England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14 May 2013

THE DEPUTY JUDGE:

1. I have reflected on the case since argument concluded this morning and reached the conclusion that I must dismiss the claim. I will now give my reasons.
2. The claimant is a citizen of India, born in November 1988. She entered this country in December 2010 as a Tier 4 student migrant with leave subsisting until May 2012. On 23 March 2011, well within the period of her then current leave, she applied for leave to remain as a Tier 1 (general) migrant. The application was under the points-based scheme governed by paragraph 245C of the Immigration Rules. The points that she required were: 80 under Appendix A for attributes; 10 under Appendix B for proficiency in the English language; and 10 under Appendix C for ability to maintain herself.
3. The claimant's entitlement to points under the scheme was dependent upon the production of documents. In this regard, Immigration Rule 245AA provided as follows:

"(a) Where Part 6A or Appendices A to C, or E of these Rules state that specified documents must be provided, that means documents specified by the Secretary of State in either the Points Based System Policy Guidance, or for applications for settlement the application form and accompanying guidance, as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence.

(b) If the Entry Clearance Officer or Secretary of State has reasonable cause to doubt the genuineness of any document submitted by an applicant which is, or which purports to be, a specified document under Part 6A or Appendices A to C, or E of these Rules and having taken reasonable steps to verify the document, is unable to verify that it is genuine, the document will be discounted for the purposes of this application."

4. The documents submitted by the claimant included: a bank statement relating to her account with the State Bank of India; a reference letter, said to be from a client named Dhaneshwari Sevabhavi Sanstha; some accounts and a letter said to be from ES Gupta & Co, chartered accountants; and a degree certificate and associated documents from the Chhatrapati Shahu Ji Maharaj University.
5. The Secretary of State had these documents sent to the visa section of the High Commission in New Delhi for checking. It is not clear to me whether she had doubts about the authenticity of the documents before they were sent or whether this was a routine procedure. In either case, the Secretary of State was clearly entitled to have any documents supplied with such an application scrutinised. The person who performed the scrutiny described him or herself as working as a visa supporter assistant in the visa section of the High Commission and said that it was part of his or her daily duties to examine and check documents produced in support of entry clearance applications. Obviously this was not an entry clearance application, but one can see that the checking procedure is very similar.
6. There has been no witness evidence from either party and neither party has shown me the documents that I have referred to (which are the documents that this dispute revolves around). The verification report produced by the High Commission official appears to be dated 26 September 2011, some 6 months or so after the claimant made the application for leave as a Tier 1 general migrant. Mr Malik on behalf of the claimant relies in support of his case on the fact that the Tier 1 route to leave had closed in the meantime; it had been abolished shortly after the claimant made her application in March 2011.
7. I have seen the verification report. It was seen by the claimant for the first time when it was attached to the Secretary of State's summary grounds of defence. It begins by saying under the heading "Brief background/additional comments":

"Hits risk profile - student UK to study [postgraduate diploma] in Business Management, switching to T1 General.

Seems a bit young to do a Bachelors degree (under 18 years at start of course).

Degree certificate look more than 3 years old.

Earnings are extremely high and are for IT/business related services - a field in which the applicant has no qualification and is not old enough to have relevant experience."

I have mentioned the claimant's year of birth. She was a couple of months under 23 years old at the date the report was compiled and had left India 9 months earlier, in December 2010.

8. The report detailed the steps that had been taken by way of verification. In the case of the bank account the report gave the account name and the account number and verified that they were correct, as were some transactions shown on the bank statement. It went on to explain that the official had telephoned a number obtained through an internet search and had spoken with the branch manager, who confirmed the details of the accounts and the transactions.
9. In the case of the reference letter from the client, the verification failed. Three telephone numbers had been given on the reference document and the official reported having attempted to telephone on four separate dates, making three calls on three of the dates and four on one of them. On no occasion was the telephone answered.
10. In the case of the chartered accountant it was reported that no contact details had been given, that a web search revealed nothing and that no contact number was given on the documentation; the report then said "no response received to the e-mail sent". I infer that an e-mail address had been given on the accountant's documentation and that the official e-mailed it. I find it likely that this was done on the first day on which the official started making the telephone calls, namely 21 September. The report went on to say that the accountant's membership number (I take it, of the Indian Chartered Accountants' Institution) had been verified on the Institution's website as being in the name of a Mr Gupta.
11. Finally in the case of the University, where the verification was again inconclusive, it was reported that two telephone numbers had been obtained through an internet search: a pair of numbers for the Vice-Chancellor and a further telephone number for the Registrar. The official reported attempting to make the same number of calls, on the same days, as in the case of the claimant's client; the telephone was either engaged or not answered.
12. Some three weeks later, on 18 October 2011, the Secretary of State gave her decision to refuse the application for leave to remain as a Tier 1 general migrant. The decision letter explains the points score that the Secretary of State accorded to the claimant and the reasons for it. Under Appendix A to the Rules, regarding attributes, the claimant required 80 points to qualify and had claimed 85. In respect of her age, the 20 claimed points were awarded. In respect of qualifications, no points were awarded as against 30 claimed, the decision saying:

