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
		20 February 2015

Philip Mott QC :

1. The Claimant is a Nigerian national, now aged 53, who challenges the decision of the Defendant to refuse him leave to enter the UK as a returning resident and to remove him to Nigeria. Permission was granted by His Honour Judge Stephen Davies, sitting as a Judge of the High Court, on 14 October 2013.
2. As a preliminary point I was required to rule on the Defendant's application to extend time for filing her detailed grounds of defence until 19 December 2014. With these came a substantial amount of additional evidence, and further documents were included in a hearing bundle served on 13 January 2015. The Claimant did not assert any prejudice and I granted the Defendant's application for reasons which I set out in an oral judgment during the hearing.
3. The underlying background, which was not in dispute before me, is that a letter purporting to grant the Claimant indefinite leave to remain in the UK ["ILR"] was procured irregularly by a dishonest employee of the Home Office who has since pleaded guilty and been sentenced to a term of imprisonment. What is in dispute is the effect of this on the Claimant's status when he returned to the UK on 28 December 2012.
4. Since the Defendant clearly invited the inference that the Claimant was dishonestly involved in procuring that letter, an assertion denied by the Claimant, I asked Mr Corben, who appeared for the Claimant, whether he was content for me to make a decision on the papers without hearing evidence subject to cross-examination. He informed me that he was content, and that the Claimant could not provide any further evidence.

Factual background

5. The Claimant allegedly arrived in the UK in the early 1990s. I need make no finding about this, but proceed on the assumption that it is true. At that stage he asserted that he was from Martinique, and thereby was a citizen of France and an EU national. That was false, and it is accepted that the identity card he then relied on was forged.
6. On 2 November 2004 the Claimant wrote to the Immigration and Nationality Directorate ["IND"] in Croydon asking about the Family Indefinite Leave to Remain programme announced by the Secretary of State the previous year. The response, by letter dated 2 December 2004, was addressed to the Claimant's wife as she was an eligible asylum seeker through whom any ILR for the Claimant would accrue. It requested the completion of a questionnaire, which was returned dated 10 December 2004. On 26 April 2005 the IND responded asking for birth certificates, which were sent.
7. The decision was communicated by letter dated 2 November 2005. It informed Mrs Blaise that she and her daughter had been granted ILR. It appears that the Claimant was not included as he was understood to be a French national entitled to residence as an EU national. Mrs Blaise wrote on 17 November 2005 to question this omission, stating that the Claimant arrived in England with a forged French identity card, and that his true nationality was Nigerian. A further letter was written by her on 29 November 2005 directly to the decision maker, named as Timothy Greene.
8. All this confirms that the decision letter or letters of 2 November 2005, as sent out to Mr and/or Mrs Blaise on that date, did not include the Claimant in the grant of ILR. All the evidence shows that at this time the Claimant and his wife were living together at one address. It is impossible to conclude other than that the Claimant was aware of this position, although the letters querying the grant were sent in the name of his wife.
9. The next document is an application dated 10 April 2006 on Form NTL asking for a 'No Time Limit' stamp to be placed on the passports of the Claimant and his wife. The response from the IND was sent to the Claimant in a letter dated 29 June 2006 which pointed out that no documentary evidence had been submitted to show that he had been granted ILR, and returned his passport. Mrs Blaise was sent a letter on 30 June 2006 enclosing her passport endorsed with the 'No Time Limit' stamp.
10. The Claimant responded by submitting a further application in Form NTL dated 7 July 2006. It was accompanied by a covering letter from him dated 11 July 2006 stating "please find attached herewith documentary evidence of my indefinate [sic] stay granted as ILR family unit exercise". It is accepted that this "documentary evidence" was a letter dated 2 November 2005 apparently granting ILR to the Claimant, his wife and daughter. This is the letter referred to in paragraph 3 of this judgment.
11. On 25 July 2006 the IND, apparently accepting this letter as genuine, returned the Claimant's Nigerian passport endorsed with the 'No Time Limit' stamp. The Claimant asserted, and it may well be true, that he used this on a number of occasions to travel from the UK and to return without challenge prior to 28 December 2012.
12. On 10 November 2011 a former employee of the Defendant named Samuel Shoyeju was sentenced to 7 years' imprisonment, having pleaded guilty to misconduct in a public office. His plea involved acceptance of 46 cases of improper conduct in relation to leave to enter or remain, including that of the Claimant. Inquiries have disclosed the following relevant matters in relation to the letter which had been submitted by the Claimant in July 2006:

i) The signature, whilst it appeared to be that of an officer with the initials 'BR', the same as those of the officer who signed the genuine grant to the Claimant's wife, was not in fact that officer's signature or anything like it.

