QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the Application of: ALI ZAHID
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Katherine Olley (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 19 December 2013
Crown Copyright ©
The Hon Mr Justice Coulson:
2. OUTLINE CHRONOLOGY
3. PROCEDURAL HISTORY
"The claimant was removed to Pakistan on 1 October 2013. There is no adequate explanation as to why it has taken three weeks for this application to be made. I note that the claimant gave instructions for the claim to be made on 2 October 2013. In all the circumstances, whilst taking on board the start date of 28 October 2103 for the claimant's next course of study, I am not prepared to grant mandatory relief sought on an immediate basis."
"You have an arguable case that you were unlawfully removed from the UK. The Secretary of State admits that your un-particularised Article 8 claim ought to have been considered before you were removed. However I am refusing the interim relief sought because as a Tier 4 student who enter the United Kingdom on 2 August 2011 and has failed to particularise your Article 8 rights in your claim for judicial review, it is unlikely that that claim would have succeeded."
4. THE STATUTORY FRAMEWORK
(1) Section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act") provides:"10. Removal of certain persons unlawfully in the United Kingdom.This sectionnoteType=Explanatory Notes has no associated(4) 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—(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;(b) he has obtained leave to remain by deception; or(c) directions ("the first directions") have been given for the removal, under this section, of a person ("the other person") to whose family he belongs.(5) Directions may not be given under subsection (1)(a) if the person concerned has made an application for leave to remain in accordance with regulations made under section 9.(6) Directions may not be given under subsection (1)(c) unless the Secretary of State has given the person concerned written notice, not more than eight weeks after the other person left the United Kingdom in accordance with the first directions, that he intends to remove the person concerned from the United Kingdom.(7) If such a notice is sent by the Secretary of State by first class post, addressed to the person concerned's last known address, it is to be taken to have been received by that person on the second day after the day on which it was posted.(8) Directions for the removal of a person under subsection (1)(c) cease to have effect if he ceases to belong to the family of the other person.(9) Directions under this section—(a) may be given only to persons falling within a prescribed class;(b) may impose any requirements of a prescribed kind.(10) In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the 1971 Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule.(11) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force.(12) The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Secretary of State."
(2) Section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") provides:"82. Right of appeal: generalThis sectionnoteType=Explanatory Notes has no associated(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.(2) In this Part "immigration decision" means—(a) refusal of leave to enter the United Kingdom,(b) refusal of entry clearance,(c) refusal of a certificate of entitlement under section 10 of this Act,(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),(j) a decision to make a deportation order under section 5(1) of that Act, and(k) refusal to revoke a deportation order under section 5(2) of that Act.(3) …(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part."
(3) Section 92 of the 2002 Act provides:"92. Appeal from within United Kingdom: generalThis sectionnoteType=Explanatory Notes has no associated(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if—(k) at the time of the refusal the appellant is in the United Kingdom, and(l) on his arrival in the United Kingdom the appellant had entry clearance.(1A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter.(1B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2A(9) of Schedule 2 to the Immigration Act 1971 (c. 77) resulting from cancellation of leave to enter by an immigration officer—(a) under paragraph 2A(8) of that Schedule, and(b) on the grounds specified in paragraph 2A(2A) of that Schedule.(1C) This subsection applies to a refusal of leave to enter which specifies that the grounds for refusal are that the leave is sought for a purpose other than that specified in the entry clearance.(1D) This section also applies to an appeal against refusal of leave to enter the United Kingdom if at the time of the refusal the appellant—(a) is in the United Kingdom,(b) has a work permit, and(c) is any of the following (within the meaning of the British Nationality Act 1981 (c. 61))—(i) a British overseas territories citizen,(ii) a British Overseas citizen,(iii) a British National (Overseas),(iv) a British protected person, or(v) a British subject.
(4) This section also applies to an appeal against an immigration decision if the appellant—(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."
(5) Section 94 of the 2002 Act provides:"94. Appeal from within United Kingdom: unfounded human rights or asylum claim(4) This sectionnoteType=Explanatory Notes has no associated(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).(1A) A person may not bring an appeal against an immigration decision of a kind specified in section 82(2)(c), (d) or (e) in reliance on section 92(2) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) above is or are clearly unfounded.(2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded…
"Section 10(1)(a) Working in breach.
A person is liable to administrative removal under section 10 if found to be working in breach of a restriction or prohibition on employment. The breach must be of sufficient gravity to warrant such action.
