England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 November 2014

Helen Mountfield QC :

Introduction

The decisions under challenge

1. This is a challenge by an application filed on 28 August 2014 to three decisions communicated by the Defendant to the Claimant on 11 August 2014. The decisions were presented to the Claimant almost simultaneously, but the first to be served was the decision to remove the Claimant from the United Kingdom ('the removal decision'), followed almost immediately by a decision to refuse to vary his pre-existing leave to remain as a Tier 4 (General) Student ('the refusal decision'). The third was a decision to detain the Claimant ('the detention decision'). He was, indeed, detained between 11 August 2014 and 1 September 2014 pending removal. It is common ground that it is only if the challenge to either the removal or the refusal decision succeeds that the challenge to the detention decision arises.

Procedural history

2. The challenge is brought by permission granted by Mrs Justice Lang. On 15 September 2014, she granted permission and ordered that the claim be expedited and heard before 7 November. It is apparent from her written reasons that she incorrectly understood that the Claimant was still in immigration detention. Since that decision, there have been unsuccessful attempts by both the Defendant and the Claimant to wrest the determination of the substantive claim from the hands of a single Administrative Court judge. First, on 30 September 2014, the Defendant applied to have the matter transferred to the Upper Tribunal. She repeated submissions made in the Summary Grounds of Defence as to why the matter was not apt for determination in the Administrative Court; pointed out that the Claimant was no longer in detention; and asked for the hearing on 5 November 2014 to be vacated since, it was submitted, the case was more apt for determination by the Upper Tribunal. This application was refused by Dingemans J on 27 October 2014. Then, on 30 October 2014, the Claimant's solicitors wrote to the court saying that this was a test case which would 'undoubtedly affect thousands of similar/potential cases' and in the circumstances, asking for the matter to be listed before a Divisional Court or 'a full High Court' by which they apparently meant a panel of two or three judges. That application was opposed by the Secretary of State, and had not been determined by the time of the hearing on 5 & 6 November 2014. By the date of that hearing, which took place before a single deputy High Court judge, no one sought to suggest that I should adjourn the hearing. There was, however, as explained below, a live issue as to whether the Administrative Court ought to determine the merits of the application at all.

Background

3. It is a condition of receipt of leave to remain as a Tier 4 General (Student) Migrant awarded under the Points-Based system in Part 6A of the Immigration Rules that an applicant can prove an adequate aptitude in speaking and writing in English to acquire the requisite number of points for this. On 10 February 2014, a BBC 1 Panorama documentary disclosed a major problem with the administration of English language tests for the purpose of making applications for leave to remain by an organisation called Educational Testing Services ('ETS'). At ETS English language test centres, tests were undertaken by persons subject to immigration control to establish their English language aptitude. The BBC investigation revealed, by the use of covert recording devices, that there was significant and widespread fraud in the taking of such tests. In particular, oral English tests set by ETS taken via a computer link were sat not by the actual candidate, but by 'proxy' test takers. In a written Parliamentary answer on 14 July 2014, Mr James Brokenshire, a Home Office minister, said that enquiry was ongoing, but analysis to that date suggested that there were more than 29,000 invalid results and more than 19,000 questionable results from tests administered by ETS in the United Kingdom.
4. Following the Panorama broadcast, ETS undertook a review of the validity of test scores awarded by it at various test centres in the United Kingdom. The Defendant's evidence before me explained that this review involved examining recordings of the candidates' answers in the 'speaking' elements of the test. When voice recognition software indicated that the same voice had been used for a number of tests, the test results were flagged as suspicious. They were then separately verified by two members of ETS staff who had training in voice recognition. Only if the computer software and both human verifiers independently concluded that the same voice had been used, the test was held to be invalid on the basis that a proxy had been used. On 20 June 2014, ETS informed the Defendant that a number of test scores had been cancelled as invalid. The Claimant was one of those whose scores were treated as invalid in this way.

The Claimant's circumstances

5. The Claimant is a Pakistani national who, until the impugned decisions were taken, had leave to remain in the United Kingdom from 2011 as a Tier 4 (General) Student Migrant under the Points-Based system. The Claimant's original application for leave had been accompanied by a certificate provided by ETS which stated that he had undertaken and passed an English language test, in which he had obtained 100% in the speaking element. The original leave was due to expire on 30 December 2013, but the Claimant applied to renew it on 29 December 2013. This had the effect of extending his leave under section 3C of the Immigration Act 1971 ('the 1971 Act') pending a determination of the application for renewal.
6. However, following the ETS notification on 20 June 2014, the Defendant concluded that the Claimant was someone who had used deception to seek leave to remain. It was on the basis of that conclusion that the Defendant reached the impugned decisions in this case.
7. Early on the morning of 11 August 2014, immigration officers served the removal and refusal decisions on the Defendant at his home. The removal decision was served at 6.19am and dated 11 August 2014. The removal decision stated that the Defendant had decided to remove the Claimant under section 10(1)(b) Immigration & Asylum Act 1999 ('the 1999 Act') as someone who had used deception in seeking leave to remain.
8. The refusal decision was served at 6.21am. That decision was dated 7 July 2014, but stated that the Defendant had decided to refuse the Claimant's application to continue his leave to remain and that 'in view of the earlier section 10 removal decision, you do not have a right of appeal against this decision – see section B' (emphasis added).
9. Section B of the refusal decision, headed 'Right of Appeal' stated:

'This decision is not an immigration decision under section 82. Section 82(2)(d) [of the 1999 Act] concerns 'a 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'. This is not the situation in this case, as the effect of the prior section 10 decision means that any existing leave to enter or remain in the United Kingdom was invalidated under section 10(8) so you have no leave to enter or remain at the time the decision to refuse to vary leave to remain was notified'.

10. The Claimant was taken into immigration detention. On 26 August 2014, directions were set for his removal on 31 August 2014. However, following service of the application for judicial review, removal directions were cancelled and on 1 September 2014, the Claimant was released.
11. The Claimant has made a witness statement in these proceedings in which he denies having cheated in his ETS test, or having used a proxy tester.
12. This claim is one of a number which I understand to be pending either in the Administrative Court or the tribunal system which arise from variation or removal decisions taken in the light of the widespread ETS deception disclosed in the Panorama disclosure. The fact of such widespread deception (which does not appear to be in dispute) does not in itself, of course, prove that any individual was a participant in it.