"You have claimed 30 points for Qualifications under Appendix A of the Immigration Rules and have provided a degree certificate then and associated documents in support of your application. Following enquiries with Chhatrapati Shahu Ji Maharaj University, Kanpur, we have been unable to establish if the degree certificate is genuine. The Secretary of State is therefore not satisfied that you have provided the specified documents required under Appendix A of the Immigration Rules and it has therefore been decided that you have not met the requirements to be awarded points for Qualifications under appendix A of the Immigration Rules."

13. As regards previous earnings, also under Appendix A, the claimed points of 35 were not awarded. In that connection the decision said that the claimant had:

"...provided accounts and an accountant letter, reference letter, tax documents and bank documents in support of your application. Following enquiries with your client ... and your accountant ... we have been unable to establish if the accounts, accountant letter and reference letters are genuine. The Secretary of State is therefore not satisfied that you have provided the specified documents required under Appendix A of the Immigration Rules...."

14. Under Appendix B, proficiency in the English language, no points were awarded against a claim of 10, the reason given being the failure to make contact with the University; the box of text on the decision letter was materially identical, mutatis mutandis, to the one I have already read. Under Appendix C (funds) 10 points were awarded, it would seem on the basis of the bank statement.
15. The decision letter went on to state, correctly, that there was no right of appeal against this decision under section 82 of the Nationality etc Act 2002 and no entitlement to an administrative review. Mr Malik, for the claimant, relies on those matters adding that since (as I have already mentioned) the Tier 1 route had been abolished while the application was under consideration, there was no possibility of applying afresh.
16. A claim form for judicial review was filed in February 2012 and issued in April. It sought judicial review on two grounds, the first being procedural unfairness and the second being that the Secretary of State should have considered departing from her policy. In May 2012, HHJ Bidder QC gave permission on the papers. He said:

"It is arguable that in failing to inform the applicant about her official's failure to verify the documents submitted by the claimant, and to afford her an opportunity to make representations, the defendant failed to comply with paragraph 245AA of the Immigration Rules and that her decision was procedurally unfair."

It is those two grounds that Mr Malik advances today. The judge went on to say that he did not consider the second ground (departure from policy not considered) to be arguable, and Mr Malik has not pursued it. The judge subsequently clarified that his first observation, referring to paragraph 245AA of the Rules, was a reference to the provision about taking reasonable steps to verify documentation. For my part, I would have found that obvious anyway.

17. In his skeleton argument and his oral submissions Mr Malik has advanced the two-pronged challenge for which the judge gave permission. It is encapsulated in paragraph 9 of his grounds where he puts it as follows:

"9. If the SSHD has reasonable cause to doubt the genuineness of any document submitted by an applicant which is, or which purports to be, a specified document, common law obligation to act fairly requires her to put her doubts to the applicant and invite submissions before refusing the application. Further, Paragraph 245AA permits the SSHD to discount a document if (and only if) 'having taken reasonable steps to verify the document, is unable to verify that it is genuine'. The very first reasonable step in such circumstances would be to inform the applicant in question. It is simply not open to the SSHD to refuse the application in this manner."