There must be firm and recent evidence (within six months) of working in breach including one of the following:
- An admission under caution by the offender of working in breach;
- A statement by the employer implicating the suspect;
- Documentary evidence such as payslips, the offender's details on the pay roll, NI records, tax records, P45;
- Sight by the Immigration Officer, or by a police officer who gives a statement to that effect, of the offender working, preferably on two or more separate occasions, or on one occasion over an extended period, or of wearing the employer's uniform. In practice this should generally be backed up by other evidence…"
5. THE RELEVANT FACTS
(a) The first is what was called 'the case pro forma' which contained the following extract:"The facts of the case were referred to CIO Iveson who authorised service of IS151A as a worker in breach. Having considered all the information available she was satisfied that Ali Zahid was in breach of Section 10(1)(a) of the Immigration and Asylum Act 1999 (as amended) and therefore committed an offence under section 24(1)(b)(ii) of the Immigration Act 1971 (as amended) by virtue of the fact that he was working for Ifield Grill delivering leaflets.Having taken into account all the facts available she was satisfied that the prejudice that he may suffer was not such that it is unfair to serve him with form IS151A Notice to a Person Liable to Removal."
(b) The submission document (file number Z1092746) which, at section 3, contained the following details:"Subject encountered during a joint police/immigration at a roadside in Crawley. Subject was encountered riding a bicycle delivering pizza leaflets wearing a shirt with a logo of Ifield Grill in Crawley. Subject was spoken to by IO Smith of Sussex Immigration who interviewed subject using caution +2 and stated that he was studying at Queensbury College London and that he was working at Ifield grill on a work based placement. IO Perry of Sussex Immigration emailed the caseowner to ascertain whether subject was permitted to work. The case owner stated that as per subject's conditions he was not allowed to undertake any employment whatsoever. I have also spoken to Queensbury College where I was informed that as a college they do not provide work based placements under any circumstances. They also informed me the subjects' attendance at college was 56%.The facts of the case were referred to CIO Iveson who authorised service of IS151A as a worker in breach having considered all the information available he/she was satisfied with Ali Zahid was in breach of Section 10(1)(a) of the Immigration and Asylum Act 1999 (as amended) and had therefore committed an offence under Section 24(1)(b)(ii) of the Immigration Act 1971 (as amended) by virtue of the fact that he was working for Ifield Grill delivering leaflets.Having taken into account all the facts available she was satisfied that the prejudice he may suffer is not such that it is unfair to serve him with form IS151A Notice to a Person Liable to Removal."
(c) Ms Iveson's subsequent witness statement which confirmed that:"Based on the facts given to me by IO Smith at the time of the referral I was satisfied that Mr Zahid had been working in the United Kingdom in breach of his conditions and had therefore breached Section 10(1)(a) of the Immigration Act…I therefore authorised service of Home Office Form IS151A Notice to a Person Liable to removal and authorised his subsequent detention under paragraph 16(2) of Schedule 2 of the Immigration Act 1971."
6. THE THRESHOLD POINT
"9. The appeal therefore turns on the propriety of using judicial review to challenge the factual basis of a removal direction against which an out-of-country appeal lies to the AIT. We are no longer concerned with that aspect of the judgment below which addressed – and rejected - the argument that the court's only concern was with the rationality of the immigration officer's decision. The precedent fact which would have to be established in this case, by virtue of s.10(1), is that, having only a limited leave to remain, Mr Lim did not observe the condition which was attached to it…
13. It is well established, as the judge reminded himself, that judicial review is a remedy of last resort, so that where a suitable statutory appeal is available the court will exercise its discretion in all but exceptional cases by declining to entertain an application for judicial review: see R v IRC ex parte Preston  AC 835, R v Chief Constable of the Merseyside Police, ex parte Calveley  1 QB 424, R v Home Secretary, ex p Swati  1 WLR 477, R (Sivasubramanian) v Wandsworth County Court  2 WLR 475. The judge took the view that this case was exceptional. He adopted the ground, which Mr Kovats submits can be the only relevant ground in a case like this one, that the immigration appeals system was not equipped to address the particular features of the case. The judge held that "the alternative remedy does not provide fair, adequate or proportionate protection".
14. Mr Kovats submits that there is no proper foundation for such a finding. The rules permit an out-of-country appellant to be represented before the AIT, to cross-examine the immigration officers and to give his own evidence by videolink. The AIT's statistics show that the differential between successful in-country and out-of-country appeals is not great: 18% in the former case, 14% in the latter. The undoubted hardship of meanwhile losing one's job, income and home is an inevitable incident of the system laid down by statute and, while distressing, on no view unusual. Neither aspect of the case makes it exceptional."
(a) The defendant's failure to deal with the Article 8 claim;
(b) The defendant's failure to give notice of the removal in circumstances where she had said that there removal would not occur; and
(c) The defendant's failure to provide all the information sought by the claimant's solicitor in the letter of 10 September 2013.
7. THE PRINCIPAL JUDICIAL REVIEW CLAIM
8. THE OTHER GROUNDS FOR JUDICIAL REVIEW
9. THE ARTICLE 8 CLAIM
10. THE UNLAWFUL NATURE OF THE DECISION TO REMOVE