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
		05/03/2015

His Honour Judge Clive Heaton QC:

1. This is a substantive hearing in a claim by way of Judicial Review. Permission to proceed was granted by Mr Justice Foskett on one ground after an oral renewal hearing on the 17^th June 2014.

The essential background

2. The Claimant is a national of Pakistan. He arrived in the UK on 4^th January 2010 and was granted leave to enter as a Tier 4 student until 10^th April 2011. That leave was subsequently extended to 30^th December 2013. The Claimant entered further education and completed a Diploma in Business Management.
3. On the 12^th December 2012 the Claimant made an application for a Tier 1 (Entrepreneur) Visa.
4. On the 26^th July 2013 the Claimant by his solicitors wrote to the Defendant seeking to withdraw his Tier 1 application. He alleged that he himself had been the innocent victim of a fraud and that forged documents had been provided to him which he had included in his application. There is no issue between the parties that the Defendant received that letter on 29^th July 2013.
5. On the 22^nd August 2013 the Defendant went on to determine the Claimant's application notwithstanding the Claimant's letter seeking to withdraw it. The application was refused on the basis that the Claimant had submitted false statements and letters from the Habib Metropolitan Bank Ltd with his application. The Defendant went on to say that she was satisfied that the Claimant had used deception in his application. The Claimant was told that he did not have a right of appeal in respect of this decision. There is no issue in this case as to the accuracy of that proposition as to appeal.
6. In addition on the same day the Defendant gave notice to the Claimant that he was a person liable to removal on the basis that he was a person who had sought leave to remain by deception. He was also given notice that a decision had been taken to remove him from the UK under s10 Immigration and Asylum Act 1999 (IAA). The Claimant was informed that he had a right to an out of country appeal in respect of this decision by way of s82(1) Nationality, Immigration and Asylum Act 2002 (NIAA).
7. The Claimant launched these proceedings on 2^nd September 2013. At an oral renewal Mr Justice Foskett gave permission for the claim to proceed on one ground only; that the Defendant acted unlawfully and irrationally by failing to grant the Claimant an in country appeal.

The Law

8. The most material statutory provisions are s10 Immigration and Asylum Act 1999 and s82 Nationality Immigration and Asylum Act 2002. I need not set those provisions out in full here.
9. Perhaps the most helpful authority in respect of the use of judicial review in connection with the exercise of s10 by the SSHD in this context is contained in R(Amzat Rauf Khan)-v-SSHD [2014] EWHC 2494 (Admin). Here at paragraph 70 Mr Justice Green summarises the principles that have been established:

In this section I have set out to summarise the main principles arising from the case law. This summary reflects my clear view that the reasoning of the Upper Tribunal in Jan is to be preferred to that of the High Court in Thapa:

i) The High Court retains a residual discretion to hear judicial review cases even where there exists a parallel statutory appeal to the First tier Tribunal whether that appeal is an in-country, or, an out-of-country, appeal.

ii) However, judicial review is a remedy of last resort. Where a suitable statutory appeal procedure is available the High Court will exercise its discretion in all but special or exceptional cases by declining to entertain an application for judicial review (Lim; Willford).

iii) As an exception to this there is a category of case, defined as relating to precedent facts, where the High Court will assume jurisdiction. These include certain facts upon which the application of the jurisdiction to exercise the power under section 10 decision depends (Khawaja, Lim).

iv) In cases of precedent fact the High Court has jurisdiction in addition to that of the statutory Tribunal.

v) Examples of "precedent facts" include: (i) a claim by a person proposed to be removed that he was, in fact, a British citizen; (ii) where the person whom it is proposed to remove denies being the person it is intended to remove (Lim).

vi) In principle proof of observance, or breach, of conditions attached to entry clearances might, de facto, operate as precedent facts. However, were every case of alleged breach of condition to amount to a precedent fact conferring jurisdiction upon the High Court this would undermine the statutory scheme which allocates to persons subject to removal decision based upon alleged breach of condition an out of country appeal and not an in-country right of appeal or judicial review and hence the High Court needed to be cautious in treating all alleged breaches of conditions as precedent fact cases (Lim; RK (Nepal).