The Legal Framework

Relevant legislation

13. For those subject to immigration control, leave is granted or refused under section 3 of the 1971 Act. Grants of leave for a finite period can be extended, and if an application to extend a period of leave is made during the currency of an existing one, the application itself has the effect of continuing the leave pending the making of either a decision to vary that leave or to refuse to do so. The relevant legal provision is section 3C of the 1971 Act which provides:

"Continuation of leave pending variation decision

(1) This section applies if

a. a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

b. the application for variation is made before the leave expires and

c. the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when

a. the application for variation is neither decided nor withdrawn,

b. an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the applicant is in the United Kingdom against the decision on the application for variation (ignoring the possibility of an appeal out of time with permission), or

c. an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).

(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section."

14. Section 10 of the 1999 Act provides, so far as is material:

"(1) 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 uses deception in seeking (whether successfully or not) leave to remain;

…

(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him …"

15. Section 82 of the Nationality, Immigration & Asylum Act 2002 provides, so far as is material:

"(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 - …

(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 …

(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1) …(b) … of the Immigration & Asylum Act 1999 (removal of a person unlawfully in the United Kingdom) …

(5) The right of appeal under section (1) is subject to the exceptions and limitations specified in this Part".

16. The 'limitations' set out in the 2002 Act include limitations as the types of appeals which can be brought whilst remaining in the United Kingdom. Section 92 of the 2002 Act provides, so far as is material:

"(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), (ha) and (j) …"

17. The consequence of section 92 of the 2002 Act is that an appeal against a removal decision under section 10(1)(b) of the 1999 Act attracts only an out-of-country right of appeal, whereas a decision to refuse an application to vary or extend an earlier grant of limited leave to remain attracts an in-country right of appeal if the effect of that decision is that the person no longer has leave to remain. Hearings conducted further to out of country rights of appeal can include the giving of oral evidence by video link.
18. It is apparent that there has been a clear legislative choice by Parliament to make the out of country right of appeal the only available route of appeal in cases where it has been concluded that there has been a sufficiently serious breach of conditions or that deceit has been used in seeking leave to remain which is such as to justify the use of the power of removal rather than simply the exercise of the lesser power of curtailment of leave (which triggers an in-country right of appeal).
19. It is recognised, in the caselaw, that this legislative choice may bear harshly on individuals in circumstances where they have to endure the disruption of leaving the UK in order to exercise the right of appeal, and the appeal ultimately proves successful. Such disruption is a necessary consequence of the legislative choice and is not in itself a matter for the courts. It is intended by Parliament as the principal route for challenging a decision made under section 10 and the courts must not exercise their discretion to use the residual supervisory power of judicial review in such a way as to undermine that legislative structure.
20. However, because the making of a section 10 decision has such serious procedural consequences, and because the making of a removal decision is discretionary, the Enforcement Instructions and Guidance ('EIG') issued by the Secretary of State quite properly set out, in some detail, the circumstances in which the section 10 power should be used.

Enforcement Instructions & Guidance

21. Immigration officers have a discretion in the use of enforcement powers, and in particular, the making of a removal decision under section 10. There are detailed EIG as to how officers should exercise these discretions. Policy guidance of this kind has legal consequences: a public authority should not depart from its published policy decision without good reason: Lumba (Congo) & Mighty (Jamaica) v SSHD [2011] UKSC 12, [2012] 1 AC 245. In relation to the use of section 10(1)(b) in cases where a person is said to have obtained leave to remain by deception, the EIG provides (at paragraph 50.12):

"… The evidence of deception should be clear and unambiguous in order to initiate action under section 10. Where possible, original documentary evidence, admissions under caution or statements from two or more witnesses should be obtained which substantiate that an offence has been committed before authority is given to initiate action under section 10 of the 1999 Act. The deception must be material – in other words, had the officer known the truth, the leave would not have been given. The evidence must always prove to a high degree of probability that deception had been used to gain the leave, whether or not an admission of deception is made. The onus – as always in these situations – is on the officer making the assertion to prove his case" (emboldening in original, underlying added).

Analysis

The order of the removal and refusal decisions

22. Although they were served two minutes apart, the order of the making of the removal and refusal decisions is of some legal significance. I therefore address this issue first.
23. The Claimant says that the refusal decision was taken before the removal decision, and that the later making of the removal decision was an abusive attempt to remove the in-country right of appeal which would otherwise have arisen under section 82(2)(d) of the 2002 Act. In support of this submission, he points out that the refusal decision is dated 7 July 2014. Although the text of the letter stated that there is no right of appeal 'in view of the earlier section 10 removal decision …', he says that there was in truth no such 'earlier' decision, because the removal decision itself was dated 11 August 2014 – more than a month later.
24. I can well see from the paperwork how this impression has arisen. The explanation given by the Secretary of State was that it was always intended that the two decisions would be served together, the removal decision being served first in order to terminate the pre-existing leave by virtue of section 10(8) of the 1999 Act. The 'refusal to vary' decision was also provided as 'belt and braces' so that it could not be said that the variation application of 29 December 2013 had been left undetermined. It is said on the Secretary of State's behalf that the refusal decision, which required individual drafting, was drafted on 7 July (which is reflected in the date of the letter) but it was always intended that it would be served on the same occasion as, and immediately after, the removal decision (a pro-forma, dated with the date of service). It is for that reason that the 7 July letter containing the refusal decision refers to the 'earlier' removal decision. This was somewhat apt to confuse, and I discuss whether this was an appropriate or necessary way for the Secretary of State to proceed later in this judgment.
25. However, as a matter of law, I find that the removal decision preceded the refusal decision. It is clear from the caselaw that a decision takes effect at the moment when it is given, not the moment when it is drafted (see SSHD v Ahmadi [2013] EWCA Civ 512, [2014] 1 WLR 401 at [20-25]). Thus, accepting as I do that the removal decision was served first, at 6.19 am on 11 August 2014, and the refusal decision second, at 6.21am, it follows that the refusal decision was second in time.

