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
		10 October 2016

SIR STEPHEN SILBER:

Introduction

1. Foreign Nationals seeking leave to remain in the United Kingdom as Tier 4 (General) Students have to prove an adequate aptitude in speaking and writing in English to acquire the requisite number of points so as to be granted leave to remain. They achieve this by obtaining the Test of English for International Communication ("TOEIC") certification. The Claimant, who is a national of Bangladesh, obtained this certification and thereby obtained leave to remain, but the Secretary of State for the Home Department ("the Secretary of State") was subsequently informed by the Educational Testing Service ("ETS") that an anomaly with the Claimant's speaking test indicated the use by the Claimant of a proxy and his test was therefore deemed "invalid". In consequence, the Secretary of State has exercised her powers to take steps to order the Claimant's removal.
2. The Claimant challenges the decision of the Secretary of State dated 12 February 2015 to give directions under section 10 (1) (b) of the Immigration and Asylum Act 1999^[1] ("the 1999 Act") for his removal from the United Kingdom. He also seeks to challenge the allegation of deception brought against him as the issued IS.151A alleges that the Claimant is "specifically considered a person who has sought leave to remain in the United Kingdom by deception following information provided to us by the Educational Testing Service (ETS), that an anomaly with you (sic) speaking test indicated the presence of a proxy test taker".
3. Permission to pursue this application was granted by HH Judge Cooke QC after this application had been transferred from the Upper Tribunal.
4. In summary, the Secretary of State contends that this judicial review claim should be dismissed as it cannot succeed because there is an adequate alternative statutory remedy to redress his complaints available to the Claimant in the form of an out-of-country appeal which is prescribed in section 92 of the 1999 Act, which is set out in the Appendix to this judgment.
5. Mr Michael Biggs, counsel for the Claimant, contends that the time for considering whether there is an adequate alternative remedy available to the Claimant was at the permission stage, but permission was nevertheless granted even though the Secretary of State had contended in her Summary Grounds of Defence the alternative remedy point. So he submits that the alternative argument issue was dismissed when permission was granted and so the judicial review claim should proceed without any need to consider any further the adequate alternative remedy point. Ms Catherine Rowlands, counsel for the Secretary of State, submits that it is still open for the Court at the subsequent substantive hearing to dismiss the judicial review application on the basis that there is an alternative remedy available to the Claimant and that judicial review is a remedy of the last resort. I will return to consider this issue in paragraph 19 below.
6. Mr. Biggs contends that even if that submission is correct, there are still "special or exceptional factors" which mean that such an appeal is not an adequate alternative remedy available to him with the consequence that the judicial review application should proceed. This is strongly disputed by Ms Rowlands.

The Background to this Claim

7. The Claimant entered the United Kingdom with leave to enter and remain as a Tier 4 (General) Student on 2 September 2009 in order to study. He duly achieved an Edexcell level 5 BTEC diploma. On 27 December 2012, he applied for leave to remain as a Tier 4 (General) Student and in support of his application, he submitted the TOEIC certification following a test said to have been sat by the Claimant on 19 June 2012 in order to show that he met the English language requirement imposed by the Immigration Rules.
8. The significance of this certification was that in order to obtain leave to remain as a Tier 4 (General) Student, an applicant had to prove an adequate aptitude in speaking and writing in English to acquire the requisite number of points. Because he had obtained the TOEIC certification, the Claimant's application was successful and so on 11 March 2013, the Claimant was granted leave to remain as a Tier 4 (General) Student until 28 May 2014. In April 2014, the Claimant applied for further leave to remain in order to study for the degree of a Master of Business Administration at the University of Sunderland and he was given further leave to remain until 28 August 2015.
9. During the currency of that leave to remain, the Claimant was served with the letter dated 12 February 2015 which is the subject of the present claim and which explained that the Secretary of State had decided to remove the Claimant from the United Kingdom on the grounds that the Claimant had cheated on his TOEIC. An 1S151A Part 1 form was sent to the Claimant giving formal notice of the removal decision. It is this decision and this notice, which are the subject matter of the present application.
10. The inquiry leading to the decision that the Claimant had cheated followed a BBC 1 Panorama documentary broadcast on 10 February 2014 and which disclosed a major problem with the administration of English language tests for the purpose of making applications for leave to remain by ETS. At ETS English language test centres, tests were undertaken by persons subject to immigration control in order 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.
11. In particular, oral English tests set by ETS taken via a computer link were sat not by the actual candidate, but were taken instead by 'proxy' test takers. In a written Parliamentary answer on 14 July 2014, Mr James Brokenshire M.P., a Home Office Minister, said that enquiry was ongoing, but that the 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.
12. Following the Panorama broadcast, ETS had undertaken a review of the validity of test scores awarded by it at various test centres in the United Kingdom. The Secretary of State's evidence 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.
13. On 20 June 2014, ETS informed the Defendant that a number of test scores had been cancelled as "invalid". A witness statement from Ms Susan Amissah, who is a litigation case worker employed by the Home Office, produced the ETS report which showed that the Claimant's score was "invalid" and therefore cancelled. The significance of the conclusion that the score was "invalid" is that it shows a higher degree of certainty than the conclusion sometimes found for invoking section 10, which was that a candidate's TOEIC was only "questionable".

