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
		22nd April 2015

Philip Mott QC :

1. The Claimant is a 25 year old Indian national who has been in the UK since 2009 on a student visa. In June 2014 she was arrested and detained on the basis that she had been working in breach of her visa conditions. She denies that, and seeks to challenge the Defendant's actions by way of judicial review. Permission was granted by HHJ Allan Gore QC, sitting as a judge of the High Court, on 25 July 2014.
2. In essence, the challenge raises two principal issues:

i) Is this a proper case for judicial review of the Defendant's decision that the Claimant was working, or should the Claimant be left to challenge it in the First Tier Tribunal in an appeal out of country? If the decision were to be reviewed in this court, it is agreed that the precedent fact of whether the evidence on paper discloses that the Claimant was working in breach of her visa conditions would require a primary decision by me, not a review of the Defendant's decision on Wednesbury grounds.

ii) Is the decision open to challenge for failing to consider whether to curtail the Claimant's leave, thus giving her an in-country right of appeal, rather than serving a removal decision against which there was only an out of country right of appeal?

3. If, on either ground, the decision is quashed, the further issue arises of whether the Claimant's detention from 6 June to 8 August 2014 was unlawful.

Factual background

4. The Claimant was born on 11 May 1989. She entered the UK as a Tier 4 (General) student on 15 October 2009, with leave valid to 8 June 2012. That leave was subsequently extended to 26 January 2015, but subject to a no work condition. On 28 April 2014 the Claimant was informed that her college's Tier 4 sponsor's licence had been revoked. By the time of her arrest she had not found a replacement college at which to continue her studies.
5. On Friday 6 June 2014 she was encountered by immigration officers at the Aruna Hair & Beauty Salon in Slough. They were acting on intelligence and had a warrant to enter the premises. According to the contemporaneous notes of one of the officers, he saw two ladies (of whom the Claimant was one) both dressed in black clothing and attending to another lady's foot. The Claimant was questioned under caution, and explained her position as follows:

Q. What are you doing at Aruna Beauty?

A. I'm learning. I came only 2/3 days ago.

Q. What are you learning?

A. Eyebrows and waxing.

Q. What times have you been here?

A. 11 – 1700 hrs today, 11 – 4 Sat and Sun.

Q. Who told you that you can have a trial?

A. The owner is my aunt. We call her Pinky.

Q. Did she check your documents?

A. No, she told me it's a busy parlour, so come help me.

Q. What college do you study at?

A. Training Connect in Hounslow in business management. I have just taken my exams.

Q. What days do you attend college?

A. Thurs and Fri. I have a visa but my college is blacklisted.

Q. Have you been paid any money?

A. No, my aunty said first you learn and then we pay you.

Q. What was (sic) you doing to the lady when we walked in?

A. I was watching the other lady. I was waiting for another customer.

6. The Claimant was arrested and detained. It was discovered that she had a husband in the UK of Indian nationality who was her dependent. She was taken to her home address in Hayes but her husband was not there and could not be contacted. A search was made for her passport but it was not found. She said it was with a solicitor, but could not give an address for the solicitor. She was taken to Eaton House where forms were started to obtain an emergency travel document, but she refused to sign anything.
7. She was served with an IS151A Notice to a Person Liable to Removal, which stated that she had failed to observe a condition of leave to remain because "you have admitted to helping out, which is classed as employment and is breach of your conditions". The notice told her that she would be removed to India. The service of the notice was authorised by a more senior officer, CIO Beaven. He provided a statement on 9 July 2014 to say that at the time "I did not consider curtailment as appropriate as I was satisfied there was a clear breach of her conditions".
8. It is agreed that the Claimant's biometric residence permit at the time of her arrest was subject to a "no work" endorsement. This is explained in the notes accompanying the grant of her renewal application as meaning that "you are not permitted to work, and all employment is prohibited", except for a work placement as part of her course, which would not apply here.
9. It is also agreed that the proper definition of "work" is the same as "employment" in paragraph 6 of the Immigration Rules, as follows:

"employment" unless the contrary intention appears, includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self employment and engaging in business or any professional activity.

In this case the defendant relies on the activity observed and admitted as amounting to "unpaid employment".

