England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil and Family Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		4th July 2014

1. MR JUSTICE HICKINBOTTOM: In this claim for judicial review the Claimant, Dr Adil Razoq, originally sought to challenge a considerable number of decisions by the Secretary of State with regard to his immigration status etc, on many grounds. On 23 January 2014, on the papers, His Honour Judge David Cook refused permission on all of those grounds.
2. The Claimant renewed his application; and, at a hearing on 21 February 2014, Andrews J refused permission on all grounds save one, a ground that had not apparently been relied upon previously by the Claimant in his summary grounds or indeed elsewhere. Andrews J helpfully set out the ground in her Order, as follows:

"The Claimant had a legitimate expectation that upon the signing of the consent order in Case Number CO/11450/2012 dated 29 November 2012, the Defendant had re-instated the Claimant's refugee status and would not seek to revoke the Claimant's asylum (refugee) status upon the same grounds as previously."

Thus, the later decision of the Secretary of State on 23 July 2013 to revoke the Claimant's refugee status on the same grounds as before was, it is said, unlawful.

3. The Claimant does not accept that he was properly convicted of offences to which I shall later refer, which led to a deportation order against him; nor does he accept that there are anything but good grounds for him retaining refugee status in the United Kingdom in any event. During the course of lengthy submissions he has made today, he has referred to those other matters at considerable length. However, it is important to mark at the outset that that single ground with which I am concerned is discrete and narrow. As a result, although the Claimant's immigration history is lengthy, I can deal with the background facts relatively briefly.
4. The Claimant arrived in the United Kingdom on 12 May 2002 covertly in a lorry, and he claimed asylum two days later. His story in support of that application, as largely reflected in his later evidence to the tribunal, was as follows.
5. He said he was from Syria. His mother was Syrian, but his father was Kurdish. By reason of his ethnicity, he was the subject of discrimination in Syria. For example, in addition to being denied Syrian nationality, he was denied access to higher education and therefore he left school at 15 years of age from when he became a trader. When he was about 22, he met an Arab whom he wished to marry – but there was opposition to this because, as he was part Kurdish, their children, like the Claimant himself, would have been denied Syrian nationality. In an attempt to obtain Syrian nationality, he approached Abdullah Ocalan, the Kurdish leader of the Kurdistan Workers Party, who agreed to help him by putting his name with others to the Syrian President with a view to obtaining a grant of nationality from him. The President was at that stage apparently somewhat supportive of Mr Ocalan. However, when reports arrived of Mr Ocalan being arrested in Turkey having been betrayed by the Syrian Government, the Claimant spoke out against that government; and he was arrested on 7 March 1999. He was detained and tortured, mainly at Tudmor Prison, until about 20 April 2002, when he escaped during the process of being transferred to another prison. With the assistance of others, he escaped to Turkey and thence by lorry to the United Kingdom.
6. The Claimant's application for asylum on that basis was refused by the Secretary of State, but allowed by the Immigration and Asylum Tribunal on 26 September 2003, in a determination to which I have already referred. On the basis of that determination, he was granted refugee status on 13 November 2003.
7. In 2009, the Claimant was arrested on suspicion of committing offences of dishonesty in relation to his work as a locum doctor at a number of Midland hospitals. During the course of police enquiries into these offences, various documents were seized at his home address, including a Syrian passport (renewed most recently in 2001 and due to expire on 31 December 2002, from which the pages normally used to record travel had been removed and which gave his profession as "Doctor"), a Syrian registration card as a doctor dated 26 June 1997, a Saudi Arabian registration card as a doctor valid from 2001-04, and a Saudi Arabian driver's licence from 1997. None of those documents had been disclosed to the Secretary of State or the tribunal.
8. Whilst under arrest on those charges, on 18 January 2010 the Claimant married Ms Senada Ziga, a Danish national.
9. The Claimant is indeed a doctor; but he is not as qualified as he had suggested. On 27 May 2011, at Ipswich Crown Court, he was convicted of seven counts of dishonestly making false representations to the NHS in respect of his medical qualifications, thereby earning approximately £100,000 from January 2007 to November 2008; and he was sentenced to 2 years' imprisonment. At trial, the Claimant apparently gave evidence that he came to the United Kingdom to pursue his medical career. An appeal against conviction to the Court of Appeal (Criminal Division) was dismissed. The Claimant maintains that he was innocent in respect of each of these matters, and has been the subject of a miscarriage of justice due to institutional racism.
10. On 19 September 2011, the UK Border Agency ("the UKBA") on behalf of the Secretary of State wrote to the Claimant in prison, notifying him that, as a result of his conviction, he was liable to deportation; and a notice of liability to deportation was served on him the following day. On 26 March 2012, the UKBA invited him to put forward any reasons why he should not be deported to Syria on completion of his sentence. As I understand it, no response was made.
11. Under paragraph 339A(vii) of the Immigration Rules:

"A person's grant of asylum... will be revoked or not renewed if the Secretary of State is satisfied that... his misrepresentations or omission of facts, including the use of false documents, were decisive for the grant of asylum."

