that reason, invited the Claimant's representatives to agree that the claim was academic and should be withdrawn. They have refused to do so. The decision of 27 August 2010 was, in any event, withdrawn on 7 March 2013 and a fresh refusal of leave to enter issued on the same day. The 7 March 2013 decision carries an out-of-country right of appeal to the Tribunal.
15. The Secretary of State contended that the Claimant was in the same position that she would have been in, had her original appeal in the Tribunal proceeded. She has a full appeal on fact and law to the Tribunal, as opposed to the present claim which can only determine the existence of errors of law. Accordingly, she contends that the judicial review claim is academic. Correspondence setting out the Secretary of State's contentions and inviting the Claimant to withdraw her claim by consent on that basis was before the court.
16. The Claimant's first application was to adjourn these proceedings to allow further consideration of the Claimant's position. It was not pursued with any enthusiasm as it was readily apparent that further delay would not assist. The request for an adjournment was refused.
17. The second application was to proceed to hear the matter but on the basis that the court ignored the decision of the Secretary of State of 7 March 2013. Again it was accepted that that would be a wholly unrealistic basis upon which to proceed.
18. It was also conceded that in light of the decision of 7 March 2013 the first ground of the claim could no longer stand and accordingly, Grounds 2 to 5, alone remained to be determined. It is the Claimant's case that earlier mistakes and delay can only properly be remedied by the Court's grant of a right of entry to the UK and/or the award of exemplary and/or aggravated damages to compensate for distress based on breach of statutory duty and misfeasance in public office.
19. The Defendant's position was, as stated above, that to pursue the claim was "academic" given the position which now gives the Claimant her out-of-country right of appeal, further that there is no right to damages for losses caused by unlawful administrative action, even if such were proved to have occurred in this case. R (Quark Fishing Ltd) v Foreign Secretary [2006] 1 AC 529 per Baroness Hale.

The Legal Framework

20. So far as is relevant, paragraph 2A of Schedule 2 to the Immigration Act 1971 (the "1971 Act") provides that:

"(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.

(2) He may be examined by an immigration officer for the purpose of establishing –

(a) whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled;

(b) whether that leave was obtained as a result of false information given by him or his failure to disclose material facts; or

…….

(8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter.

(9) Cancellation of a person's leave under sub-paragraph (8) is to be treated for the purposes of this Act and Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) as if he had been refused leave to enter at a time when he had a current entry clearance.

[...]"

21. Paragraph 8 of Schedule 2 to the 1971 Act provides, so far as is relevant, that:

"(1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below –

(a) give the captain of the ship or aircraft in which he arrives directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; or

(b) give the owners or agents of that ship or aircraft directions requiring them to remove him from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents; or

(c) give those owners or agents directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the direction to a country or territory so specified being either –

(i) a country of which he is a national or citizen; or

(ii) a country or territory in which he has obtained a passport or other document of identity; or

(iii) a country or territory in which he embarked for the United Kingdom; or

(iv) a country or territory to which there is reason to believe that he will be admitted.

(2) No directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date on which he was refused leave to enter the United Kingdom (ignoring any period during which an appeal by him under the Immigration Acts is pending) except that directions may be given under sub-paragraph (1)(b) or (c) after the end of that period if the immigration officer has within that period given written notice to the owners or agents in question of his intention to give directions to them in respect of that person."

22. Paragraph 321A of the Immigration Rules provides, so far as is relevant, that:

"The following grounds for the cancellation of a person's leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply:

(1) there has been such a change in the circumstances of that person's case since the leave was given, that it should be cancelled; or

(2) false representations were made or false documents were submitted (whether or not material to the application, and whether or not to the holder's knowledge), or material facts were not disclosed, in relation to the application for leave; [...]"

23. By section 82(2)(a) of the Nationality, Immigration and Asylum Act 2002 (the "2002 Act"), a refusal of leave to enter is an "immigration decision" which, under section 82(1), carries a right of appeal to the FTT. By section 92 of the 2002 Act, it is an out-of- country right of appeal.

Issues

Ground 1-Unlawful detention and unlawful removal

24. In light of the Secretary of State's decision of 7 March 2013 this ground was not proceeded with. It is however essential to make reference to it as it had been the primary and substantive ground of appeal. All other claims stemmed from this refusal of 27 August 2011. The public law principle of validity in effect means that this decision was valid until quashed. If this decision remained valid until it was withdrawn by the decision of 7 March 2013, as it must have done, then the Secretary of State argues all claims arising from it must fail. That argument is correct and all consequent grounds must fall with the decision of 7 March 2013.
25. It was conceded by the Secretary of State of State that a series of mistakes had been made in the administrative conduct of the appeal against the decision of 27 August 2011. Some of those mistakes had been made by officers acting on behalf of the Secretary of State. It was therefore decided to put the appellant back in the position that would have obtained if those mistakes had not been made. The decision of 7 March 2013 gives the Claimant an out-of-country right of appeal, that right is identical to the one she earlier lost.
26. In addition in support of this ground the Claimant avers breaches of her rights under Articles 5 and 8 of the European Convention on Human Rights. These averments do not support the point and do not advance the case on this ground.