What flows from the order of the removal and refusal decisions

26. The Claimant's primary submission was that he had an extant in-country right of appeal under section 82(2)(d) of the 2002 Act. He had two arguments in support of this. First, that the refusal decision was first in time. The later removal decision did not operate to invalidate his leave to remain under section 10(8) (thereby removing his in-country right of appeal). Rather, his leave had already been invalidated by the prior refusal decision. Thus, it was said, the right of appeal arose by reason of the refusal decision and not the removal decision.
27. This argument necessarily fails because I have found that the removal decision was first in time.
28. The second argument was that the in-country right of appeal against the refusal decision endured, even if that decision was second in time as a matter of law, because section 10(8) of the 1999 Act does not apply to a statutory extension of leave to remain by operation of 3C of the 1971 Act.
29. As to the second argument, the position is as follows. Before the decisions were served on the Claimant early on 11 August 2014, he was lawfully present in the United Kingdom. He had been given limited leave to remain as a student in 2011. He had applied for a variation of that leave on 29 December 2013, before it would (otherwise) have expired on 30 December 2013, and so the leave which he had been granted in 2011 was extended by the provisions of section 3C(2) of the 1971 Act. The effect of the making of the removal decision under section 10(1) of the 1999 Act at 6.19am on 11 August 2014 was to invalidate the leave which the Claimant previously enjoyed to enter and remain in the United Kingdom with prospective effect, by operation of section 10(8).
30. The Claimant's argument to the contrary proceeds on the basis that section 10(8) only applies to original periods of leave to remain 'previously given by' the Secretary of State. Mr Malik says that a statutory extension of leave under section 3C of the 1971 Act is not leave 'previously given by' the Secretary of State. That leave had expired on 30 December 2013, and, says the Claimant, the leave he enjoyed until 11 August 2014 was a different type of leave, 'given by' the terms of section 3C of the 1971 Act and not by the Secretary of State.
31. I do not consider this to be a tenable reading of the 1971 Act. The language of section 3C does not give a fresh period of deemed leave. It clearly envisages that something pre-existing is being extended by virtue of an undetermined application for variation of an existing period of leave. Indeed, the section is entitled 'continuation of leave pending variation decision'. The word 'continuation' in the title begs the question 'continuation of what?' The only rational answer to that question is 'continuation of that which previously existed' – i.e. the period of limited leave previously given by the Secretary of State. Moreover, I note that section 3C(4) (which prohibits a second variation application during a period of 'deemed' extension under section 3C(2)) provides that no such application for extension of leave may be made 'while that leave is extended by virtue of this section'. In other words, the leave enjoyed after a variation application is a statutory extension of the same leave which existed before it was made.
32. That is my clear impression of the meaning of section 3C of the 1971 Act from first principles. It is also consistent with the decision of the Court of Appeal in QI (Pakistan) v SSHD [2011] EWCA Civ 614, which is of course binding upon me. In that case, Lord Justice Pill (at [14]) described leave varied under section 3C as 'a statutory extension of the original leave', not 'a new or different species of leave'.
33. This interpretation also makes policy sense. As the Defendant submitted, any other interpretation would produce 'bizarre or arbitrary' results. To take the present case, I cannot see why the power of the Secretary of State to make a section 10(1) removal on the basis of deceit should depend upon whether such alleged deceit was uncovered during the primary period of leave (before 30 December 2013), or after a decision to extend it (which could well have been taken before the ETS fraud was uncovered), or during the statutory extension of the primary period of leave pending any decision on the variation application.
34. I therefore reject the submission that an in-country right of appeal against the variation decision continued after the removal decision was made. The underlying period of leave was extinguished by operation of section 10(8) of the 1999 Act. Thereafter, the only right of appeal was the out-of-country right of appeal against the section 10(1) decision under section 82(2)(g) of the 2002 Act, and not the in-country right of appeal under section 82(2)(d).

Impact of the removal decision upon the refusal decision

35. The Claimant's alternative submission was that the Defendant undoubtedly had both reached and served a refusal decision (the letter dated 7 July 2014). If it was right that this was not 'an immigration decision' as defined by section 82 of the 2002 Act, and thereby attracting a right of appeal to the FTT, it was simply a public law decision with no alternative statutory remedy at all. It was therefore submitted that the supervisory jurisdiction of the Administrative Court was all that was available, and that I should consider the legality of the refusal decision by way of judicial review.
36. The Defendant submitted that I should not, because in reality the merits and fairness of the refusal decision were inextricably linked with the merits and fairness of the removal decision, which – it was said – were a matter to be considered on appeal and not by way of judicial review.
37. I accept – and it was not disputed – that there is no alternative remedy to judicial review in respect of the refusal decision. However, in my view, the real problem with the Defendant's approach to the refusal decision was that if (as I have found) section 10(8) of the 1999 Act operated to extinguish the leave as extended by virtue of section 3 of the 1971 Act, there was no longer any leave in existence upon which the ostensible refusal of the application to vary it could bite. In short (as Sedley LJ put it in R (Lim) v SSHD [2007] EWCA Civ 773 at [17]:

"… Khawaja establishes that the non-existence of a precedent fact relating to immigration status can deprive the decision-maker of power to decide and render any purported decision void …"

Having extinguished the period of leaving by making a section 10 decision, the Defendant erred in purporting then to make a second decision to refuse to vary that leave, because no such leave existed to vary. In other words, since the underlying leave to remain had already been extinguished by the time the purported refusal to vary it was served, the refusal to vary was itself a nullity.

38. This is not, for understandable reasons, a submission which was pressed on my by the Claimant (for whom such a result served no purpose), and although I consider that the purported refusal decision was in fact a nullity, it would serve no purpose for me to make any declaration to this effect.
39. I understand the rationale which Mr Dunlop offered as to why the Defendant had regarded it as a sensible 'belt and braces' to close off any potential judicial review of the failure to determine the variation application, by formally refusing it immediately after the removal decision was made. I just do not consider that it works as a matter of law. I also think it is confusing, and itself apt to lead to unnecessary but understandable applications for judicial review, especially given that the Court of Appeal has expressly stated that in-country and out of country rights of appeal are alternatives which cannot co-exist (see R(RK (Nepal) v SSHD [2009] EWCA Civ 359).
40. I am not alone in this impression. In R (Shah) v SSHD [2014] EWHC 3301 (Admin) at [13], a case on very similar facts to this one, Lewis J said that he had initially been concerned that there had in fact been both a decision to refuse to vary leave under section 82(2)(d) which carried an in-country right of appeal and also a decision to remove under section 10(1)(b), which carried only an out-of-country right of appeal. This impression had been reinforced by the correspondence by the Secretary of State, which said that she had refused the application for leave to remain as well as making a removal decision. It was only in the 'helpful submissions' of counsel for the Secretary of State which set the course straight ([20]), by explaining that the section 10(1) removal decision had been taken first in time, with the consequence that by the time of the notification of the decision to refuse to vary leave was given to the Claimant, the leave to remain was already invalidated. Thereafter

'no matter how the Secretary of State expressed herself, what she was doing was saying because our leave has been invalidated you do not have leave to remain and we cannot therefore vary it by extending the time …

Standing back from the matter … The Secretary of State has made a decision here under section 10(1)(b) [of the 1999 Act]. That carries with it a right of appeal but only from outside the United Kingdom. That decision invalidates any previous leave given and therefore there would be no need, and no legal provision, for a decision refusing the application to vary leave as there is no leave' (at [15]-[16]).'

