Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 92

P550/15

OPINION OF LORD BANNATYNE

In the petition of

D A YEBOAH

Petitioner;

for

Judicial Review of decisions of the Secretary of State for the Home Department dated 3 August 2007, 16 August 2010, 15 June 2011, 1 May 2013 and 18 February 2015

Petitioner:  Party

Respondents:  MacIver;  Office of the Advocate General

5 July 2016

Introduction
[1]        In this judicial review the petitioner sought to reduce five decisions of the Secretary of State for the Home Department (“the respondent”).  I initially heard legal argument in this case with respect to two issues, firstly the respondent’s plea of mora, taciturnity and acquiescence and secondly the respondent’s plea directed to the relevancy of the petitioner’s averments. 

[2]        I issued an opinion D A Yeboah [2016] CSOH 1 with respect to the plea of mora.  In that opinion I held that I was unable to fully decide the issues regarding the plea of mora without hearing evidence on two issues which were raised in the course of the argument before me,

namely:  first whether the petitioner genuinely believed that he had the right to remain in the United Kingdom until August 2010 despite the terms of the respondents’ decision letter of 3 August 2007 (“the initial decision”) and secondly whether he genuinely believed that he was not in a position after August 2010 to raise judicial review proceedings until 2015. 

[3]        I accordingly heard evidence with respect to the above issues.  The only evidence led was on behalf of the respondent, who led the petitioner and no other witnesses. 

[4]        As regards the petitioner’s evidence, I have set out the relevant parts thereof in my discussion of the issues. 

[5]        Having regard to the above issues the primary question for the court, having heard the petitioner’s evidence, was this:  was the petitioner a credible and reliable witness?

[6]        I do not intend to set out the background to this matter which is fully set out in my earlier opinion. 

Submissions for the respondent
[7]        Mr McIver’s submissions can be summarised as follows:  the petitioner was not credible and reliable.  His position on the first issue was based on an absurd reading of the initial decision.  In the course of his evidence he had radically shifted his position regarding this first issue and had ended up adopting two wholly inconsistent positions.  With respect to the first issue the petitioner had been given legal advice to the effect that his understanding of the initial decision was wrong as a matter of law by more than one set of advisors.  Against that background he could not possibly have held the genuine belief for which he contended.  His position on the first issue was irrational and illogical.  With respect to the second issue no reason had been given why the petitioner had thought it necessary to pursue other remedies before raising the instant judicial review proceedings.  He had had representation from no less than three separate legal firms none of whom thought it appropriate to challenge the initial decision.  His position, in circumstances where he had the advice of three sets of solicitors, that he genuinely believed that he had to take other steps before raising the present judicial review proceedings was untenable. 

The reply on behalf of the petitioner
[8]        The petitioner’s response was a short one.  He asked the court to accept his evidence that he genuinely held the above two beliefs and he referred in support of that position to his whole evidence. 

Discussion
[9]        With no difficulty I find the petitioner to be incredible on both issues. 

[10]      Overall I found the petitioner to be a wholly unsatisfactory witness.  There were many aspects of his evidence which I found to be unsatisfactory. 

[11]      Generally his answers to questions were evasive.  He did not answer questions in a straight-forward manner.  Whenever he was pressed by counsel for the respondent to provide detail in his responses and in particular detail which could be checked he suffered convenient losses of memory.  Generally his evidence did not ring true.  The positions which he took in the course of his evidence I was satisfied were inherently unlikely.  The positions he took up in the course of his evidence, as submitted by Mr McIver, were irrational and illogical. 

[12]      The petitioner’s initial position in evidence was that he had formed a genuine belief from the terms of the initial decision that his leave to remain had not been restricted.  The terms of the initial decision are as follows: 

            “To:  Derick Amoako Yeboah Ghana 31 January 1976

On 31.08.06 you were granted leave to remain in the United Kingdom until 31.08.2010 as a work permit holder with NHS LOTHIAN UNIVERSITY HOSPITALS DIVISION. 

In view of the fact that we have received a completed Notification of Premature End of Employment form confirming that you ceased to be employed on 19.02.07, you have ceased to meet the requirements of the Immigration Rules under which your leave to remain in the United Kingdom was granted and, having considered the exercise of his discretion, the Secretary of State has therefore decided to restrict the limit on the duration of your leave to remain in the United Kingdom as a work permit holder so as to expire on 31.08.07

• You are not entitled to appeal this decision.  Section 82 of the Nationality Immigration and Asylum Act 2002 does not provide a right of appeal where an applicant still has leave to enter or remain in the United Kingdom and so is entitled to stay here.