vii) In exercising its power to exercise supervisory (judicial review) jurisdiction in this field the High Court must be aware that Parliament has deliberately allocated primary responsibility for determining disputes surrounding immigration and asylum decisions to the Tribunal system and that it would therefore run counter to the will of Parliament for the High Court routinely to assume to itself disputes about matters falling, prima facie, within the appellate Tribunal structure (Lim; RK (Nepal); Jan).

viii) The High Court would therefore only exercise its supervisory judicial review powers in special or exceptional cases (Lim; RK (Nepal); Jan).

ix) The Court will need to examine carefully the "nature" of the issues in dispute (Lim). Examples of exceptional or special cases where the High Court might accept jurisdiction include where there is generally reprehensible or abusive conduct on the part of the Defendant (Anwar).

x) The mere fact that Parliament has chosen to introduce an appellate procedure which can operate harshly, for example in relation to out-of-country appeals, is not in itself a special or exceptional reason for the High Court to assume jurisdiction. Were it otherwise the system of out-of-country appeals would be rendered toothless given that in many cases the out-of-country procedure operates to the disadvantage of the appellant. If this were a factor militating in favour of judicial review that would serve to trigger a judicial review in the vast majority (if not all) section 10 cases (Lim; RK (Nepal); Jan). The same applies where the High Court takes the view that it is more effective and convenient for it to hear the case; this is however not a good reason to assume jurisdiction (Willford).

xi) The fact that an appeal might raise issues of public importance or significance, is not, per se, a special or exceptional reason for the High Court to determine the matter by way of a judicial review (Jan).

xii) Disputes over such matters as whether the Secretary of State correctly deployed the enforcement procedure under section 10 (and thereby precluded an in-country appeal) instead of the less draconian curtailment procedure are equally not special or exceptional and are apt to be determined by the Tribunal which has jurisdiction to determine whether the SSHD acted lawfully and fairly (RK (Nepal); Jan).

xiii) It must necessarily follow from the above that the fact that detention (or other collateral) issues are raised as part of a judicial review which are not the due subject of the jurisdiction of the Tribunal are not a reason to allow all or any of the related removal decisions to be brought into the High Court. To conclude otherwise would provide a powerful incentive for a Claimant, who has been subject to detention, to advance a detention challenge and claim in order to lever an otherwise inadmissible disputed removal decision into the High Court. Parliament has allotted disputes over immigration and asylum decisions to the Tribunal but not all detention decisions (the Tribunal has power to determine bail pending an appeal but not issues relating to damages for wrongful detention). It would run contrary to the will of Parliament for the High Court to allow detention to act as a Trojan horse to bring impugned removal decisions within the citadel of judicial review.

The Claimant's argument

10. The Claimant's case as set out in his skeleton is that even though a s10 decision is not a curtailment carrying an in country appeal the decision of the Defendant to bring the Claimant's leave to an end by way of s10, and so providing the Claimant with only a out of country appeal, was unlawful and irrational in the circumstances of this case.
11. The Claimant relies on two arguments in support of his case:

i) That the Defendant has failed to establish the precedent fact that the Claimant had sought to obtain leave by way his Tier 1 application; and

ii) There are special or exceptional factors here in the circumstances of this case which would make the decision of the Defendant to use the s10 procedure unlawful.

The precedent fact argument

12. As to the first of those two arguments the Claimant argues that the Defendant could only determine an application for leave under s10 if there was such an application. As the Claimant puts it at paragraph 20 of his skeleton, if there is no application before the Defendant at the material time then the Defendant has no power under s10 to remove the Claimant from the UK.
13. The Claimant goes on to argue (at paragraph 23 of his skeleton) that it is the Defendant's own guidance to decisionmakers that where a clear and unambiguous letter is sent to the Defendant asking that an application be not considered then it is to be treated as withdrawn. Thus the Claimant argues it was not open to the Defendant to go on to consider the Tier 1 application once the Claimant had written withdrawing his claim.
14. Before me, in the face of the guidance and the Defendant's written submissions about it, the Claimant withdrew from the proposition that the Defendant was required by its own guidance to treat the application as withdrawn. Rather the Claimant sought to argue that it was for this court to determine whether or not there was an application in place once the Claimant had sought to withdraw it by way of precedent fact. The Claimant's submission was that this court should find that once the applicant had sought to withdraw his application then the application was withdrawn. Hence by August when the SSHD purported to determine the application there was no application to determine it was submitted.
15. The Claimant accepted that he could not point to any authority to support that argument.