12. On 28 May 2012, the UKBA wrote to the Claimant again, notifying him of the intention to cancel his refugee status. On 11 June and 18 July 2012, Duncan Lewis Solicitors, instructed by the Claimant, made representations to the UKBA in that regard.
13. On 23 July 2012, the UKBA wrote two letters to the Claimant, one notifying him of the cancellation of his refugee status and the other notifying him of a decision to deport him. The former, a long letter, said that, contrary to the picture painted by the Claimant for his asylum claim (i.e. he was an undocumented and largely uneducated Kurd), the Claimant had demonstrated that, as an educated man with Syrian documents, even if he were a Kurd, he would not be at risk to return to Syria (see, especially, paragraphs 42 and 49 of that letter). It concluded that, but for the deception the Claimant had practised, he would not have been granted refugee status; and thus, under paragraph 339A(vii) of the Immigration Rules, that status would be cancelled. Therefore, the grounds upon which the Claimant's refugee status had been cancelled were made clear this letter, namely that that status had been obtained by deception that was material in the sense that he would not have been granted refugee status but for the deception. That decision was unappealable; although the letter made it clear that any subsequent decision (e.g. with regard to removal) would or might be appealable.
14. The Claimant completed the custodial part of his sentence of imprisonment the following day (24 July 2012), but he was immediately detained under immigration powers. He appealed against the decision to deport him that same day. On 7 August 2012, he was released from detention on bail by order of the First-tier Tribunal. The appeal was later discontinued in circumstances which, on the face of the documents I have, are not entirely clear. There is reference to the tribunal investigating its jurisdiction as to whether there has been an appealable decision. The Claimant says that the appeal was withdrawn because of the events to which I shall come in a moment.
15. On 19 October 2012, new solicitors instructed by the Claimant (Braitch Solicitors), wrote a pre-action protocol letter to the UKBA. This letter was, on its face, expressly written with his authority and indeed it enclosed a letter of authority from him, in these terms:

"To whom it may concern. This is to confirm that I wish to instruct Braitch Solicitors to represent me in connection with immigration. All information, documents and records should be made available to my solicitors."

That document was signed by the Claimant on 21 August 2012.

16. The pre-action protocol letter of 19 October said this:

"We note that you are alleging our client, Mr Razoq, deceived the Immigration Judge who allowed his appeal by:

1. Claiming he was uneducated and disadvantaged when, in fact, he was a doctor.

2. Claiming he was trying to obtain nationality documents when, in fact, he already had them.

3. Claiming he was in prison when, in fact, he was using his passport to travel internationally.

We believe a wrong and incorrect approach has been taken. We believe before concluding that deception was decisive a full analytical approach should have been taken to consider whether the additional evidence that was before the Immigration Judge would have altered the findings. This appears not to have been done and, therefore, in our opinion we believe the decision arrived at is flawed...

Action Required

1. We require immediate reinstatement of our client's refugee status.

2. Confirmation that his case will be considered in the light of the evidence.

3. Confirmation, whilst the review of our client's case is carried out, you do not require us to lodge an application for judicial review and any delay point will not be taken up with the Admin Court should you reconfirm your decision to cancel our client's refugee status should we thereafter be required to lodge an out-of-time application ...".