   

• You still have leave to remain where your current conditions continue to apply until 31.08.07.  Please ensure that you understand the conditions of your stay.

You are not required to leave the United Kingdom as a result of this decision.” 

[13]      The petitioner in his evidence accepted that he read the above as restricting his leave to remain but relied on the final sentence in the initial decision as in some way negating the effect of what had been said earlier in the letter. 

[14]      I am unable to see how anyone could genuinely form this view when regard is had to the terms of the letter.  The meaning of the initial decision, namely:  “to restrict the limit on the duration of your leave to remain in the United Kingdom as a work permit holder so as to expire on 31.08.07” I believe would be absolutely clear to a lay person such as the petitioner.  There is simply no basis, having regard to the whole terms of the initial decision, for any confusion on the part of the petitioner regarding whether his leave to remain had been restricted to 31.08.07. 

[15]      I accept the submission made by Mr McIver that the petitioner’s reading of the initial decision is absurd. 

[16]      I am accordingly satisfied that the petitioner’s position that he genuinely believed that the initial decision did not restrict his leave to remain does not get off the ground. 

[17]      The petitioner went on in his evidence to say that following receipt of the initial decision he contacted the Home Office about his view regarding the proper interpretation of the initial decision.  His evidence on this was entirely unconvincing.  He said that he had phoned the Home Office but not identified himself.  He had not advised the Home Office of the whole content of the initial decision but rather had referred them merely to the last sentence.  If he were genuinely seeking to obtain the opinion of the Home Office as to the meaning of the initial decision, this would not be the approach that he would have taken.    

[18]      The petitioner thereafter said that he had consulted a lawyer in Glasgow about the meaning of the initial decision.  He could not give the name of this lawyer, although he believed that he had seen the lawyer at an Immigration Advice Centre.  When asked about what this lawyer had said regarding the initial decision his response was that he had gained the impression that the lawyer thought his interpretation of the initial decision was wrong.  The lawyer had said:  “Thought if I was a lawyer I would have seen it (the terms of the initial decision) differently.”

[19]      I am unable to see, how after that advice was tendered to him, the petitioner could genuinely continue to hold that there was no curtailment of his leave to remain. 

[20]      As at the time he was consulting this solicitor in Glasgow the petitioner stated in evidence that he also had lawyers acting for him in Edinburgh (Thompsons).  They were acting for him in relation to employment issues and in particular in relation to a case before the employment tribunal.  The petitioner was asked in the course of evidence if he had consulted them about the meaning of the initial decision and he said no.  When asked why he had not done so he answered that he did not know.  This evidence did not ring true.  It seems to me highly likely that given the matters with which Thompsons were dealing and given the terms of the initial decision that the petitioner would have spoken to them about this matter.  When asked more generally if he had discussed his immigration status with Thompsons he gave a very vague and unsatisfactory answer:  “If we did I cannot remember the content of the discussion.”

[21]      It did appear from a letter sent to him by Thompsons on 24 August 2007 that the issue of the position surrounding his work permit was a matter concerning his solicitors at that time.  This was said in the letter:  “As we discussed it may be difficult to proceed with a full hearing where the issue of the work permit is unclear.”

[22]      When asked what this was referring to the petitioner replied:  “I do not remember.”

[23]      He, however, did accept that Thompsons had concerns over his working in breach of his Visa conditions.  He was then referred to a letter of 29 August 2007 from Thompsons to him which said inter alia this: 

“Given the information you supplied regarding your work permit at our last meeting, I am most concerned that it would be counter-productive for you to proceed with the above Tribunal Hearing.  If you are working in breach of your conditions regarding your work permit and visa at the present time, you cannot enter a court of law, be put under oath and give false information regarding your current work situation.”

[24]      He was asked if he had shown the initial decision to Thompsons, his position was that he did not know.  He then was asked if Thompsons agreed with his interpretation of it and he answered:  “May have not.”  He then said:  “I took a different view from the two sets of solicitors.”

[25]      I believe it is clear that the petitioner in or about August/September 2007 was advised by no less than two sets of solicitors that his interpretation of the initial decision was incorrect.  Given that advice I cannot see how he could have continued to have genuinely believed in what he says was his interpretation of the initial decision. 