The Issues

14. To understand the nature of the dispute, it is necessary to bear in mind in relation to the Claimant's desire to use judicial review to challenge the Secretary of State's decisions first, that deception has been used to obtain leave to remain and second, to remove that person that:

i) Judicial review "is always a remedy of last resort" per Baroness Hale in R (Cart) v Upper Tribunal [2012] 1 AC 663 at paragraph 19 (emphasis added) ;

ii) It is not the practice of the court to use the power of judicial review "where a satisfactory alternative remedy has been provided by Parliament" per Lord Phillips in R (Cart) v Upper Tribunal (supra) at paragraph 71;

iii) Section 92 of the Nationality, Immigration and Asylum Act 2002 provides that an out-of-country appeal is the appropriate remedy for those removed under section 10 of the 1999 Act;

iv) "...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 appeal is regarded by Parliament as an adequate safeguard for those who are removed under s10 of the 1999 Act" (per Aikens LJ in RK(Nepal) v Secretary of State [2009] EWCA Civ 359 [33] (emphasis added) and quoted with approval by Beatson LJ giving the only reasoned judgment of the Court of Appeal in R(on the application of Mehmood and Ali) v Secretary of State (supra) at paragraph 51 and see also his comments at paragraph 49);

v) "The existence of disputes of fact are rarely likely to constitute 'special or exceptional factors'" (R(on the application of Mehmood and Ali) v Secretary of State (supra) at paragraph 52 (emphasis added));

vi) "Matters of procedural fairness arise in many cases can, be considered in the appellate process, and are rarely likely to constitute 'special or exceptional factors'" R(on the application of Mehmood and Ali) v Secretary of State (supra) at paragraph 53 (emphasis added) approving Coulson J in R(Zahid) v Secretary of State for Home Department [2013] EWHC 4290(Admin) at paragraph 16.; and that

vii) "The appeal structure [which is in Section 92 of the 2002 Act] specifically envisaged that challenges to the factual accuracy of evidence takes place through an out-of country appeal" R (on the application of Mehmood and Ali) v Secretary of State (supra) at paragraph 70).

15. The first dispute is whether the Secretary of State can at the present substantive hearing stage contend that there are suitable alternative remedies open to the Claimant even though permission has been granted ("The Substantive Hearing Issue" which I will consider in paragraphs 19ff). If the Secretary of State succeeds on this issue, the main issue between the parties then becomes whether there are any "special or exceptional factors" in this case which show that an out-of-country appeal is not a suitable alternative remedy to an order for judicial review for this Claimant with the consequence that this judicial review application should not be dismissed. The Claimant contends that there are factors which when considered individually or cumulatively show that such an appeal is not a suitable alternative remedy.
16. Those "special or exceptional factors" relied on by the Claimant as showing either individually or cumulatively that an out-of-country appeal is not a suitable alternative remedy are that:

(a) the allegation that the Claimant cheated was an issue of precedent fact, which this Court on this judicial review application should consider for itself ("The Precedent Fact Factor" which I will consider in paragraphs 27ff);

(b) the Claimant's rebuttal evidence on cheating and the decision of the Upper Tribunal in SM and Ihsan Qadir v Secretary of State [2016] UKUT 229 (IAC) together or individually show that the Defendant has no real prospect of success in any out-of-country appeal ("The Rebuttal Evidence/SM Factor" which I will consider in paragraphs 35ff ); and that

(c) the Defendant failed to comply with its duty to act fairly by not giving the Claimant notice of her allegations and a reasonable opportunity to respond to them before a section 10 decision was taken ("The Absence of Notice Factor" which I will consider in paragraphs 47ff).