Lewis J refused permission to apply for judicial review on the basis that the 'true decision' was a decision to remove under section 10 and (at [19]):

"… There is in truth no separate legally operative decision to refuse leave to remain. The leave was invalidated by section 10(8)".

41. The learned judge expressed sympathy, which I share, with the way in which the claimant proceeded given the confusing nature of the letters from the Secretary of State which did not fully explain the legal position.
42. I was told by Mr Dunlop that at the time when the decisions were taken in the Claimant's case, the approach taken was a standard one in cases where a person with an outstanding application for variation of pre-existing leave was to be served with a removal decision on the basis of findings of deceit: i.e. a removal decision was served first, with a refusal to vary decision being served immediately thereafter for completeness. More recently, the standard form of words to be used in 'ETS' cases has changed.
43. The removal decision now contains a longer statement of the evidential basis upon which it has been concluded that the TOIEC certificate of English language aptitude has been fraudulently obtained (so as to demonstrate compliance with paragraph 50.12 of the EIG). Instead of a separate 'refusal to vary' decision being served after the removal decision, the notice of the refusal decision taken under section 10(1) of the 1999 Act now states:

"A decision has been taken to remove you from the United Kingdom. As a result of the service of this decision, you no longer have any leave and so any outstanding application you made for variation of your leave does not need to be determined as there is no existing leave to vary".

44. This wording is much better than that used in the present case, because it removes the source of potential confusion and concern which struck Lewis J in the Shah case, and me in the present case. However, 'standing back from the matter', the infelicity of language does not reveal an error of law.
45. Once it is appreciated that the removal decision was first in time, and had the effect of invalidating the Claimant's previous leave to remain, the truth is that the ostensible decision to refuse to the application to vary the pre-existing leave to remain by extending it was simply a nullity, because there was no leave to vary or to decline to vary. That, in my view, disposes of ground (a) of the grounds for judicial review which constitute an attack on the ostensible refusal decision.

Ground (b) – was the removal decision an abuse of power; and

Ground (c) - should this court consider the question on the basis that the 'precedent fact' of deceit had not been proved to the requisite standard

46. The second ground of judicial review was an attack on the legality of the removal decision. It was said that this was an abuse of power because the only objective reason for using section 10(1) after a refusal decision had been reached was to take away the in-country right of appeal from the Claimant in relation to the refusal decision.
47. It was also said that there was a failure to follow the EIG insofar as applicable to this case, and that this made the matter one in which 'special or exceptional factors' rendered the claim one apt for determination by way of judicial review, notwithstanding the availability of an alternative remedy by way of an out-of-country right of appeal.
48. Indeed, in ground (c), the Claimant went further and submitted that the decision was susceptible to judicial review on a 'precedent fact' basis, as in Khawaja [1984] AC 74. It was said both that I should exercise my discretion to consider the merits of this attack by way of judicial review and that I should myself decide whether the Defendant had proved to the requisite standard that the Claimant had sought to obtain leave by deception, because this was a question of precedent fact going to the jurisdiction of the first tier tribunal.
49. The Defendant submitted that it would be wrong for the court to consider the attack on the merits of the removal decision by way of judicial review at all. The alternative remedy by way of out-of-country right of appeal was that which Parliament intended to be used in a case of this kind, and disputes of fact were better suited to tribunal determination. Consequently, it was said, the issue of precedent fact simply did not arise. It was argued that R (Lim) v SSHD [2007] EWCA Civ 773 was authority for the proposition that only in cases where there was a special or exceptional question of precedent fact such as whether the person to be removed was a of British national, or whether it was a case of mistaken identity, should the High Court interfere. Otherwise, in all cases, any challenge to a section 10 decision should only be exercised through the tribunal system.