Special or exceptional factors

16. Turning to the second leg of the Claimant's argument it was submitted that this Court has jurisdiction to review the lawfulness of decisions taken under s10 where there are special or exceptional factors.
17. The Claimant argues that that jurisdiction is engaged here because, it is argued, that the Claimant did not have an opportunity to respond to the allegation of deception. The Claimant asserts that to deny an applicant an in country appeal by use of the s10 route against an allegation of fraud where the Claimant has no opportunity to make representations amounts to a serious abuse of power. That is particularly so, the Claimant says, where the Defendant could have brought the Claimant's leave to end by way of curtailment which would have carried with it an in country appeal. The Claimant relies on (R(Anwar and Adjo)-v-SSHD [2010] EWCA Civ 1275 para 24).
18. By way of amplification in submissions the Claimant argued that an out of county appeal was a less than adequate remedy in these circumstances any such appeal would turn on the credibility of the Claimant. It would be more difficult to satisfy a Tribunal on appeal in circumstances where the Claimant could not appear in front of it.
19. Finally, on this head the Claimant argues that his Article 6 rights are infringed on the same basis.

The Defendant's response

That the claim now has no justiciable issue

20. The Defendant's first point is that the case now advanced by the Claimant is not that in respect of which Mr Justice Foskett granted permission. Permission was granted, it is agreed at the Bar, in respect of the argument that the SSHD should have permitted the Claimant an in country appeal. The Claimant now accepts that that ground is not arguable.
21. The Defendant submits that a number of consequences flow from this:

i) The Claimant has abandoned the case for which he was given permission in his own skeleton at paragraphs 8 and 9 and so it is argued there is now no justiciable issue between the parties

ii) The Claimant does not have permission to bring a claim on the case he now advances

iii) Part of the case the Claimant now seeks to advance was effectively run before Mr Justice Foskett. He refused permission on that ground. The proper challenge to that refusal would have been to appeal that decision

iv) The Claimant, although represented, has failed to serve a Notice to Argue Different Grounds as required by PD 54A paragraph 11.1 and there is no evidence to explain why the PD has not been complied with

22. The primary position of the Defendant is that this claim should be dismissed on this basis.

The Defendant's response to the "precedent fact" argument

23. Turning to the merits of the Claimant's case the Defendant firstly submits this argument was raised at the permission stage before Mr Justice Foskett and rejected. It is therefore res judicata and the proper response of the Claimant it is submitted would be to appeal that decision rather than raise it here.
24. Going to the merits of the point the Defendant submits that the relevant guidance permits the decisionmaker to agree to a request to withdraw an application or not. It is submitted that it is for the decisionmaker to decide whether or not to allow the claim to be withdrawn.
25. Thus the Defendant argues the SSHD was perfectly entitled to decide not to treat the application as withdrawn and to go on to determine it.
26. The Defendant reinforces that argument with the submission that given that it was accepted that the application had been supported by forged documents there were good public policy reasons to go on to determine the application.
27. As to the argument as to whether the circumstances amount to precedent fact the Defendant argues they do not, but that even if they did the outcome would be the same, as there was here an application which the SSHD could determine.

The response to the special or exceptional factors argument

28. Turning to the issue of whether this court should intervene here in respect of the s10 decision the Defendant draws the court's attention to the line of authority in R(Lim and Siew)-v-SSHD [2007] EWCA Civ 773 and RK (Nepal)-v-SSHD [2009] EWCA Civ 359 summarised in the Judgment of Mr Justice Green in R(Azmat Khan)-v-SSHD [2014] EWHC 2494 QBD.
29. The Defendant refers in her Detailed Grounds to paragraph 36 of RK(Nepal) which provides that the two routes of removal open to the SSHD, curtailment and s10 are not to be blurred, and that if the SSHD decides to use the s10 procedure then that can only be challenged in the very limited circumstances set out in Lim. If the case cannot be brought within those limited circumstances it is submitted then the Claimant is limited to an out of country appeal.
30. Here the Defenedant submits the case advanced by the Claimant is not within that category of cases established by that line of authority, not least because it is common ground between the parties that the application, for whatever reason, was supported by forged douments.
31. The Claimant had put before the court the case of Anwar in support of the proposition that this allegation of deception could amount to a special or exceptional factor. The Defendant sought to distinguish this case from Anwar on its facts. In Anwar at paragraph 24 the court was dealing with Ms Pengeyo. She had been in the UK lawfully as a student. Her educational establishment was one of those removed from the Register as it was found to be issuing bogus qualifications and no real training. In that case there was no issue that Ms Pengeyo had acted honestly throughout. She is referred to in paragraph 24 as an innocent person. Yet she was to be removed on the ground that she had obtained leave to remain by deception. Those facts are entirely different from those here, it was submitted, where there could be no issue that forged documents had been submitted with the application and the Claimant's credibility is in issue.
32. As to the Claimant's Article 6 claim it is submitted that an out of country appeal has been provided for by Parliament. There is nothing in this case which would render such an appeal a breach of the Claimant's Article 6 rights.