18. It is common ground that the Secretary of State was under a duty to act fairly; there is abundant authority for that. It is also common ground that Immigration Rule 245AA(b) applies in this case. The issue is whether the duty of fairness extends as far as Mr Malik contends and, under Rule 245AA, whether reasonable steps were taken or not. In relation to the Rule there is a sub-issue as to whether it is for me to decide whether reasonable steps were taken or whether that is to be approached by me on a Wednesbury basis. Mr Malik submitted it was a question for me to answer, whereas Miss Kate Olley for the Secretary of State submitted I could not go outside the orthodox judicial review grounds of illegality, irrationality and procedural impropriety. By implication, she submitted that this was an irrationality issue.
19. Without deciding that sub-issue, I apply the approach that Mr Malik contends for. It seems to me to be the approach that the First Tier Tribunal would take under section 84(1)(a) of the 2002 Act. I do not need to decide whether it is the right approach in judicial review or not because, even applying that approach, I have concluded that the claim does not succeed.
20. The two issues, the fairness issue in common law terms and the paragraph 245AA issue, seem to me to be very much two sides of the same coin; it seems to me that the Rule encapsulates the common law requirement of fairness in its application to the task of verifying documents. Nevertheless, the notion of "reasonable steps to verify" begs the question of what steps are concretely required. The authorities on common law fairness in this context are of course relevant to that, but I have found those that have been shown to me to be inconclusive on the question that I need to answer.
21. As regards the existence of a duty of common law fairness in this context, Mr Malik relied on paragraphs 13 and 14 of the decision of the Upper Tribunal in Patel v Secretary of State for the Home Department [2011] UKUT 00211 (IAC). In those paragraphs Blake J and Judge Batiste described the position as follows:

"13. Although the requirements of fairness always depend upon the context and the specific facts of the case, it is clear from Thakur and the authorities there cited that people making applications for an extension of stay are entitled to be treated fairly by the Secretary of State in determination of those applications.

14. We also note the discussion of procedural fairness in De Smith's Judicial Review (Sixth Edition 2007) at paragraphs 7-003 to 7-009. We accept the author's proposition that the law has advanced from imposing a public law requirement of fairness in particular situations, to the general proposition that wherever a public function is being performed there is an inference that the function is required to be performed fairly, in the absence of an express indication to the contrary."

22. The facts of the Patel case were described by the Upper Tribunal as follows:

"19. The salient facts in the present case are as follows:

1) The appellant was lawfully present in the United Kingdom with leave to remain as a student and was a bona fide student.

2) He made a bona fide application for an extension of stay as a student at a college which was an approved sponsor at the time of the application;

3) Unbeknown to the appellant the college was removed from the list of approved sponsors by the Home Office during the time it was considering the application;

4) Removal of the college from the list of sponsors was taken at about the same time as the decision to refuse the application, there was therefore no opportunity for the appellant to be informed of the consequences of his application of the respondent's action."

Against that ground, their conclusion was as follows:

"22. Where the applicant is both innocent of any practice that led to loss of the sponsorship status and ignorant of the fact of such loss of status, it seems to us that common law fairness and the principle of treating applicants equally mean that each should have an equal opportunity to vary their application by affording them a reasonable time with which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford sixty days for such application to be made.

23. Although we accept that there is no such policy for refusal cases, fairness requires that such cases be treated in broadly the same way. The applicant must be given an equal opportunity before refusal of application to amend it in the way we have described. This was clearly not done in this case. The Home Office knew that it had suspended the college in January 2010 but no one else did. The applicant could not have known that subsequently the college's status as an approved sponsor was revoked before his application for an extension of stay was decided.

24. It is obviously unfair for the Secretary of State to revoke the college's status after the application has been made when it was an approved sponsor and not to inform the applicant of such revocation and not afford him an opportunity to vary the application."

23. Mr Malik submitted that it was likewise obviously unfair in the present case to reject his client's application without affording her an opportunity to assuage the Secretary of State's doubts about the genuineness of her documents. He submitted that only the Secretary of State was aware of the contents of the document verification report and that it was obviously unfair, as in Patel, to refuse the application without giving the applicant an opportunity to make submissions on what was being alleged against her.
24. He also referred me to R v Secretary of State Home Department ex parte Doody and others [1994] 1 AC 531. I have not found that authority any help on the extent of the common law duty of fairness in the present case. It concerned the right of life sentence prisoners to make representations to the Home Secretary as to the period of their life sentence that they should serve in prison before being eligible for parole. It seems to have been accepted that such a prisoner did have the right to address the Home Secretary on the question of length of the penal term of the sentence (see 562H to 563B).
25. Mr Malik relied on Lord Mustill's formulation of requirements of fairness in that case in six propositions, of which Mr Malik drew my attention to the fifth and sixth, namely:

"(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer."