17. Therefore, Braitch appeared to accept that the Claimant had practiced deception on the UKBA, but suggested that the UKBA had adopted an unlawful approach with regard to whether the deception was material in the sense that, but for it, refugee status would not have been given. They sought reconsideration of the decision with regard to the Claimant's refugee status using the correct approach; and, pending the new decision on that reconsideration, reinstatement of refugee status. The letter, on its face, did not presume as to the decision that might be made on that reconsideration – indeed, it clearly envisaged that the decision might be the same, because it reserved rights as to judicial review – and it certainly did not presume that, on reconsideration, the Secretary of State would not take into account the Claimant's deception when he obtained refugee status originally. Indeed, it clearly envisaged the decision-maker would take that into consideration as a material consideration. Reconsideration was sought in respect of the earlier finding that the Claimant's deception in the appeal before the adjudicator which led to the grant of refugee status was decisive.
18. Braitch asked for a response to the letter before action by 22 October 2012. The Secretary of State did not respond by that date. On 25 October, the Claimant acting in person issued a judicial review claim (Claim No CO/11450/2012) challenging the Secretary of State's decision of 23 July 2012 to cancel his refugee status on the basis that it was "procedurally improper" and "irrational (unreasonable)". Although those grounds referred to procedural impropriety, the focus of the case was substantive, i.e. that, on the merits, the Claimant was entitled to continued refugee status. Those proceedings were served on the Treasury Solicitor in the usual way.
19. However, although they were not on the record in the proceedings, on behalf of the Claimant and with his apparent express authority, Braitch continued to conduct correspondence with the UKBA. The UKBA Criminal Case Directorate in the form of Ivor Mazzanti (a Senior Case Worker) responded to Braitch's letter before action on the 9 November 2012, agreeing in essence to the course Braitch had proposed, in these terms:

"After considering the Home Office File for Mr Razoq it can be agreed that Mr Razoq's refugee status should be re-instated and that at present he remains a refugee in the United Kingdom. I will withdraw the cancellation letter of 23 July 2012. However, reconsideration will be given to whether Mr Razoq should remain as a refugee in the United Kingdom and we write to you separately about this issue."

20. In a statement dated 9 July 2014, Mr Mazzanti sets out why he agreed to that course. He says that he did not agree with Braitch that the approach to the original exercise was wrong; but he (in the event, mistakenly) thought that the deportation order had not been served with notification of cancellation of status. The relevant Secretary of State guidance required the two documents normally to be served at the same time. Out of an abundance of caution, he therefore considered the whole process for cancellation of status should start again. However, there is no suggestion that the reconsideration should exclude consideration of the Claimant's deception when he obtained his status. Indeed it was abundantly clear, looking at the correspondence as a whole, that that would lie at the very heart of the reconsideration.
21. At some stage between 9 and 21 November 2012, there were telephone conversations between Mr Daniel Marlo on behalf of the Treasury Solicitor and Mr Razoq personally, to which I shall return.
22. On 21 November, in the proceedings, Mr Marlo wrote to Mr Razoq personally, as he had no solicitors on the record in the claim, in these short terms:

"I write to invite you to withdraw these judicial review proceedings on the basis that my client has reinstated your refugee status. I enclose a consent order for you to sign and return to me for filing with the court."