17. The case for the Secretary of State is that none of these factors whether considered individually or cumulatively constitute "special or exceptional factors" so as to show that an out-of-country appeal is not an adequate alternative remedy.
18. I will now consider the factors in turn after resolving the Substantive Hearing Issue.

The Substantive Hearing Issue

19. Mr Biggs contends in the words of his skeleton argument for the substantive hearing that it "is not open to the defendant, at this stage, to argue that the Court should decline to entertain this claim on the basis that the claimant has an alternatively remedy by way of an out-of-country right of appeal, as the time for considering this issue is the permission stage, and permission was granted even though the defendant had argued the alternative remedy point, and was granted in light of key authorities on it". He also submitted that the alternative remedy point should not usually be a reason for dismissing a claim in the Court's discretion at the substantive hearing if it had been raised and decided at the permission stage "and that the alternative remedy at the substantive stage should be treated as relevant to remedy rather than to the prior question as to whether the merits of the claim should be considered".
20. Mr. Biggs relies on the statement of Blake J in Mohammed Azmool Miah v Secretary of State [2016] UKUT 00023 (IAC) at paragraph 26 that:

"I would add that the time to take a point about an alternative remedy is at the permission stage when costs will be modest and a full examination of the merits is not required. Once the Court has granted permission, then it would not be a sound exercise of discretion to refuse to entertain the application on its merits at the substantive hearing on the basis that there was an alternative to judicial review. I appreciate that in a number of authorities permission had been granted but that was on the basis that the alternative remedy point was specifically reserved to be argued at the full hearing".

21. Ms Rowlands disagrees and contends that the mere fact that permission has been granted in the face of a contention in the Summary Grounds of Defence that there is an alternative remedy available to judicial review should not be, in itself or together with any other factor, a total bar or any bar to raising that issue at the substantive hearing. That must be the case even though the alternative remedy issue was not reserved when permission was granted. Indeed her case is that the fact that permission had been granted after the alternative remedy issue had been raised was irrelevant to the decision made at the substantive hearing stage.
22. Six points must be made about the comments of Blake J, which I set out in paragraph 20. First, his comments were dicta in that judicial review application and they were not relevant to, or decisive of, the ultimate decision to refuse the application; that is because the contention that there was an alternative remedy open to the claimant was only taken when the Secretary of State raised the issue in her skeleton argument for the substantive hearing. So it was not raised before permission was granted
23. Second, Blake J did not refer to any authority to support his view. Third, there is no reason to believe that this point had been the subject of submissions in that case. Fourth, no case has been relied on by Mr. Biggs in which a claimant was precluded at a substantive hearing from pursuing an alternative remedy point because it had been raised before permission had been granted and it had not been reserved for argument at the substantive hearing.
24. Fifth, the approach of Blake J would undermine the fundamental principle set out in Cart (supra) and which I have explained in paragraph 14 above that judicial review "is always a remedy of last resort"^[2] and that it is not the practice of the court to use the power of judicial review "where a satisfactory alternative remedy has been provided by Parliament"^[3]. Nothing has been submitted to show that there is an exception to that principle which is relevant to this dispute and such an exception would have disturbing consequences. It would mean that if a judge through an oversight granted permission in a judicial review application, notwithstanding that there was an unarguable claim that there was a well-established adequate alternative remedy available to the claimant - such as by an appeal to the Crown Court from a decision of magistrates- then on Mr. Biggs' case, the application for judicial review could not be refused at the substantive hearing on the adequate alternative remedy grounds.
25. Finally, if Mr Biggs' submission is correct and the consequence of permission having been granted was that a defendant could not pursue an alternative remedy which had been raised before permission had been granted, it might have some further disturbing consequences in that the defendant could not challenge that decision. CPR Part 54.13 provides that "neither the defendant nor any person served with the claim form may apply to set aside an order giving permission to proceed". It would seem that this provision might mean that there might be no remedy available to a defendant who wishes to contend in answer to a claim for judicial review that there is an alternative remedy available to the claimant so that the judicial review claim should be dismissed at the substantive hearing, and then if Mr. Biggs is right, the defendant might well be unable not merely to raise this point at the substantive hearing or to set aside the order granting permission if it was made in face of a contention that permission should be refused because there was an alternative remedy available to the claimant. As I did not hear full arguments on this issue, I do not give a definite view.
26. For these reasons, I respectfully disagree with Blake J's comments insofar as they mean that it is not possible for the Secretary of State to rely ion the adequate alternative remedy ground. Indeed the mere fact that permission has been granted in the face of a contention in the Summary Grounds of Defence that there is an alternative remedy available to judicial review should not be, in itself or together with any other factor, a total bar or any bar to raising that issue at the substantive hearing. I am fortified in reaching that decision by the fact that I have been involved in a number of substantive judicial review hearings in which the issue of whether there was an alternative remedy was available to the claimant was raised and resolved without any suggestion that it could not be pursued because permission had been granted in the face of an assertion by the defendant that there was an alternative remedy available to the claimant.