26. As regards the sixth proposition, I readily accept that if, in this case, fairness demands that the claimant have an opportunity to address the Secretary of State's concerns, it must follow that she had a right to be told what those concerns are. The question for me is whether she was required to be given the opportunity to address the concerns. I was also referred to Butt v Secretary of State for the Home Department [2011] UK UT (IAC). I have not found that case to be relevant to the issue I have to decide. It is about the ability of the First Tier Tribunal to review documentation adduced for the first time at an appeal hearing. Apart from the fact that it concerns documentation under the points based system, it has no relevance to the issue before me.
27. Miss Olley's skeleton argument for the Secretary of State relied on the wording of the consent form that the claimant had signed when she made the application. She consented to the UKBA requesting verification checks to:

"... check when the information and supporting documentation ... supplied ...from a bank or utility company is correct ..."

and confirmed that she understood that:

"... if the UK Border Agency has reasonable cause to believe that any document or documents ... submitted with this application are forged, fraudulent or not genuine, and the UK Border Agency has sought to verify the documents using processes specified by it but has not been able to verify them, no points will be awarded for these documents even if the UK Border Agency cannot prove that they are not genuine."

As to that, I agree with Mr Malik that the Secretary of State cannot cut down the requirement of common law fairness or the requirements of Immigration Rule 245AA by inserting particular wording into application forms. I come back to the question of the reach or extent of her duties at common law and/or under paragraph 245AA and, specifically, as to whether they extend to the duty contended for: namely, to put the results of the verification check and/or the Secretary of State's doubts to an applicant. Miss Olley's submission, in her skeleton argument, had been that the Secretary of State was under no duty to give what she described as a "second bite of the cherry", describing this as a cumbersome task.