The appropriateness of judicial review

10. In this case it is accepted that the Claimant has an alternative remedy, that of appealing out of country to the First Tier Tribunal. Such an appeal would hear evidence, including from the Claimant herself, and would make primary decisions of fact based on that evidence as to whether the Claimant was in truth in breach of her visa conditions. In the light of that agreement I need not in this judgment spell out the statutory basis for that right. The issue is whether that is a suitable alternative remedy, or whether judicial review should be available to prevent the removal of the Claimant back to India.
11. It is appropriate to start with the Court of Appeal decision in SSHD v Lim [2007] EWCA Civ 773. Mr Lim had leave to remain in the UK and to work at a specified restaurant. He was encountered by immigration officers at a different restaurant. They said he was working there; he denied it. Removal directions were set prior to the issue of judicial review proceedings. It was agreed that such proceedings would require the court to determine the existence or non-existence of the precedent fact, namely, whether or not Mr Lim had been working in the second restaurant. The appeal therefore turned on the propriety of using judicial review to challenge the factual basis of a removal decision against which an out of country appeal lay to the tribunal.
12. The principal judgment was given by Sedley LJ, who set out the disadvantages to the individual of having to appeal from out of country. He also noted the well-established principle that judicial review is a remedy of last resort. Rather than distinguish between one kind of precedent fact and another in removal cases, he concluded that every case is in principle both appealable and reviewable, but the use of judicial review should be calibrated, by the exercise of judicial discretion, to the nature of the issues. At one end of the scale is the hypothetical case where the immigration officer seeks to remove a British citizen to a country with which he has no connection. That would be clearly an appropriate case for judicial review. By contrast, issues of fact other than identity "are rarely likely in practice to escape the adverse exercise of discretion … Were it otherwise, the courts would be emptying Parliament's prescribed procedure of content". Despite the removal of Mr Lim being described as a "colossal overreaction to what, even if proved, was a venial breach of condition", the appeal was allowed and the judicial review of the removal decision set aside.
13. The case of Lim applied to removal cases the established principle that, in the absence of special or exceptional factors, the High Court would refuse to entertain an application for judicial review where there was a statutory channel of appeal. It was followed and reinforced in R (RK (Nepal)) v SSHD [2009] EWCA Civ 359. In relation to Lim Aikens LJ said, at paragraph [33]:

"The importance of that decision lies in its emphasis on the appeal structure that Parliament has laid down in the 2002 Act with respect to various types of "immigration decision". The courts must respect that framework, which is not open to challenge in the courts by way of judicial review unless there are "special or exceptional factors" at play. Therefore, except when such "special or exceptional factors" can successfully be invoked so as to give rise to a right to judicial review, the court must accept that an out of country right of appeal is regarded by Parliament as an adequate safeguard for those who are removed under section 10 of the 1999 Act."

14. There are many first instance and tribunal decisions following this guidance. I mention only one for its factual similarity to the present case. In R (Mohamed Bilal Jan) v SSHD [2014] UKUT 00265 (IAC) the claimant had a no work condition but was encountered at a hairdressers where he had assisted unpaid for two days per week over a period of two months. The Upper Tribunal, with Bean J (as he then was) and Mr CMG Ockelton (Vice-President), decided that it was not a proper case for judicial review.
15. The Claimant here submits that the evidence is clear, undisputed and all points one way. Where the decision is one which "flies in the face of reality" it would be unfair, and in breach of the court's duty under Article 5 of the ECHR, to refuse to consider judicial review just because there is an out of country appeal.
16. The Claimant further submits that the evidence here does not begin to satisfy the Defendant's own test in Chapter 50.5.2 of the Enforcement Instructions and Guidance, which states:

"There must be firm and recent evidence … of working in breach, including one of the following:

an admission under caution by the offender of working in breach;

a statement by the employer implicating the suspect;

documentary evidence such as pay slips, the offender's details on the pay roll, NI records, tax records, P45;

sight by the IO [immigration officer], or by a police officer who gives a statement to that effect, of the offender working, preferably on two or more occasions, or on one occasion over an extended period, or of wearing the employer's uniform. In practice, this should generally be backed up by other evidence."