The Precedent Fact Factor

27. Mr. Biggs contends that a decision to remove the Claimant pursuant to s.10 of the 1999 Act on the basis of an allegation that deception falling within s10(1) (b) had been used was a matter of precedent fact, which was for a judicial review tribunal to determine for itself. He relies on the statement of Richards LJ in R(Giri) v Secretary of State [2015] EWCA Civ 784 at paragraph 20 that:

"The position would be different if we were concerned not with the exercise of the power under section 3 of the 1971 Act to grant leave to remain but with a decision to remove a person under section 10 of the 1999 Act on the ground that he or she had used deception in seeking leave to remain ... In that event, as a matter of statutory construction, the very existence of the power to remove would depend on deception having been used; and in judicial review proceedings challenging the decision to remove, the question whether deception had been used would be a precedent fact for determination by the court in accordance with [Khawaja v Secretary of State for the Home Department [1984] AC 74]".

28. The significance and status of this statement has been questioned and in R(Ahmed) v Secretary of State [2016] EWCA Civ 303, Laws LJ explained at paragraph 26 that "those observations were of course obiter", while Beatson and King LJJ, who had both not only sat in that case but had also had sat with Richards LJ in Giri, agreed that Richards LJ's comments were obiter. Indeed, I respectfully agree and I do not believe that Mr. Biggs can derive any benefit from those comments in Giri especially in the light of other authorities to which I now turn.
29. Those decisions show that even if there was a need to resolve an issue of precedent fact, then that could be, and indeed should be, resolved by the means of an out-of-country appeal. In R(Lim and Sew) v Secretary of State [2006] EWHC 3004 (Admin), Lloyd Jones J (as he then was) held that the legality of removal directions depended on the existence of a precedent fact which was whether there had been a breach of that claimant's conditions of leave to remain and that this issue was capable of being determined in judicial review proceedings. He held that this issue should be resolved in the judicial review proceedings because, as the Judge explained in paragraph 50 of his judgment, the alternative remedy of an out of country appeal did "not provide fair, adequate or proportionate protection against the risk that the immigration officer has acted without jurisdiction".
30. The Court of Appeal allowed the appeal rejecting this approach which is similar to and supportive of the Claimant's case on this application. Sedley LJ, who gave the only reasoned judgment of the Court, explained that the issue of whether there had been an actual breach of the claimant's conditions of entry "was precisely the kind of issue for which the legislation had for better or for worse, prescribed an out-of-country appeal"([2007] EWCA Civ 773 at paragraph 27). Indeed, Sedley LJ had explained that "were it otherwise, the courts would be emptying Parliament's prescribed procedure of content". This showed that issues of precedent facts should normally be dealt with not in judicial review proceedings, but rather in the out-of-country appeal procedure as prescribed by Parliament.
31. This strongly supports Ms Rowlands' contention that the allegation that the Claimant cheated was not a matter of precedent fact which this Court on this judicial review application should consider for itself, but that it should be resolved in the out-of-country appeal procedure as prescribed by Parliament. Her contentions are supported by two other matters.
32. First, when giving the only reasoned judgment of the Court of Appeal in R(Mehmood and Ali) v Secretary of State (supra) at paragraph 52, Beatson LJ's stated that "the existence of disputes of fact are rarely likely to constitute 'special or exceptional factors'" (emphasis added) so as to be dealt with in the judicial review proceedings, rather than in an out-of-country appeal. He proceeded to conclude in the same paragraph that "the default position for disputes as to whether there has been a breach of the conditions of licence or deception has been used in connection with an application for leave will, absent such special or exceptional factors, be an out-of- country appeal". At paragraph 70, Beatson LJ added that The appeal structure [which is in Section 92 of the 2002 Act] specifically envisaged that challenges to the factual accuracy of evidence takes place through an out-of country appeal"
33. Second, the reason for this approach is as McCloskey J, President of the Upper Tribunal, explained when giving the judgment of the Upper Tribunal in SM and Qadir when dealing with two appeals by claimants challenging decisions that their TOEICs had been procured by dishonesty. Having described the typical factual disputes arising on such appeals, the President observed at paragraph 102 that "the hearing of these appeals has demonstrated beyond peradventure that judicial review is an entirely unsatisfactory litigation vehicle for determination of disputes of this kind". Similar views had been explained by him previously when giving the judgment of the Upper Tribunal in R(Gazi) v Secretary of State [2015] UKUT 439 (IAC) at paragraph 36 when he observed that:

" In my judgment the substance and contours of the Applicant's improper purpose case confirm that an appeal to the FtT, pursued out of country, is a demonstrably superior mechanism for this species of challenge than an application for judicial review which, as has been repeatedly observed, invokes a judicial supervisory jurisdiction and is not an appellate process"

34. I conclude that the issue of whether the Appellant cheated as alleged could be and should be resolved without difficulty in an out-of-country appeal and it is no different from many issues that are resolved very regularly in that way. To reach a different conclusion would be undermining the regime set up by Parliament. Therefore, I cannot accept Mr. Biggs' further submission that it would be an abdication of the Court's constitutional responsibility to police the rule of law to allow the Secretary of State to remove the Claimant in a case where the evidence on balance showed that the Secretary of State had no power to remove him. This submission ignores the fact that it is impossible to conclude that the Claimant would inevitably or would probably succeed in the present case , as I will explain in paragraph 45 below. In addition, the Court's constitutional responsibility is to comply with Parliament's intention which is that challenges to the Secretary of State's decision to remove the Claimant should be resolved in an out-of country appeal and not in the present judicial review proceedings.

The Rebuttal Evidence/SM Factor

35. Mr. Biggs contends that the Claimant's rebuttal evidence on the cheating allegation and the decision of the Upper Tribunal in the SM and Qadir case, whether considered individually or cumulatively, show that "the [Secretary of State's] case is hopeless on the evidence available to the Court when considered in the light of SM and Qadir supra, the [Secretary of State] has no real prospect of success in resisting an out-of-country appeal". It is said by Mr. Biggs that this shows that forcibly removing the Claimant would "serve no rational purpose and would be oppressive". Ms Rowlands disputes first, that the Secretary of State's case is hopeless and second, in any event that even if that is correct, this would be a ground for refusing a stay.
36. In my view, as a matter of law, even if the Secretary of State had no real prospects of success, that would not be a ground for by-passing the statutory remedy of an out-of-country appeal. There is no basis for contending that this remedy is not available if the Secretary of State has no real prospect of success or that a party is excused from invoking he statutory remedy of an out-of-country appeal if he or she has no real prospects of success. Indeed, in the Mehmood and Ali case, it was contended in respect of Mr. Ali that the Secretary of State had no "worthwhile evidence" to satisfy himself that this was an appropriate case to make a removal direction. This was rejected by the Court of Appeal which explained that "the appeal procedure specifically envisaged that challenges to the factual accuracy of evidence takes place through an out-of-country appeal" (emphasis added). This reasoning shows why this ground has to be rejected.
37. In case I am wrong, I will consider whether the Secretary of State has no real prospects of success and that entails analysing the Claimant's evidence and the effect of the decisions in SM and Qadir supra.
38. The case for the Secretary of State is contained in the generic evidence of Mr. Peter Millington and Ms Rebecca Collinge, whose evidence had been relied on by her in previous challenges to decisions based on the use of proxies, as well as the witness statement of Ms Amisah which, as I have explained, produced the ETS report and which showed that the Claimant's score was "invalid" and therefore cancelled.
39. The Claimant made a witness statement during the present judicial review proceedings in which he explained first, that "I further strongly confirm that I sat the TOEIC exam without any assistance or deception", and second, that the allegation that he cheated is "totally unfounded and misconceived". The Claimant stated that he wrote to ETS asking for an explanation in relation to the allegation that he had not taken the TOEIC exam, but he received a generic response. His case is that the allegation of cheating made against him was "completely baseless and without any merit" and that if he "had to leave the United Kingdom with such a serious allegation against me it would have definite adverse results on my life".