Availability and appropriateness of judicial review

50. There are three Court of Appeal decisions as to the linked questions of whether it is appropriate to use judicial review to challenge a decision which can also be challenged by out-of-country appeal before a first tier tribunal. The factors which might be sufficiently 'exceptional or special' to render it appropriate to supervise the exercise of discretion to proceed under section 10 of the 1999 Act has been the subject of a recent flurry of contradictory first-instance decisions which all seek to apply that Court of Appeal authority.
51. I was in the unenviable position that the first of those first-instance decisions was mine, in a case called R (Thapa) v SSHD [2014] EWHC 659 (Admin). In that case, I followed the decisions of two judges who had granted permission to proceed by way of judicial review, and added reasons of my own for doing so. I found that the Secretary of State's decision in that case to proceed by way of section 10 enforcement was unlawful and unfair.
52. Although the substance of the findings of illegality were not appealed (and the EIG has been amended to reflect them), and the it has been suggested that the substance of the decision on abuse of power was right, the exercise of my discretion in Thapa to hear the application for judicial review in the Administrative Court has since been disapproved. That was in the case of R (Bilal Jan) v SSHD [2014] UKUT 00265 (IAC) in which a tribunal of three Upper Tribunal judges chaired by Bean J (as he then was), expressed the view that the factors which I had identified as sufficiently 'special and exceptional' were not. That decision was later approved by Green J in R(Khan) v SSHD [2014] EWHC 2494 Admin
53. I was asked to address the question of exercise of discretion in this case by the Claimant on the basis that Bilal Jan was distinguishable, and by the Defendant on the basis that Bilal Jan was right. I was not the only one placed in an invidious position. Mr Malik, who appears for the Claimant in the present case, sought to persuade me that I should determine the application for judicial review myself. In Bilal Jan, it was Mr Malik, appearing for the Secretary of State, who had persuaded the Upper Tribunal that I had erred in the Thapa case in so concluding. And Mr Dunlop, appearing for the Secretary of State in the present case, had to submit to me that my decision in Thapa had been wrong. I find that we all handled this situation as gracefully as possible in the circumstances.
54. It is common ground that the supervisory jurisdiction of the High Court is not extinguished by the right of appeal to the FTT, and that it is only in the 'special or exceptional' case that it should be exercised. In order for me to determine the threshold question of whether the legal and/or factual merits of the removal decision ought to be determined by the High Court on the application for judicial review in this case, it is necessary for me to review the line of cases on the use of judicial review in these circumstances, both that which precedes the Thapa decision and that which follows it.
55. The trail starts with the celebrated decision of the House of Lords in Khawaja [1984] AC 74. In that case, the court was primarily considering the approach which it ought to adopt in an application for judicial review in circumstances where the alternative was removal of the appellant from the jurisdiction for an out of country appeal in front of what was then an immigration adjudicator. The House of Lords decided that the consequence for the person (then in detention) of removal from the jurisdiction were so draconian that the High Court had to exercise full jurisdiction to ensure that the precedent facts which were relied upon by the immigration officers to justify such an extreme executive decision were properly established. See, in particular, per Lord Wilberforce at paragraph 39; Lord Scarman at paragraph 57 and Lord Bridge at 106-108. They reached this decision even though Lord Fraser rejected (at paragraph 14) any suggestion that the out of country right of appeal to the adjudicator was a 'worthless' one.
56. The Court of Appeal then further considered this decision in the case of R(Lim) v Secretary of State for the Home Department [2007] EWCA Civ 733. That case concerned a decision by the Secretary of State to remove the claimants under section 10(1)(a) of the 1999 Act on the basis that they had worked in breach of condition. There were two issues before the Court of Appeal. The first was whether the Secretary of State was required to prove to a high standard and to the court's satisfaction the 'precedent fact' that there had been breach of condition, or whether the court had merely to be satisfied that the Secretary of State had reached a reasonable decision on this issue. The second issue was whether the court should refuse the application on the basis that Mr Lim had an alternative remedy, in his out-of-country right of appeal.
57. Sedley LJ, giving the judgment of the court, held that there were some material facts upon which the application of section 10 depended which it could not be said were questions for the immigration officer to determine, subject only to out-of-country right of appeal. For example, the section permits only removal of a person who is a British citizen. If an immigration officer made a section 10 decision in the mistaken belief that the person concerned was not a British citizen, or on the basis of mistaken identity, the High Court would have unfettered power to determine such questions. It could not be said that the person could raise those questions perfectly adequately in an out-of-country appeal.
58. However, the question of whether or not the conditions of leave had in fact been observed were not in the same category. While there was no clear line to be drawn between questions of precedent fact and others, questions such as whether or not a person was working, and if so, in the wrong place, or whether what was done amounted to deception, must be held as properly falling within the mechanism for appeals under section 84 of the 2002 Act. Sedley LJ held (at [21]) that it would be impossible to find otherwise without disregarding the manifest purpose of section 82 of the 2002 Act. He concluded (at [22]) that:

"The only coherent solution, it seems to me, is to continue to regard every question arising under section 10 as in principle both appealable and reviewable ...but to calibrate the use of judicial review, through the exercise of judicial discretion, to the nature of the issue or issues. In this way – and in so far as I can see, in no other way – the High Court can remain loyal to what was decided in Khawaja by consistently retaining jurisdiction to determine the existence of preconditions of liability to removal, as well as other questions of law apt for the High Court's determination, but can also respect the policy of section 82 by declining to entertain challenges on issues more apt for the appeal mechanism, whatever its hardships."

59. Sedley LJ (at paragraphs 22-25) recognised that it was important that the exercise of that discretion be exercised with reasonable consistency and predictability, so that two individuals with similar claims should not find that one is heard and the other is turned away (and, he might have added, so that needless time and public money are not spent in contested turf wars as to whether a challenge should proceed in tribunal system or the Administrative Court). He held that while there was no precise yardstick, or necessary or logical cut-off as to issues of fact, such issues were rarely likely in practice to escape the adverse exercise of discretion, since otherwise the courts would empty Parliament's prescribed appeal procedure of content. The Court of Appeal held that the first instance judge in that case, whilst naturally sympathetic to claimants where the decision-making appeared somewhat thin, had erred in proceeding to determine the application by way of judicial review.
60. The matter was considered again by the Court of Appeal in R (RK (Nepal)) v SSHD [2009] EWCA Civ 359. That was a claim in which the Claimants, who had leave to remain as students, were served with section 10 decisions when they were found to have been working for more than the 20 hours per week permitted in the conditions of their leave to enter and remain. Permission to challenge that decision by way of judicial review was refused, and a renewal application was made to the Court of Appeal. The Court of Appeal also refused the application. Aikens LJ emphasised at paragraph 33 that the courts must respect the legislative framework put in place by Parliament, whereby immigration decisions attracting a right of appeal under section 82 of the 2002 Act were not open to challenge in the courts by way of judicial review unless there were 'special or exceptional factors' at play. He held that the facts in the RK case were not sufficiently 'special or exceptional'; that the contested questions fell squarely within section 10(1), and that it made no difference to that decision that the Secretary of State might instead have made a decision to curtail the applicants' leave thus bringing the decision to remove into the in-country right of appeal under section 82(2)(e) of the 2002 Act in a case where:

"there is no challenge …to the fact that the decision to remove was made under section 10".

The two routes of appeal were 'distinct' and 'must not be blurred' (see para 36). RK, however, as Aikens LJ observed at paragraph 35, was a claim in which there was no challenge to the exercise of discretion to use the power under section 10 of the 1999 Act at all.