ii) The validating stamp was not numbered 1345, as it was on the genuine grant to the Claimant's wife, but 1561. That stamp was in November 2005 issued to a different officer with the initials 'LB' who was based in Liverpool, yet the letter purported to come from Croydon.

iii) The Home Office computer showed backdated entries purporting to approve the grant of ILR to the Claimant in 2005, but in fact made at 07:47 on 8 April 2006 using the login details of 'VCG', an employee managed by Samuel Shoyeju who worked in the Asylum Decision Support Unit. She would not have had either authority or cause to issue or approve an ILR decision.

13. On 28 December 2012 the Claimant was stopped by immigration officers at Heathrow airport, having flown in from Nigeria. He said that he had left to go there on 5 December 2012, just over three weeks earlier. The Claimant's immigration record had been flagged as a result of the criminal proceedings in Basildon. After he was stopped, but before any decision was made, the UKBA Minute Sheet shows that contact was made with Richard Jeal, the Chief Immigration Officer involved in the investigation who has submitted a witness statement in these proceedings. He gave the officer at Heathrow details to the extent that Samuel Shoyeju had admitted this as one of 46 cases in which he had been involved in fraudulent activity.
14. Initially a notice in Form IS.82H was issued, refusing the Claimant leave to enter the UK. This said nothing about cancelling his purported ILR. Later the same day a further notice in Form IS.82A was substituted, which is the decision under challenge in these proceedings.
15. This decision states as follows:

"You have asked for leave to enter the United Kingdom as a returning resident for an indefinite period of time but I am satisfied that you obtained a previous Leave to Enter/Remain by deception. You have presented a Nigerian passport in the name of Roland Olusoji Blaise which contains a visa endorsed ILR (indefinite leave to remain). I have reasons to believe that you obtained your ILR fraudulently. I therefore cancel your ILR. I am satisfied this is the case because there is no evidence in our records of your ILR being rightfully granted, nor could you satisfactorily explain how and when you qualified and obtained this status in the United Kingdom. You stated today that you qualified for Indefinite Leave under the family exercise, however, our records show that your previous application for ILR was refused on 29 June 2006. I am therefore satisfied that your current visa has been obtained fraudulently. Therefore the visa you have presented is not considered valid. Furthermore, as a Nigerian national you are required to hold a valid visa to enter the United Kingdom but you hold no such visa. I therefore refuse you leave to enter the United Kingdom."

The letter went on to set Removal Directions for removal to Nigeria at 22:35 on the same day, 28 December 2012.

16. The removal did not take place because of the intervention of the Claimant's solicitor. In due course he was granted tribunal bail.
17. On 14 September 2013, after the issue of these proceedings, the Defendant sent a clarification letter to the Claimant's solicitors, having considered the evidence provided by them. It repeated the assertion that the Claimant was never (rightfully) granted leave to remain. It continued:

"The leave he purports to hold was obtained through the activities of a corrupt member of staff in the Home Office who was convicted of misconduct in a public office. The leave your client believes to be valid was obtained through fraudulent means.

In the Notice of Refusal of Leave to Enter dated 28 December 2012, the Secretary of State purported to cancel your Indefinite Leave to Remain. There was no need for this purported cancellation. Your client has never validly held Indefinite Leave to Remain in the United Kingdom and there was no grant of leave for the Secretary of State to cancel. However, the decision to refuse your client leave to enter the United Kingdom is maintained."

18. The only other material addition from the subsequent correspondence is that on 23 December 2014, no doubt on instructions, the Claimant's solicitors said that "our client has misplaced the original letter granting him ILR in the UK".

The parties' submissions

19. Mr Corben, for the Claimant, raises three issues for my decision:

i) The decision letter purported to cancel the Claimant's ILR. Having done so, the Defendant was bound to accord to the Claimant an in-country right of appeal.

ii) In fact, despite the activities of Samuel Shoyeju, the Claimant should be treated as someone who had ILR. Thus there was a need to cancel it, which carried with it an in-country right of appeal.

iii) Even if there was no grant of ILR, and no need to cancel it, the decision to issue directions for removal the same day was irrational and unlawful. Had the removal decision been delayed the Claimant could have raised a human rights claim which would have carried an in-country right of appeal.