23. When seen in the context of earlier correspondence and the fact that it was sent only just a few days after Mr Mazzanti's letter, it seems to me that there can be little doubt that the letter of 21 November was sent in pursuance of the agreement that the parties had reached in correspondence. A draft order was enclosed with Mr Marlo's letter, reciting that the Secretary of State had reinstated the Claimant's refugee status and granting the Claimant leave to withdraw his claim. The Claimant duly signed that draft, and the Order was sealed by the court on 23 November 2012. That of course is the Order referred to in the ground of challenge sanctioned by Andrews J.
24. Shortly afterwards, on 2 December 2012, the Criminal Casework Directorate did indeed start again the whole process for cancelling the Claimant's refugee status, by sending a letter to Braitch on behalf of the Claimant indicating the Secretary of State was considering the cancellation of his refugee status and asking for any representations. Braitch responded on 12 December. They indicated that the Claimant had had difficulties attending their offices; but they were still representing him, referring to him as their client and forwarding submissions on his behalf in the form of copy bundles previously submitted.
25. On 4 March 2013 Mr Razoq wrote to the UKBA authorising his wife (Ms Ziga) to be his representative in respect of the issue, and so she took over the conduct of the correspondence on his behalf.
26. On 25 July 2013, the UKBA wrote to Ms Ziga with the result of their consideration of the Claimant's refugee status stating that, in their view, if the Claimant's passport and other documents had been available to the adjudicator in 2003, then the Secretary of State would not have reached the decision as to refugee status that he did reach; and that the Secretary of State had decided to cancel that status. The grounds for cancelling the Claimant's status were therefore essentially the same as those for which the UKBA had originally cancelled it. It is of course the decision of 25 July 2013 that the Claimant now challenges on the ground that, in November 2012, the Secretary of State had reinstated the Claimant's refugee status on the basis of a promise she would not seek to revoke that status upon the same grounds as she had revoked it on 23 July 2012, which gave rise to a legitimate expectation in the Claimant that she would not do so and which it was thus tantamount to abuse of power for the Secretary of State now to renege upon.
27. To complete the chronology, on 12 October 2013, the Claimant applied for a Residence Card on the basis of his EC citizen spouse. That application was refused on 16 January 2014, with a right of appeal.
28. Generally, where an administrative decision is quashed or (as here) withdrawn, the decision-maker is free to reconsider and redetermine the decision in light of all material considerations prevailing at the time of the new decision (see, e.g., R (Besnik Gashi) v Secretary of State Home Department [1999] INLR 276 at [50] per Lord Phillips MR). However, the decision-maker may be constrained in the factors he takes into account on the reconsideration if he makes a representation to a person with appropriate interest in the decision – that, when read in context, is clear and unequivocal – that he will not consider certain otherwise material considerations; and that person reasonably relies upon that representation. In those circumstances, public law may regard reliance by the State on its strict legal powers to be an abuse of power, which the court will step in to prevent.
29. This constraint can only arise where there has been a clear and unequivocal representation or promise. Whether there has been such a representation or promise depends on what the relevant officer of the State said, seen in full context. In this case that context, of course, includes the correspondence that was passing between the Claimant's solicitors and UKBA. Although Braitch were not on the solicitors on the record in 2012 claim, they were ostensibly corresponding with UKBA on behalf of the Claimant: as I have described, their letter of 19 October was accompanied by a letter of authority from him, authorising them to act for him in immigration matters. That letter sought reconsideration of the Claimant's case, and notably the finding by the Secretary of State that the Claimant's deception was decisive in the original application. Therefore, the Claimant through his solicitors specifically sought a new decision which took into account his deception but with a view to persuading the decision-maker that it was not decisive, and therefore the mandatory effect of paragraph 339A did not apply. He sought the reinstatement of his refugee status, pro tem, simply to maintain that status pending the new decision. It is clear that that is the basis upon which reinstatement was sought because there is express reference to the reservation of the Claimant's right to judicially review any new decision made on the same basis as the earlier decision – as the solicitors were concerned about delay in issuing proceedings if, in respect of the Claimant's status, the UKBA came to the same conclusion on the same ground and on the same material.
30. Mr Mazzanti's letter of 9 November was, clearly, responding to that request – and positively so. It was clear from that letter he intended to review the Claimant's refugee status on all the material, including that upon which the earlier decision was made – as Braitch envisaged, at best, would happen.
31. The Claimant seeks to distance himself from correspondence sent by Braitch ostensibly on his behalf. He says that he instructed Braitch only in relation to the tribunal appeal, and did not instruct them in relation to the judicial review proceedings, nor specifically in relation to the pre-action letter which they sent. It seems that he accepts that he had discussions with that firm of solicitors with regard to the judicial review; but he does not accept that they had the instructions they purported to have.
32. I do not have any evidence from Braitch as to their instructions. However, the UKBA receiving the correspondence from Braitch to which I have referred were clearly entitled to assume that that firm of solicitors had instructions from the Claimant to write to them in the terms that they did. Furthermore, Braitch wrote to UKBA again, on 12 December 2012, in response to the letter of Mr Mazzanti of 2 December, purporting still to act in the correspondence for the Claimant: that makes it clearly reasonable for the Secretary of State to continue to believe that they were instructed in relation to that correspondence.
33. In the letter of 12 December, Braitch did not suggest that the UKBA were restricted in the material considerations to which it had regard. Far from it. Braitch referred the UKBA back to the earlier submissions on those very considerations. The Claimant's own solicitors were apparently not under the impression that the Secretary of State had made any promise as to restricting the scope of any future reconsideration of the claimant's refugee status. They clearly understood that the decision-maker was going to focus on whether the deception of the Claimant was decisive in the original grant of asylum, as they had asked in their original request. That correspondence was sent by the Claimant's solicitors as his agent, and he cannot now simply disavow it.
34. For those reasons, the representation relied upon for a legitimate expectation is to be considered on an objective basis, as to whether, looked at in context, what was said by the State was reasonably open to a clear and unequivocal promise. In respect of the documents to which I have referred to date, it is not arguable that it was.
35. However, the Claimant submits that matters did not end there. I have referred to conversations that took place between the Claimant and Mr Marlo, who was dealing with the matter at the Treasury Solicitors. In his submissions received by the court on 1 July 2014, the Claimant indicated by way of further evidence (as I understand it, for the first time), that he and Mr Marlo had had important conversations before Mr Marlo's letter of 21 November 2012. He says this:

"… [V]ery crucially the Defendant through their solicitor Mr Daniel Marlo explicitly stated to the Claimant in 2 phone conversations in the clearest of words that if the Claimant consented to discontinue his JR (and the Appeal) that would be 'the end of the matter' and his 'immigration file would be closed permanently'. The Defendant out of extra caution put explicitly the question to Mr Marlo 'does that mean I get my asylum back permanently?' and Mr Marlo's answer was 'of course you discontinue the cases we are re-instating your asylum and that's the end of the matter'."