61. In R (Anwar & Adjo) v SSHD [2010] EWCA Civ 1275, the Court of Appeal gave further consideration to the question of what constituted special and exceptional circumstances. In one of the cases, a Ms Pengeyo, had been enrolled at an institution which was (at the time of her enrolment there) considered by the SSHD to be a bona fide educational provider, but was later found to be issuing bogus qualifications. Ms Pengeyo had sought advice from the Home Office and been told to seek another provider, which she did. The SSHD nonetheless decided to remove her from the UK on the basis that had obtained leave to remain by deception. The tribunal later found that Ms Pengeyo had been acting honestly throughout, and indeed there had been no evidence upon which it could have been found that she had acted dishonestly. The adverse decision was reached 'out of the blue' without an opportunity for Ms Pengeyo to present her case. (I interpolate that this would appear to be contrary to the position which must be adopted in respect of those perceived to be illegal entrants, who must, as a matter of fairness, be given an opportunity to be heard before such an adverse decision is taken: R Uluyol) v An Immigration Officer (CO/1960/00) per Gage J)).
62. In the Pengeyo and Anwar cases, the AIT had held that the respective immigration judges had acted without jurisdiction in reaching conclusions in the case, because the appeals ought not to have been permitted to start on an in-country basis. Sedley LJ held (at [19]), that this was an error. The judges had had jurisdiction to embark upon the hearings unless and until the point was taken by the Home Office, at which point, it acted as a jurisdictional bar. Ms Pengeyo's judicial review did not, in fact, need to proceed (because by the time of the Court of Appeal hearing, the Home Office accepted that she was not guilty of deceit and had withdrawn its removal decision). However, Sedley LJ observed at paragraph 24 that

"In the judicial review proceedings …. A challenge was made to the decision of the Home Secretary to use the deception route, enabling her effectively to stifle any appeal, rather than the variation route carrying a right of in-country appeal. Judge Thornton QC rightly in my judgment, granted permission to argue this. Had it been sought, permission would also have properly been granted to argue that the election of the Home Office, having used the deception route, to take the out-of- country point in order to stifle an appeal was a serious abuse of power. Once it is established that the point is good only when taken to take it in order to prevent the exposure of a shameful decision – the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer – is without doubt justiciable by way of judicial review".