Discussion and conclusions

Procedural irregularity

33. There is much in the Defendant's submission that given the various litigation failures of the Claimant, and the Claimant's position on the only issue for which permission had been given, I should simply dismiss the claim. Had it been necessary to adjourn this matter for the issues to be litigated on their merits that submission would have been difficult to resist. However, it was possible to litigate these issues on their merits in this hearing, and well within the time provided, and so on balance I decided to proceed so that the matter could be determined on its merits.
34. All that made for a relatively untidy hearing. I permitted each party to respond as necessary and at one point rose to give the Claimant's counsel 5 minutes to satisfy himself that he had made all the points he could in favour of his lay client. At the conclusion of the hearing neither party suggested that it had not been a fair hearing.

Precedent fact

35. The Defendant is right it seems to me that as Mr Justice Foskett refused permission on this point then this matter is res judicata and the proper response from the Claimant would be to take the matter to the Court of Appeal.
36. If I am wrong about that and the matter is before me then I reject the Claimant's argument. As to whether this issue does amount to precedent fact the Claimant could put before me no authority to suggest that the issue of whether there was an application at all is a precedent fact issue. In my judgment, in these circumstances, it is not. Rather, here, it is a simple factual issue quite different to the types of fundamental issues which have been identified by the courts in the past as precedent fact.
37. If am wrong about that also, and it is open to this court to consider the matter as precedent fact, I reject the Claimant's case on the point. In my judgment there are good public policy grounds for putting the final decision as to whether an application can be withdrawn in the hands of the SSHD. If it were otherwise applicants could lodge with applications material that amounted to seeking leave by deception knowing that if the SSHD became suspicious they could unilaterally withdraw the application before determination and thus wholly avoid the serious consequences of seeking to obtain leave by deception.
38. Thus I reject the Claimant's precedent fact submissions.

Special or exceptional factors

39. I turn now to the Claimant's arguments as to special or exceptional factors. The basic principles here are set out in Khan by Mr Justice Green and I respectfully adopt that analysis. The only authority put before me to assist me directly as to the facts on this point was Anwar. I have to say I do not find that authority particularly helpful here. Each case turns on its facts in this context. In Anwar the relevant Claimant was already established to be a wholly innocent person to be removed due to someone else's deception which she did not know of. Here it is yet to be established whether the Claimant was part of the deception or not. The circumstances are thus quite different.
40. An out of country appeal may not be the easiest process for an applicant who seeks to appeal, but it is the process that Parliament has provided. This court has decided that unless the case falls within a very narrow band of circumstances it will not interfere. This case, in my judgment, does not begin to fall within that narrow band. In my judgment the issues here raise just the sort of assessment of evidence and credibility that Tribunals deal with day in day out in out of country appeals.
41. Equally, it was entirely open to the SSHD to take the s10 route (with an out of country appeal) rather than the curtailment route (which would have carried an in country appeal). There is no serous abuse of power here on these facts for the reasons described above.
42. I thus reject the Claimant's case in respect of special or exceptional factors
43. It follows from that proposition that there is no breach of the Claimant's Article 6 rights here.

Decision

44. I dismiss the claim for the reasons described above.

Costs

45. The Claimant shall pay the Defendant's costs to be assessed if not agreed.

Arrangements as to the assessment of costs

46. It was agreed before me that if I made an order for costs either way I should provide that the costs of the successful party should be assessed if not agreed. In respect of any assessment both sides have permission to put their representations as to costs to the costs judge in writing, the Defendant first and the Claimant 14 days thereafter. Any assessment shall take place on paper to avoid the expenditure of yet further costs on attendance before the costs judge.