Ground 2-Breach of legitimate expectation

27. There was never in this case any direct communication by the Secretary of State to the Claimant to the effect that the underlying decision had been withdrawn. It is accepted that there was an erroneous communication that an application from the Claimant had been issued. This was understood by the Tribunal as meaning that the underlying decision had been withdrawn so that the appeal was unnecessary. It is accepted that the mistake on the part of the Tribunal was an understandable one. Further, it is conceded that the Claimant's representatives seemed to have mistakenly understood that an appeal had been allowed.
28. It is clear that for a legitimate expectation to arise, there must be a representation which is "clear, unambiguous and unqualified": R v. Inland Revenue Commissioners, ex parte MFK Underwriting Ltd [1990] 1 WLR 1545, per Bingham LJ at 1570B. There has never been any communication to the Claimant that the decision would be withdrawn. The only communication in the present case was to the Tribunal and was to the effect that an application had been issued.
29. In any event if such a decision not to withdraw had been communicated, it could never, on the facts of this case, have amounted to an abuse of power. The disputed status of the Claimant's father and his ability to provide financial support could properly be argued to justify such a decision, had it been made and communicated.

Ground 3-Right to a fair trial and frustrate legislative objective (sic)

30. The Claimants argues that her statutory right of appeal has been "illegally subverted". She states that her right to challenge the decision to refuse her entry is conferred by Parliament and "protected" by Article 6 of the Convention. That is not a tenable argument and, in so far as it was pursued cannot succeed. Article 6 does not apply to immigration disputes: Maaouia v. France (2000) 33 EHRR 1037; MT (Algeria) v. Secretary of State for the Home Department [2010] 2 AC 110. In any event the Claimant does now, by the decision of 7 March 2013, have a new right of appeal.

Ground 4-failing to allow the Claimant an opportunity to know and challenge the decision to renege on its concession to withdraw the decision.

31. There was no such concession. There could therefore be no failure to provide reasons for any decision to make such a concession.

Ground 5-duplicity, bad administration and abuse of power.

32. This was a very mixed up ground of appeal. To argue duplicity, bad administration and abuse of power rolled up together does not assist by way of mutual support. It appeared to be being suggested that the poor administration in the conduct of this case amounted to both duplicity and bad faith designed deliberately to deny a right of appeal to this Claimant. They are extremely serious allegations and should not have been pleaded or pursued on the facts of this case. There was an attempt to re-define duplicity to suggest it meant no more than saying two conflicting things borne out of confusion. That is not a true definition of duplicity.
33. That there were errors made in this case has been conceded by the Secretary of State. There was no basis upon which to argue that those errors were anything more than just that: mistakes which should not have occurred. There was no basis in this case to argue that there had been "conspicuous unfairness" brought about by a concerted attempt to manipulate the process.
34. Reference is made to the case of R (Rashid) v. SSHD [2005] EWCA Civ 744 but not the later case of R (S) v. SSHD [2007] EWCA Civ 546. Per Hughes LJ in MM (Zimbabwe) v. Secretary of State for the Home Department [2012] EWCA Civ 135:

"17. [...] For my part, I would just add that it seems to me essential that citations of the line of cases, beginning with the R (Rashid) v. SSHD [2005] EWCA Civ 744 [sic], ought scrupulously to be coupled with the careful analysis of that decision given by Carnwath LJ in R (S) v. SSHD [2007] EWCA Civ 546. The Rashid line of cases concerns decisions of the Secretary of State which are held to be unlawful, in part because of a change of practice for which there was no justification, undertaken in circumstances of conspicuous unfairness and which could be described as an abuse of power.

18. We have not, of course, in this case explored every possible permutation, so it is wrong to rule out the possibility, but it seems to me open to very considerable doubt indeed whether that line of cases can ever have any application either to judicial errors or to administrative errors in the office of the Tribunal, such as those which my Lord has catalogued as unhappily having occurred here. Conspicuous unfairness is not, in other words, a freestanding ground on which a court can act in the absence of unlawful action on the part of the Secretary of State. [...]"

35. There is no basis in this case to support allegations of duplicity or abuse of power. Such bad administration that has been demonstrated does not begin to make out the deliberate manipulation of the process as alleged.

Ground 6-Aggravated and Exemplary Damages and Tort in Misfeasance of Public Office

36. There is no basis in this case for the award of any damages, let alone aggravated or exemplary damages. The claim for unlawful detention has not been pursued, in consequence there can be no award of damages. The suggestion that delay and distress can be remedied by the Court granting a right of entry is wholly untenable. The Claimant now has her right of appeal.
37. Accordingly, for the reasons given, this claim must fail.