63. Pausing at that point in the review of the caselaw, that observation of Sedley LJ, albeit an obiter dictum in my view lends support to an argument, which is in any event a necessary consequence of the Khawaja decision, that judicial review is always available as a remedy where the court concludes that the use of section 10 and the out-of-country route rather than a curtailment or refusal decision which triggers the in-country right of appeal, constitutes an abuse of power.
64. Although I of course appreciate that grounds of appeal under section 84 of the 2002 Act can include an erroneous exercise of discretion, I consider that where the allegation is not one of mistake, but one of abuse, the jurisdiction of the High Court must be available and capable of being exercised in practice if the alternative is to subject the affected person to a real detriment. As the House of Lords noted in Khawaja, being required to leave the jurisdiction is such a detriment, notwithstanding the continuing availability of a genuine and worthwhile right of appeal.
65. Nonetheless, in fidelity to the legislative scheme of the 2002 Act, the High Court should only be prepared to exercise that jurisdiction in truly 'special' or 'exceptional' circumstances, such as – for example – a compelling basis for considering there has been an abuse of process. The mere fact that some inconvenience will result from being required to leave the jurisdiction is not in itself 'special' or 'exceptional': it is inherent in the scheme.
66. The next decision in time is that in Thapa, which was handed down on 11 March 2014. In that case, a young Nepalese student was observed on one occasion in the kitchen of a restaurant, in which he had previously (lawfully) worked part-time while studying. Since that time, his leave had been varied so he was no longer entitled to work. It was said that he was working in breach of his leave. He was served with a section 10 removal decision and detained pending removal. There was no evidence either in the contemporaneous papers or the witness evidence that the immigration officers concerned had appreciated that they had a discretion to enforce other than by way of a removal decision, nor that they had exercised any such discretion having perceived such a breach.
67. The EIG at para 50.5.2 said that in order for a removal decision to be made in such circumstances, the breach must 'be of sufficient gravity' to warrant such action. It said that there must be 'firm and recent evidence', normally within six months of working in breach, including one of – 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 or a P45; and sight by the IP or a police officer, preferably on two or more separate occasions, or on one occasion over an extended period, or of wearing the employer's uniform, in practice, generally backed up by other evidence. None of this evidence existed in that case.
68. Mrs Justice Swift and Mr Justice Walker had been asked in written submissions for the Secretary of State to refuse permission to proceed by way of judicial review, on the basis that a suitable alternative remedy was available in the form of an out of country right of appeal. However, they had granted permission. On the basis of the decision of Sir Thayne Forbes in R (Alapati) v SSHD [2009] EWHC 3712 (Admin) the Claimant submitted that I ought not to refuse to entertain the substantive application on the basis that this issue had already been decided at the permission stage. I regarded the decisions of Swift and Walker JJ as 'highly persuasive' factors in persuading me to consider the substantive questions of law before me. Perhaps foolishly, I added three reasons of my own.
69. The first (at [41]-[43]) was that I regarded this as a challenge, not to the decision under section 10 of the 1999 Act, but to the prior decision as to whether to adopt this (rather than some other, or no) enforcement action. This I regarded as a situation distinguishable from Lim, and expressly envisaged as raising different issues in RK (Nepal), because it was a question of the process through which the discretion was exercised to proceed down a route generating only an out-of-country right of appeal, and although the First Tier Tribunal might have considered these questions during the course of any such appeal, the issue was not one equally capable of resolution in the FTT. I formed this view because the Administrative Court could offer a more satisfactory remedy for an abusive choice of route, whereas the FTT could only have made a declaration to this effect after the event. As I could have said – though I did not express it in that way – this appeared to me to be an arguable case about the abuse of the power to make a section 10 decision in circumstances in which it was plainly against the Secretary of State's own policy to do so, rather than a question of whether the conclusion reached under section 10 as to whether the claimant in that case was in fact working in breach of condition, or how serious that breach was.
70. Secondly (at [44]), I found that that question was one where I was not convinced that the statutory appeal procedure could in fact provide a suitable alternative remedy given the nature of the challenge in that case (i.e. unlawful/unfair, or – I might have said – abusive, exercise of discretion in choice of enforcement mechanism, unfairly consigning the appellant to an out of country right of appeal).
71. Thirdly, at [45], I was persuaded by the reasoning of Walker J that the wider public importance and consequently the importance of a swift determination was a factor (though of course not the only factor) which ought to influence my exercise of discretion to keep the claim in the High Court.
72. I distinguished that case from the decision of Ali Zahid v SSHD [2013] EWHC 4290, in which Coulson J rejected an application for judicial review on the basis that there was a suitable alternative remedy in the FTT. I noted that the question of abuse of power/exceptionality was not run in that case, and also that the evidential requirements in the EIG were plainly made out in the very different circumstances of that claim.
73. There was no appeal against the Thapa decision. On the basis of the substantive findings in that case, the EIG was changed so that officers must now demonstrate that they have considered whether a particular case is an appropriate one for the exercise of discretion to proceed under s10 of the 1999 Act, and so that the specific statement of reasons for the decision is given in more detail than was hitherto the case. (I was shown a document which evidenced the exercise of discretion in the present case).
74. However, very soon after it was handed down, the exercise of discretion to hear the matter by way of judicial review in Thapa was disapproved by a 3-judge Immigration and Asylum Chamber of the Upper Tribunal, presided over by Bean J as he then was. This was in a renewed permission application in the case of R (Bilal Jan) v SSHD. Jan was another case in which a student was encountered working in breach of his conditions of leave. Permission was sought on the basis that there was no firm evidence that he was working in breach and that in any event the alleged breach was not of sufficient gravity to warrant his removal. The Defendant's contemporaneous record of evidence in that case (albeit disputed) was that the Claimant had been interviewed under caution and admitted working.
75. On the basis of Thapa, it was submitted for the Claimant in Jan that there was no evidence that the Defendant had considered the exercise of discretion under section 10 before the removal decision was reached. Again, that was disputed by the Secretary of State, who pointed out (at 21) that both the interview note and the terms of the notice of the removal decision showed that the decision-maker was aware that there was a discretion, and that these were circumstances in which she was entitled, on the basis of her published policy, to find that this was a proper case for removal.
76. As to whether the in-country right of appeal constituted a suitable alternative remedy, the Defendant relied upon R (RK (Nepal)) and Lim to submit that there were no appropriately special or exceptional factors in the Bilal Jan case justifying proceeding by way of judicial review. It was submitted by the Secretary of State that Thapa was wrongly decided on the issue of availability of judicial review and should not be followed.
77. The Upper Tribunal rejected the submissions that there was no evidence of exercise of discretion. The Upper Tribunal appeared (at [24]) to read Thapa as formulating a general principle that to act lawfully, a decision-maker must in every case expressly explain why a particular enforcement route had been followed and why alternative routes had not been followed. I certainly did not intend to express myself in such general terms. Thapa was decided in a case where nothing existed to suggest that the officials had even considered the exercise of discretion; in a case that on its face did not appear to be repeated or significant; where there was clear evidence of breach of the criteria in the EIG as to circumstances in which a removal decision would be made; and where no explanation was recorded as to why that was so. It was in those circumstances that I found that there should have been such recording of facts as to enable the court to satisfy itself that there had been a fair exercise of discretion to follow the section 10 route.
78. Jan was a very different case because, as the Upper Tribunal noted (at paragraph [25]), the contemporaneous interview record did give reasons which demonstrated a clear admission of work, in accordance with chapter 50.6 of the EIG. Those facts were to be taken as given since judicial review (as opposed to a statutory appeal) was not generally an appropriate forum for resolving disputed issues of fact. Moreover, the Upper Tribunal held (at paragraphs [26] and [28]) that the evidence in Jan satisfied the Upper Tribunal that the decision makers were clearly aware that they had a discretion. It was in that context that the Upper Tribunal held (at [29]) that the notice of decision and reasons given were adequate to indicate why the decision was taken, and that there was no need to have any express reference to why the discretion was exercised to make a removal decision.
79. Indeed, the Upper Tribunal in Jan distinguished Thapa where there were such special factors, and where the evidence which might have been advanced in response went beyond a bare denial.
80. At paragraphs 35-43, the Upper Tribunal considered the question of whether the tribunal on an out-of-country appeal offered a suitable alternative remedy. It reviewed the Lim, RK (Nepal) and Thapa cases. The Upper Tribunal held (at [37]) that the distinction in the Thapa case between the challenge to a decision under section 10 of the 1999 Act and a prior decision to proceed under it was not a good basis for distinguishing that which the FTT could decide and that which the Administrative Court could decide, because it overlooked the fact that the FTT has jurisdiction to consider issues relating to fairness and failure to appreciate a discretion, on the basis that the decision was 'not in accordance with law'. It held, therefore, at [40]-[42], that I had been wrong to take the view that the facts in Thapa raised issues falling outside the jurisdiction of the FTT, or that such issues were special or exceptional per se. The fact that it would be too late by the time the matter was considered by the FTT to prevent an in-country remedy having been given applied to all out of country appeals, and this could not constitute a special factor.
81. At paragraph 42 of its decision, the Upper Tribunal in Jan held that the fact that a question was one of general public importance was not an issue which could justify a matter being heard by way of judicial review.
82. These authorities were again considered by Green J in R (Khan) v SSHD [2014] EWHC 2494 (Admin). After a careful survey of the authorities, Green J noted (at [67]) that he agreed with the reasoning and logic in Jan which he considered better reflected the analysis and guidance of the appellate courts.
83. Having considered the decisions of the Upper Tribunal in Jan and the Administrative Court in Khan with great respect, I still consider that the exercise of discretion in the Thapa case was the right one in the circumstances of that case.
84. Doubtless due to deficiencies in the way it was expressed, the Upper Tribunal in Jan read my observations on the exercise of discretion in that case rather more broadly than I intended them to be read. In particular, I did not intend to suggest a rigid distinction between decisions as to whether to use section 10 and those under it. As Sedley LJ observed in Lim, the dividing lines in this area cannot be clearly drawn.
85. As to the nature of the decision under challenge in that case, the point I was seeking to draw out was that Thapa was more properly seen as a case about abuse of process in the determination of which enforcement route to pursue than a case going to the legal and factual merits of the decision in a narrower sense. I saw Thapa as a case in which nothing suggested to me that the decision-maker had considered the exercise of discretion as to which route to pursue; nor had she recognised the fact that the evidence required by the EIG before using that enforcement route (with its out of country right of appeal) did not exist (see [65]). She had not decided that this was a case in which use of this enforcement route was justified even though it departed from her expressed policy: she simply had not accepted that it was a departure from that policy. This was different from Ali Zahid and from the decision in Jan. It was for that reason that I considered that the nature of the challenge militated against forcing the case into the FTT route. I ought perhaps, using the language of Anwar, to have indicated that I regarded it as an abuse of power case.
86. I was well aware that 'other error of law' was a ground for review in the FTT, so I did not consider that the matter was simply outside the jurisdiction of that tribunal. But, given the nature of the concern in the circumstances of the Thapa case, I did not consider it one equally capable of resolution by the FTT or the Administrative Court, nor one in which the Administrative Court ought to concede what the House of Lords in Khawaja called its 'jealously guarded' supervisory power. Given the serious question of abuse of power in forcing the decision down the out-of-country appeal route on the facts of that case, I considered the question "more apt for the supervisory jurisdiction of [the Administrative] Court", given that otherwise the claim might have been 'unlawfully or unfairly' consigned to the out-of-country route. The observations of Mr Justice Walker on general public importance, coupled with the fact that the two publicly funded parties had come prepared to argue the full case (the Claimant having been granted permission to do so after a contested permission application) were of some significance as a factor in the exercise of discretion, but would not have persuaded me to accept jurisdiction on their own.
87. I regard Thapa as a case in which it was appropriate to consider the matter by way of judicial review, given (a) the fact that two judges had considered the issue and granted permission; and (b) that in effect that was an abuse of power case. Given the complete failure of the Defendant to evidence any regard to her own guidance as to the strength of evidence required, or to recognise the distinction between finding that the Claimant was working and a deciding to remove, I consider that it was an abuse case of the kind for which Sedley LJ in Anwar would have given permission for judicial review. I see it as one of the 'special and exceptional cases' envisaged in Lim and in RK(Nepal) at [35] which is a true challenge to the fairness of the process by which the decision to proceed under s10 of the 1999 Act was reached, rather than an attack on the legal or factual merits of the decision taken under that section. I agree with the Upper Tribunal in Jan and Coulson J in Ali Zahid that neither of those was a case which contained any such special and exceptional factors. I recognise, as did Sedley LJ in Lim, that there is no clear line demarcating the two cases. But I regard Thapa as distinguishable, rather than a departure from, the Lim and RK decisions as applied in Jan and Ali Zahid.
88. It is also perhaps significant that these were all 'breach of condition' cases under section 10(1)(a) of the 1999 Act, rather than 'deceit' cases under section 10(1)(b). In relation to deceit, the relevant section of the EIG (which I have cited at paragraph 21 above), understandably does not focus so strongly on factors to take into account in deciding whether the use of section 10 is justified, but rather, on the strength of evidence to be obtained before so serious a finding is made.