20. The practical significance of these issues lies in sections 82, 88 and 92 of the Nationality, Immigration and Asylum Act 2002, which deal with rights of appeal. In summary, as these provisions apply to this case:

i) If a person has ILR which is cancelled, for instance because it was obtained as a result of false information given by him, that cancellation is to be treated as refusal of leave to enter at a time when he had a current entry clearance (Immigration Act 1971, Schedule 2, paragraph 2A(2), (8) & (9)). That would give him a right of appeal from within the UK by virtue of section 92(3) of the 2002 Act.

ii) If the immigration decision consists of refusal of leave to enter the UK when he has no current entry clearance, that gives rise to no right of appeal except on human rights grounds. Even that appeal will have to be pursued from out of the UK unless a human rights claim has been made whilst in the UK which complies with section 92(4).

iii) In Nirula v FTT & SSHD [2011] EWHC 3336 (Admin) Mr CMG Ockelton, sitting as a deputy High Court Judge, expressed the view that a human rights claim must be made before the decision under challenge if it is to qualify as one made whilst in the UK. Thus, if the decision to remove the Claimant is allowed to stand, it will be too late for him to make a human rights claim which is effective in giving him an in-country right of appeal. The view expressed by Mr Ockleton may have been obiter, and may or may not be correct. It is not necessary for me to consider it, let alone decide on it, but it lies behind the submissions made on behalf of the Claimant in this case.

21. Mr Gullick, for the Defendant, submitted that the purported cancellation was a nullity as no valid ILR has ever been granted. Alternatively, the cancellation was of the 'No Time Limit' stamp on the Claimant's passport, which would not give rise to an in-country right of appeal. He submitted that the letter purporting to grant the Claimant ILR was a forgery, and could not be deemed to be valid as far as the Claimant was concerned. And he submitted that the Claimant never made any human rights claim until the summary grounds were served in these proceedings, so no delay in issuing removal directions would have assisted the Claimant. In any event, that part of the decision was well within the reasonable discretion of the immigration officer concerned.
22. I will elaborate on these submissions in dealing with the issues in sequence. Logically, it seems to me that the correct starting point is the second issue relating to the status of the letter purporting to grant the Claimant ILR.

Was there ever an effective grant of ILR to the Claimant?

23. The first and undisputed proposition is that the letter was not sent out in the normal course of the Defendant's business by a person acting in accordance with his authority. It was procured by Samuel Shoyeju, whether or not he actually produced it, and bears no identifiable or authorised signature.
24. Mr Corben submitted that the document was produced with ostensible authority, and the Claimant would be entitled to rely on it unless he were in some way implicated in a conspiracy. As to this, there is no evidence from the Claimant or from Samuel Shoyeju that he was so implicated. If a forgery were produced by someone unconnected with the Home Office, the Defendant would not be bound by it. But this was an 'inside job' and the Defendant must accept responsibility for the dishonesty of their own employee.
25. Mr Gullick drew my attention to the Court of Appeal case of R v Secretary of State for the Home Department, ex parte Ku [1995] QB 364. That concerned work permits issued contrary to departmental instructions. None contained false information, was obtained by misrepresentation or was a forgery. On the contrary, each was issued by an official of the correct department, and stamped with the correct official stamp of that department. They were inappropriate rather than invalid. The applicants were assumed to have acted on them in good faith. The Court of Appeal held that such irregularity did not invalidate the permits so as to make the applicants illegal entrants.
26. This decision was in contrast to that in R v Immigration Officer, ex parte Chan [1992] 1 WLR 541. There the file could not be traced and almost certainly never came into existence. Nevertheless, a work permit had apparently been produced by an employee of the appropriate department. The Court of Appeal held the work permit to be an invalid document, and thus of no effect. That decision was accepted as binding on the Court of Appeal in ex parte Ku, and is binding on me.
27. In my judgment this case is firmly in the ex parte Chan category. There is no record of a genuine decision to grant ILR to the Claimant. The letter has no valid signature. The departmental stamp is genuine, but relates to someone in the wrong department, without authority to issue a grant of ILR. It is, in my judgment, an invalid letter, and thus of no effect.
28. In coming to this conclusion I have not had to consider the knowledge of the Claimant. The conclusion would be the same whether he acted in good faith or not. If it were relevant to consider his state of mind, the evidence before me points only one way, to the conclusion that the Claimant was dishonestly involved, for the following reasons:

i) He must have seen the genuine letter of 2 November 2005, and been involved in the queries about the absence of his name on 17 and 29 November 2005. As a result, he cannot have believed that a letter dated 2 November 2005 purporting to include him in the grant of ILR was a genuine document.