36. That evidence was received by the Treasury Solicitor very recently indeed. Mr Marlo has responded to it in a statement dated today, 4 July. He indicates that he only saw the Claimant's statement today, at this hearing. His statement is handwritten, but it contains the full rubric; and Mr Razoq has seen it, and has been given a full opportunity to respond to it. The statement says:

"At no time did I give any indication in telephone conversations with Mr Razoq, either explicitly or implicitly, as to what would happen to his Home Office file. I had no instructions from my client as to what they intended to do, once they re-instated Mr Razoq's refugee status. At the time I was without any instructions as why the SSHD was in fact re-instating the refugee status of Mr Razoq. Consequently the only indication I gave, or could have given to Mr Razoq, was in relation to the judicial review litigation under foot at the time. Any indication that I gave the matter coming to an end was only in relation to the litigation in which I was instructed." (emphasis in the original).

36. The Claimant in his response to that evidence says that that is simply not right: Mr Marlo made it clear to him that he would get his asylum back permanently, and that would be the end of the immigration matter. In support of that, the Claimant relied upon the Acknowledgement of Service which Mr Marlo had completed in this claim. That, he submitted, suggested (wrongly) that the Secretary of State was considering outstanding asylum representations from the Claimant: that, the Claimant submitted, was an underhand attempt by Mr Merlo to get rid of the judicial review without there being any consideration of its merits. That is reflected, he said, in my observations in the order of the 6 December when I said:

"In her Acknowledgement of Service the Secretary of State has agreed to make a decision on the Claimant's claim for leave which will, if adverse, trigger a right of appeal, although she apparently has not given any timetable for such decision. That may give the Claimant the relief he seeks in this claim, but it may not. I have given directions requiring the Claimant to respond to the Secretary of State's offer by 13 January 2014, failing which permission to proceed will automatically be refused. If the Claimant responds to the court, then the papers should be put before a judge promptly."

37. The Acknowledgement of Service, which is a short document, does refer to an immigration decision in the future, in these terms:

"The Defendant has agreed to issue the Claimant with an immigration decision which if adverse will entitle him to an in-country right of appeal. On that basis, the Claimant has been invited to withdraw his judicial review application in an open letter (copy attached) was sent to the claimant's solicitors on 13 November 2013. A response is still awaited. It is hoped that the parties shall agree a consent order to withdraw the judicial review application."

38. Although the Secretary of State's letter to the Claimant dated 12 November 2013 refers to the Secretary of State's agreement to "to issue… a new immigration decision in response to [the Claimant's] outstanding asylum representations", Mr Mandalia pointed out that, at that time, there were no outstanding asylum representations, only an outstanding application for leave to remain on the basis of his marriage to an EEA citizen for which the Claimant applied on 12 October 2013 (see paragraph 27 above). In the very limited time he had to obtain instructions, Mr Mansdalia said that he understood that the Acknowledgment of Service in fact referred to that. But in any event, the Acknowledgement of Service goes on to say that, if a consent order were not filed within 28 days, the Treasury Solicitor would provide the court with an update regarding the settlement of the matter; and reserved the Secretary of State's right to provide further summary grounds in the event a settlement could not be reached and the judicial review is to proceed. I do not accept that this was an attempt by Mr Marlo to get rid of the judicial review proceedings in an underhand manner without grappling with the merits.
39. Having considered all of the evidence, I am quite satisfied that Mr Marlo's version of the telephone conversations is true; and that he did nothing to suggest to Mr Razoq there the future reconsideration of his refugee status would exclude consideration of the deception which had driven the earlier decision.
40. The promise made by the Secretary of State in late 2012 was that she would reconsider the Claimant's refugee status, and in particular whether his deception was decisive in the original grant of asylum as the Claimant through his solicitors had requested. That was the basis upon which the first judicial review was compromised by the Consent Order of 29 November 2012. There is thus simply no proper basis for the suggestion that there was a legitimate expectation engendered by the Secretary of State that she would exclude the Claimant deception from the reconsideration. That is the only ground upon which permission to proceed was granted for the claim.
41. For those reasons, this claim must fail. Indeed, on the basis of the evidence and submissions before me, the Claimant has fallen very far short of succeeding in his case.