17. The Defendant submits that Lim and subsequent authorities make it clear that in general an out of country appeal is a suitable alternative remedy, notwithstanding that it may appear harsh or make the appeal more difficult to pursue. The evidence is sufficient to found a reasonable conclusion of working in breach of visa conditions, whatever might be the result of an appeal which heard evidence. There are issues of interpretation of evidence, and credibility, which can only fairly be decided by a tribunal listening to the evidence and testing it. The EIG requirements are satisfied by the admissions under caution by the Claimant.
18. In my judgment there are no special and exceptional factors justifying the use of judicial review. This is not a case where the immigration officer's conclusion flies in the face of reality, or where the evidence all points one way. There are issues of credibility relating to some subsequent statements by the Claimant, but also there are questions as to the proper interpretation of what was seen and said. Was the Claimant in reality wearing a kind of uniform? Was she about to deal with the next customer, as the immigration officer understood but the Claimant did not actually say? Was the "helping" really training for a prospective paid employment, now that she had taken her exams and her college had lost its sponsor status? These are not questions easily assessed on judicial review. I could not classify the immigration officer's interpretation as irrational, nor could I easily decide on the precedent fact as a primary decision-maker on paper.
19. I therefore conclude, in line with Lim and the other authorities, that this is a case in which judicial review of the decision that the Claimant was working in breach of her visa condition should be refused on discretionary grounds because of the alternative remedy of an out of country appeal which is available to her.

Failing to consider whether to curtail leave

20. Even if an individual is in breach of his or her visa conditions, the immigration officer does not have to make a removal decision. As an alternative he can decide merely to curtail the individual's leave to remain. That is an immigration decision which carries with it an in-country right of appeal. This much is agreed by both parties, and I need not set out the statutory provisions which give this discretion.
21. In R (Thapa) v SSHD [2014] EWHC 659 (Admin) judicial review was granted of a removal decision on the grounds that the decision-maker had not appreciated that there was such a discretion, and had therefore not exercised it. Following that decision, Chapter 51 of the EIG was amended to reflect it, and now requires the officer to follow a two stage decision-making process. The first stage is to consider whether the individual is in fact liable to administrative removal. In this case that was the consideration of whether the Claimant had been working in breach of her visa condition. The second stage is "to consider whether it would be fair in all the circumstances to treat the individual as a person liable to administrative removal and serve an IS151A notice on them". The EIG goes on to explain how that second stage decision should be approached and concluded, but the Claimant's complaint here is that it was not apparently undertaken at all, not that it should have led to a different result.
22. The EIG at the time of the decision required the exercise of that discretion to be documented at the time. In Thapa it was apparently found to be necessary to record it in the removal decision itself. This was rejected by the Upper Tribunal in Bilal Jan, and that revision was adopted by Green J in R (Khan) v SSHD [2014] EWHC 2494 (Admin). The decision in Bilal Jan was promulgated prior to the decision in this case, although a further amendment of the EIG to reflect it did not come until later.
23. In the present case it is clear that the arresting officer, and his superior who took the decision to issue a removal decision, were aware of the existence of the discretion. The statement of CIO Beaven is specific about this. It is not a case of a later revision of the reasons to improve the position, but a statement to explain the decision-making process at the time and the considerations borne in mind then. It is supported to some extent by entries in the GCID notes headed "Mit Circs", setting out mitigating circumstances which needed to be considered in deciding whether to opt for administrative removal or curtailment of leave. I accept that the information may also be relevant to the decision to detain, but the heading tends to support its relevance to the action taken in relation to the breach.
24. The absence of any reference to the exercise of this discretion on the fact of the removal notice does not make it unlawful, as the Upper Tribunal found in Bilal Jan. I accept and follow that decision. If it conflicts with Thapa I decline to follow Thapa to that extent. In fact the deputy judge in Thapa, Helen Mountfield QC, has explained her judgment in the later case of R (Shahbaz Ali) v SSHD [2014] EWHC 3967 (Admin) at paragraph [77] as not being intended to impose a general requirement to record this exercise of discretion in the decision notice.
25. It follows that there is no clear unlawfulness in the making or recording of the decision, and judicial review of the exercise of that discretion should be refused. The Upper Tribunal in Bilal Jan pointed out that the First Tier Tribunal has jurisdiction to consider issues relating both to fairness and to whether the respondent erred by failing to appreciate that there was a discretion whether or not to make a removal decision. For this reason, even if there were an arguable case of failing properly to exercise this discretion, I would hold that judicial review is not an appropriate remedy, and should be refused on discretionary grounds as there is a suitable statutory alternative in the form of an out of country appeal.

Conclusion

26. My conclusion is that judicial review must be refused for the reasons set out above. In the light of that, it is not necessary for me to go on to consider whether the quashing of the removal decision would inevitably have led to the Claimant's detention being unlawful.
27. If costs cannot be agreed between the parties, the appropriate order can be decided on written submissions in the usual way.