ii) He does not suggest that any covering letter accompanied the bogus letter, as one accompanied the genuine letter granting ILR to his wife and daughter.

iii) The backdated entries on the Home Office computer were made on 8 April 2006. Only after this could the bogus letter have been produced. On 10 April 2006, just two days later, the Claimant was involved in the first NTL application for a stamp on his and his wife's passports. This coincidence of dates raises the inference that he was directly or indirectly implicated in the activities of Samuel Shoyeju, and cannot have come into possession of the bogus letter innocently.

iv) At no time, despite all the evidence of fraud since the summary grounds of defence were filed on 8 May 2013, has the Claimant given any explanation as to how the bogus letter came into his possession, neither in a witness statement, nor in correspondence from his solicitors, nor through the mouth of Mr Corben on instructions. On the contrary, Mr Corben told me in terms that the Claimant could not provide any further evidence.

29. Mr Corben raises an alternative submission relating to this second issue. He directs my attention to the Defendant's letter of 25 July 2006 returning the Claimant's Nigerian passport endorsed with a 'No Time Limit' stamp and submits that this can amount to a grant of ILR. I disagree. Firstly, there is established authority that an NTL endorsement does not itself confer ILR, but only records an earlier grant (see R (Hashmi) v SSHD [2002] EWCA Civ 728, at paragraph [16]). If the stamping of the passport confers no rights, still less can the covering letter returning the passport. Secondly, there is nothing in the letter to suggest that any new decision has been made. Indeed, the previous letter of 29 June 2006 makes it clear that documentary evidence of a previous grant of ILR is required before an NTL endorsement can be made. And thirdly, the NTL application form itself makes clear that it is for "someone who already has indefinite leave to enter or remain in the United Kingdom".

Did the purported cancellation of ILR give rise to an in-country right of appeal?

30. I turn therefore to Mr Corben's first issue. It is true that the decision under challenge purports to cancel the Claimant's ILR. But it also asserts that the visa presented as evidence of the grant of ILR was not valid, because it had been obtained fraudulently, and therefore the Claimant held no visa. Overall, it is perfectly clear that the officer concerned was saying that no valid ILR had ever been granted. As a result, there was no outstanding ILR to cancel.
31. If the officer intended to cancel a grant of ILR, his action was ineffective as there was no ILR to cancel. The fact that, on one reading, the officer purported to cancel an ILR which he asserted had never validly been granted does not give rise to an in-country right of appeal.
32. An alternative reading is that the officer merely intended to cancel the NTL endorsement on the Claimant's passport. In support of this reading is the use in the decision of the expression "visa endorsed ILR". When the officer states that he has reason to believe that the Claimant obtained his ILR fraudulently, he clearly refers to this "visa endorsed ILR". So, when he immediately goes on to state that he is cancelling the Claimant's ILR, he must be referring to this "visa endorsed ILR". If so, that is not the cancellation of ILR as the stamp does not confer ILR (see Hashmi), and no in-country right of appeal arises.

Was it reasonable to order removal the same day?

33. The information available to the officer making the decision was that the Claimant said he had been living in the UK for over 20 years, was married (although he was no longer living with his wife) and had a daughter now of full age. On the other hand, the evidence showed that he had initially entered using a false French identity card, and had remained in reliance on a fraudulent grant of ILR. When challenged, the Claimant became angry and asserted that his grant of ILR was genuine. He raised no human rights issues.
34. I was referred to the decision of Stephen Morris QC in Alighanbari v SSHD & FTT [2013] EWHC 1818 (Admin), which deals with what amounts to raising a human rights claim. It is a matter of substance, not form, but there must be some assertion of facts showing family or private life, coupled with a claim that removal would interfere with this. No such claim was made here. The Claimant apparently was no longer living with his wife, and his daughter was grown up. Whatever the full and true position may have been, there is nothing in what the officer was told at the time to raise a human rights claim.
35. The officer had to deal with somebody who had just arrived from about three weeks in Nigeria, who was apparently implicated in fraudulently obtaining ILR, and who had separated from his wife and was living with a girlfriend. In these circumstances the decision to put him straight back on a plane to Nigeria was well within the range of reasonable and lawful decisions. What follows from that is a matter for others, if it arises.

Conclusion

36. For these reasons the claim fails on all grounds and judicial review is refused. If the parties cannot agree about costs they should be decided on written submissions in the usual way.