Exercise of discretion in this case

89. In this case, I do not need to form a clear view as to whether Thapa is reconcilable with the other caselaw which I have cited, because on any view, this is not a case in which it is arguable that the decision to make a removal decision under section 10 constituted an abuse of process such as to justify invoking the supervisory jurisdiction of the High Court rather than the appeal jurisdiction of the FTT.
90. For reasons which I have set out earlier, I consider it would have added clarity to the process if the Secretary of State had only reached a section 10 removal decision, and had indicated – in her reasons – that this invalidated the prior leave, so that no decision would be reached on the application for variation of it. But I accept that the Secretary of State always considered that this was an appropriate case for the making of a removal decision, because there was compelling evidence of individual involvement in fraud. I accept that the refusal decision was only reached for (what was seen to be) the sake of completeness and propriety. I do not accept that the section 10 decision was taken only to stymie an in-country right of appeal under section 82(2)(d) of the 2002 Act.
91. I also accept that the Secretary of State had sufficient evidence to satisfy herself that this was an appropriate case to make a removal decision, guiding herself in accordance with the EIG. The appeal structure set out by Parliament specifically envisages that challenges to the factual accuracy of that evidence take place through an out-of-country appeal. Moreover, the information which informed the Defendant's decision as to deceit was put before the Claimant, albeit in the text of the refusal decision rather than the removal decision.
92. This is not therefore a case, like that considered in Anwar, in which there is an arguable issue of abuse of process in the decision to proceed under section 10 of the 1999 Act such as to justify invoking the jurisdiction of the Administrative Court.
93. The only aspect of this limb of the challenge which has given me cause to pause is the submission that the allegation of involvement in deceit was made 'out of the blue', and that the Claimant had no opportunity to defend himself because he was not afforded an interview under caution before the proposed removal decision was served upon him. Unlike the position in the Lim, Thapa, Jan and Ali, it is said, there was no interview in which the Claimant might have made his case before a decision was taken as to whether or not to make a removal decision. It is suggested that this is an 'abuse of process' argument as in Anwar, which might have made the case sufficiently special or exceptional to justify the Administrative Court's exercise of discretion to consider the application for judicial review instead of leaving the matter for determination on appeal by the FTT on an out of country appeal.
94. In an appropriate case, where an allegation is made 'out of the blue' (as the Claimant put it), it is conceivable – I say no more than that – that it might be arguable that the failure to afford any opportunity to offer an explanation before service of a removal decision might be unfair. That would be in circumstances where the factual basis for the decision was such that something the Claimant could say in response might cause the Defendant to reconsider her decision before making it final (by analogy with the Uluyol case, which was analysed and applied in Thapa).
95. But in the present case, I consider that any such argument would be academic. The ETS assessment was based on three separate appraisals of the voice of the proxy tester. I have Mr Ali's witness statement which presumably contains what he would have said under caution. All this contains is a bare denial of the allegation that he engaged a proxy tester. It is hard to see what else he could have said. It is also impossible to believe that this denial could have changed the decision which the immigration official making the removal decision reached. The question of whether or not a proxy tester was used is a straightforward dispute of fact and, as the Defendant pointed out to me, the procedure in the Administrative Court is not apt for determining such disputes, whereas the procedure in the FTT is.
96. For this combination of reasons, I do not consider this to be an appropriate case for me to consider the merits of the challenge on fact or law to the removal decision.
97. Given my finding on that issue, I do not need to address the question in ground c as to what would have been the appropriate test to adopt in considering the validity of the Defendant's findings of deceit.
98. It is common ground that, having failed to find that the removal decision was unlawful, I am not in a position to address any question which may in future arise as to the legality or otherwise of the period of detention between 11 August and 1 September 2014.
99. For all those reasons, this application for judicial review is dismissed.

Decision on permission to appeal

100. Having handed down this judgment in draft form, I have received an application for permission to appeal. This is made on the basis that Lord Justice Briggs has granted permission to appeal on the papers from a refusal of permission to proceed by way of judicial review in a case which is said to raise similar issues.
101. I do not consider this is an appropriate case in which I should grant permission to appeal. My judgment is clear, and I understand that this is one of the few cases in which permission to proceed to a full hearing in the Administrative Court has even been granted. Briggs LJ did not have the benefit of full submissions when granting permission. Any application for permission to appeal from this substantive judgment will have to go to the Court of Appeal.