28. Mr Malik countered that by relying on the particular circumstances of this case where, in addition to there being no appeal right and no entitlement to a review, there was also no possibility of a renewed application because of the abolition of the Tier 1 scheme. There would, he submitted, have been no hardship to the Secretary of State in giving his client the opportunity contended for, bearing in mind that the application process took seven months anyway (and I might add it took six months for the documents to be looked at in the High Commission). Mr Malik described his case as being analogous to Patel, where the approved sponsor status of the college in question had been removed during that claimant's application process.
29. The issues were argued on both sides at a somewhat abstract level. Miss Olley pointed out in her skeleton argument that the claimant has not told the court what she would have done to useful effect if given the opportunity for which she contends. As I have already observed, neither side chose to show me the contentious documents. I did canvas with Mr Malik how many times a claimant was required by fairness to be allowed to answer the Secretary of State's doubts; he submitted that one opportunity was sufficient, by analogy with the decision in the Patel case.
30. I do not find the Patel case helpful on the issue that I have to decide. It seems to me the facts there were significantly different. It is true that the revocation of the college's sponsorship in Patel, like the adverse verification report in the present case and the revocation of the Tier 1 route to leave, had taken place in the interval between the application and the decision. But the difference seems to me to be that the claimant in Patel had no involvement in or even knowledge of the withdrawal of the college's sponsor licence, which was the act of the Secretary of State only made public shortly before her decision in Mr Patel's case. It seems to me, with respect, to be easy to understand why the Tribunal in that case found it to be a requirement of fairness that Mr Patel be given an opportunity to name a different college sponsor.
31. In the present case, by contrast, the claimant was responsible for the documents that she put in. Mr Malik submitted that she had a right to, as he put it, "know the case against her". I have not found that submission persuasive in the present context. The right to know the case against one plainly arises where action with adverse consequences is being initiated by the state against the individual. The present case, by contrast, was one of an application initiated by the claimant seeking a benefit, and the selection of documentation to support it was a matter within her responsibility. I will come back later to the consequences of that distinction between the present case and Patel.
32. In considering the case I found it helpful to distinguish two possible types of opportunity that might theoretically be given to the claimant. I have done this for the purpose of considering in my own mind whether fairness requires either of them.
33. The first possible opportunity is an opportunity to assuage the Secretary of State's doubts with explanations of the problematic features of the documents and/or with further material to corroborate the documents. For example, Mr Malik suggested - in response to the point made in the verification report that, on the face of the degree certificate, the claimant had been very young when she started her university course - that, if given the opportunity, the claimant could have provided corroborating evidence; for example, documentation from her High School indicating the year in which she left and where she went on to.
34. On this point, I agree with Miss Olley that fairness in the present circumstances does not require an applicant to be given an opportunity to put in further documents on the grounds that documents already submitted are apparently dubious. This is a document-based procedure in which an applicant is responsible for the submission of documents. If there are doubtful features in documents submitted, I cannot see that fairness requires an opportunity to buttress the documents already put in with further documents. For much the same reason, I do not consider that fairness requires the giving of an opportunity to an applicant to give a narrative account of the context in which documents were created or an explanation of particular features of them.
35. The second form of opportunity that might theoretically be given, particularly in a case like the present where the verification exercise had ended in a failure of the High Commission to establish communication with the authors of some of the documents, would be an opportunity for the applicant to intervene to try and establish a line of communication. Mr Malik contended additionally for this form of opportunity in his reply.
36. I was, in this context, initially concerned by the Secretary of State's treatment of the university document. The genuineness of the university has not been called into question and, against that background, to reject the degree certificate on the mere grounds that the telephone line in a possibly under-resourced academic institution's office was often engaged or not manned might seem disproportionate. (Indeed, Mr Malik compared the High Commission official's apparent experiences with the university with the experience of people who try to telephone the UK Border Agency!)
37. If the sole ground of the refusal of leave to remain had been the High Commission's inability to contact the university by the methods attempted, I would have been tempted to hold that insufficient steps had been taken, not amounting to reasonable steps. It does not, all the same, seem to me that fairness would necessarily have required involvement of the claimant to break the deadlock. Rather, it seems to me, greater efforts might have fallen to be made at making contact with the university, for example by post or e-mail.
38. But the High Commission official's experiences with the university do not stand in isolation in this case. First of all there was the official's experience with the accountant, where no telephone number had been given on the correspondence. An e-mail had been sent by the official to the e-mail address given, and not answered. The official had verified the existence of an accountant of the same name (by examining the Chartered Accountants' Institution's database) but, in circumstances where the turnover in the accounts seemed implausibly high, there was an unresolved issue of whether the real Mr Gupta had prepared the accounts. A genuine accountant would respond to an e-mail address given by him, so the failure of that e-mail gave rise to strong doubts that the author of the accounts was the real chartered accountant named Gupta.
39. Similarly, the client who had given a reference was presumably a business, since the claimant's own business before leaving India had apparently been in IT or business-related services; the client had given three telephone numbers and there had been a repeated failure to answer the telephone on 13 occasions spread over four or five days. The Secretary of State could, it seems to me, reasonably conclude that both the chartered accountant documentation and the client documentation were not genuine. It therefore seems to me, at this stage applying an objective test rather than Wednesbury, that the Secretary of State had through the High Commission official objectively taken sufficient - and therefore reasonable - steps to verify the documents.
40. I understand that my decision will be disappointing for the claimant, particularly in circumstances where the withdrawal of the Tier 1 route deprives her of the opportunity to apply afresh. But I cannot agree with Mr Malik's suggestion that this additional fact generated a common law duty to do more than the Secretary of State did or, for that matter, added to the intensity of investigation required to satisfy the reasonable steps requirement of paragraph 245AA.
41. It seems to me that the standard of fairness, or of reasonable steps, has to be the same whether an applicant is in a position to renew her application or not. It would be wrong to suggest that a lower standard of fairness applied to the first category of case on the mere ground that it was possible to start the application procedure afresh.
42. I also consider that, were the duty contended for by Mr Malik to exist, it would be hard to see where the Secretary of State's obligations ended. Mr Malik said that one further opportunity to provide the further documentation or explanations was sufficient, but starting from his premise I find it hard to see why. I go back to his example of corroborating evidence from the secondary school; if there were some issue over its genuineness, similar to the issue that arose with the degree certificate, why would the obligation to allow the doubts over the university document to be assuaged not apply, on the second occasion, to the High School document? And so on and so forth. That is a practical consideration that reinforces me in my conclusion that, where a procedure involves the submission by an applicant of documents for whose selection she is responsible, the Secretary of State is not required to communicate her doubts about a document to such an applicant or give a further opportunity to the applicant to supply either more documents or explanations.