40. He explained first, that during the period from 2013 to 2014, he successfully completed Honours in Business Administration (BA) from Anglia Ruskin University; second, that in April 2015, he successfully completed the Master in Business Administration with Merit from the University of Sunderland; and third, that he obtained Edexcel BTEC level 5 HND diploma with high level of English proficiency.
41. The Claimant's case is that these qualifications constitute "clear evidence" that he had an "effective command of communicating in English whether it is in written or oral form" and his educational achievements "far exceed the requirements that [the Secretary of State] has set to demonstrate ability of English proficiency". He explains that he intends to pursue further education like obtaining a PhD in the United Kingdom "to fulfil my dream", but that the allegation of deception against him has "severe consequences on me" as any further application to study in the United Kingdom "will automatically be refused, for the same reason under which the current application was refused".
42. The evidence that the Claimant took the TOEIC examination would have to be the subject of scrutiny during the present challenge. The Claimant could expect to be cross-examined at any hearing and it is noteworthy that SM gave evidence for a period "exceeding one day". The Upper Tribunal considered with great care the evidence of both SM and of Mr. Qadir and its deliberations occupied a number of closely typed pages. The conclusions which it reached were favourable to those Appellants, but crucially they were fact-sensitive. Significantly, they do not show or indicate that the Claimant would also succeed as the evidence would be different in his out-of country appeal
43. Indeed, Mr. Biggs correctly accepted that the evidence in the present case is at present different from that in SM and Qadir supra for two main reasons. First, the Claimant's evidence in the present case did not include the crucial expert evidence relied on by the Appellants in SM and Qadir supra and which came from Dr. Harrison, an expert in voice recognition, and Mr. Richard Watson, the BBC investigative journalist who was involved in the production of the BBC "Panorama" programme. The absence of Dr. Harrison's evidence is of great importance because in the SM case, the President of the Upper Tribunal explained its crucial effect on the outcome of the appeal when he said at paragraph 70 that "By the time when Dr. Harrison's evidence was completed, the Secretary of State's evidence had paled and wilted".
44. Second, the evidence of the Claimant will relate to his knowledge of English and other matters which will after cross-examination be different from that which was adduced by SM and by Mr. Qadir and which was held by the Upper Tribunal to be "plausible and truthful".
45. For those reasons, it is not possible to conclude that just because the Appellants were successful in the Upper Tribunal in that fact-sensitive case and that the Claimant has been successful in some examinations in this country that the Claimant would inevitably or almost certainly succeed in the present case.
46. At the present time, I cannot say that the Claimant's witness statement is so cogent that this statement, whether considered by itself or with the decision in SM and Qadir supra or any other factor, would lead to the appeal of the Appellant succeeding especially as I do not know how the Claimant will stand up to cross-examination or how the Secretary of State would counter his evidence. As was made clear in the SM case, the cross-examination of the Claimant was of critical importance and so it follows that assertions in a witness statement will not be regarded as decisive and so it is almost impossible to say at this stage that the Claimant would succeed in challenging the decision. So I reject the Claimant's case on this issue, as not only do I not accept that the Claimant's case is hopeless in the light of his witness statement and the decision in SM and Qadir, but also even if it was hopeless , that could not constitute a "special or exceptional factor" so as to enable this Court not to reject this application for judicial review for the reasons set out in paragraph 36 above.

The Absence of Notice Factor

47. The Claimant's case is that the Defendant failed to comply with its duty to act fairly by not giving the Claimant notice of her allegations and a reasonable opportunity to respond to them before a section10 decision was taken and that this constitutes a "special or exceptional factor" which means that an out-of- country appeal is not a suitable alternative remedy for the Claimant.
48. Mr Biggs contends that the Secretary of State had a duty to act fairly when considering whether it was appropriate to invoke section 10 of the 1999 Act and to seek to remove the Claimant. He submits that she failed to comply with that duty by failing to give the Claimant notice of her allegations and a reasonable opportunity to respond before a decision was taken to serve a section10 decision. He relies on the classic statement of Lord Mustill in R v Home Secretary , ex parte Doody [1994] 1 AC 530 at page 560.
49. His argument is that the Secretary of State should have provided the Claimant with the evidence on which she relied and the voice recordings from ETS in the light of the approach advocated in Kanda v Government of Malaysia [1962] AC 322 at page 377. In support of this submission, Mr Biggs relies on the facts first, that the allegation against the Claimant is very serious being an allegation of fraud, and second, that the consequences of the notice are very serious for the Claimant as they entailed liability to forcible removal, detention and the possibility of an entry clearance ban. He also contends that a further reason why the Claimant should have been served with this material is that a person removed from the UK without provision of the evidence against them in advance of the hearing may face very substantial difficulties if and when the evidence is served on him later.
50. Ms Rowlands disagrees, and she contends that this is not a "special or exceptional factor" and that there is clear authority to this effect. She points out that Mr. Biggs' submission is very similar if not identical to one which was made on behalf of Mr Ali in the Mehmood and Ali case (supra), which was that the removal notice was taken without prior notice and that Mr Ali had no opportunity to make representations.
51. The Court of Appeal did not consider that this constituted a ground for holding that the out-of-country appeal was not a suitable alternative remedy. As I have explained, Beatson LJ, giving the only judgment of the Court of Appeal explained in Mehmood and Ali at paragraph 53 that "matters of procedural fairness arises in many cases, can be considered in the appellate process, and are rarely likely to constitute 'special or exceptional factors'" approving Coulson J in R(Zahid) v Secretary of State for Home Department [2013] EWHC 4290 (Admin) at paragraph 16.
52. Beatson LJ proceeded to observe in Mehmood and Ali at paragraph 72 that:

"Mr Ali did not receive prior notice of the removal notice. This did not preclude him from responding to the notice in the way Mr Mehmood did, by making representations, or by providing further evidence to the Secretary of State. Although other parts of the judgment of the Deputy Judge in R (Thapa) v Secretary of State for the Home Department [2014] EWHC 659 (Admin) have been disapproved, I respectfully agree with her statement at [70] that "at least the gist of the evidence upon which a removal decision under section 10 IAA 1999 is taken must be communicated to the subject of that decision at the time the decision itself is communicated".

53. That reflects the classic statement of Lord Mustill in R v Secretary of State for the Home Department, ex p. Doody [1994] 1AC 531 at 560, but the question and other matters of procedural fairness can be considered in the appellate process. They are unlikely to constitute a "special or exceptional factor," and were held not to have done so in Mr. Ali's case.
54. No reason has been put forward to suggest, let alone show, why this reasoning should not be applied in the present case. So I am unable to accept Mr. Biggs' submissions.

Conclusion

55. For those reasons, I would dismiss the claim.
Appendix- Statutory Provisions

A. Immigration Act 1971

Section 3(1) provides that a person who is not a British citizen shall not enter the United Kingdom "unless given leave to do so … [and] may be given leave to enter … or … leave to remain … either for a limited or for an indefinite period".

B. Immigration and Asylum Act1999

Section 10 provides insofar as is material that:

"(1) A 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; ??…

??(2) Directions may not be given under subsection (1)(a) if the person concerned has made an application for leave to remain in accordance with Regulations made under section 9. ?…

(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.^[4]"

C. Nationality, Immigration and Asylum Act 2002

?Section 82 (which is headed "Right of appeal: general?" provides insofar as is material that:

("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 http://www.legislation.gov.uk/ukpga/2002/41/section/82 - commentary-c1925056section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),?…?

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

Section 92 (which is headed "Appeal from within United Kingdom") provides insofar as is material that

"(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) and (j).?…"?

Note 1   The relevant provisions in section 10 and other relevant statutory provisions are set out in the Appendix to this judgment.    [Back]

Note 2   per Baroness Hale at paragraph 19    [Back]

Note 3   per Lord Phillips at paragraph 71    [Back]

Note 4   ?In many cases, including the present case, notice of the individual's liability to removal and of the decision to remove him or her (in forms IS151A and IS151A Part 2) are served simultaneously.    [Back]