[26]      Moreover the petitioner was referred to 7/5 of process a statement of case dated 29 April 2009 which inter alia said:  “He (the petitioner) had already advised us that his personal visa had expired.”  The petitioner appeared to accept that he had said this. 

[27]      The petitioner was then asked to explain how he reconciled this statement with the position he was advancing in court. 

[28]      So far as I could understand the petitioner’s answer it was to this effect:  the initial decision had only stopped him from working for NHS Lothian and did not affect other employers.  He was asked this:  Was it his position that the initial decision had no effect at all on his status and in addition did he hold that the initial decision only effected employment with Lothian NHS.  His answer to this question was “yes”. 

[29]      The two positions were logically inconsistent.  His position made no sense.  In addition his position had radically altered from when he commenced giving evidence where his position was only that the initial decision had no effect on his status. 

[30]      This was a further factor in holding him completely incredible on the first issue before me. 

[31]      I accordingly, without difficulty, reject, for the foregoing reasons, the petitioner’s position that he held a genuine belief that his leave had not been curtailed and that he continued to have leave to remain until August 2010. 

[32]      With respect to the second broad issue that the petitioner genuinely believed he could not raise the present judicial review proceedings until 2015 I, again, without difficulty, found his evidence on this matter utterly incredible.  In the course of evidence it became apparent that from 2010 the petitioner had instructed three different law firms:  ATM Law (see:  6/34 of process page 29);  MLC (See:  6/34 of process at page 31) and Drummond Miller (see:  6/34 of process at page 34 and 7/3 of process).  These firms, all of which have considerable experience in the area of Immigration Law did not challenge the initial decision.  All of these firms, as I understood the evidence, were aware of the original decision.  The petitioner was asked:  could they have challenged the original decision and he said yes but they did not do so.  When asked if he had requested them to do so he answered he could not remember.  Lastly, he said that they did not believe his position. 

[33]      It is clear from the above correspondence that no challenge was made to the original decision, and the reason for there being no challenge was this:  those acting for the petitioner did not believe it was capable of being challenged and that other courses of action therefore required to be followed to try and secure the petitioner’s presence in this country.  These other courses of action were not followed because they were believed to be necessary precursors to a challenge to the original decision. 

[34]      Against the foregoing background of advice which the petitioner was receiving and the action taken on his behalf, together with my general view on his credibility and my findings on his credibility regarding the first issue, I am again wholly unable to hold that he genuinely believed he had to take these further steps before he could challenge the initial decision. 

[35]      I am satisfied for the reasons hereinbefore set out that the petitioner’s evidence that he genuinely held the foregoing two beliefs is incredible.  I accordingly hold that he did not genuinely hold these beliefs.  In my original opinion I was satisfied that all of the elements necessary for sustaining the plea of mora, taciturnity and acquiescence had been made out, subject to the court being satisfied that the petitioner did not genuinely hold the foregoing beliefs.  Having held that he did not do so I accordingly sustain the plea of mora, taciturnity and acquiescence and dismiss the petition. 

Relevancy
[36]      My decision as above set out, in that it leads to the dismissal of the petition, decides the matter before me.  However, I was briefly addressed on the issue of the relevancy of the petitioner’s pleadings and I accordingly turn to set out my views on this aspect of the argument. 

[37]      In essence three specific arguments were advanced on the relevancy issue.  These arguments related to paragraphs 5 and 6 of the petition. 

[38]      The first detailed submission was to the effect that reference to the petitioner’s family position at the time of the initial decision was irrelevant as the only relevant factor was whether or not he continued to be employed by NHS Lothian University Hospitals Division. 

[39]      Secondly the averments relative to the lack of a right of appeal were irrelevant.  The position was that in terms of section 82 of the Nationality, Immigration and Asylum Act 2002 the petitioner had no right of appeal.  That was an end of the matter. 

[40]      Thirdly the averments relative to the actings of the petitioner’s employers at various points were irrelevant as these acting’s had nothing to do with the respondent and these acting’s had no relevance to the taking of the initial decision. 

[41]      The petitioner’s reply was in essence for me to have regard to the note which he had produced in relation to these matters and I had regard to this. 

Discussion
[42]      The averments regarding the petitioner’s family are clearly irrelevant.  The only relevant consideration in terms of the restriction of the duration of the petitioner’s leave to remain was that his employment with NHS Lothian University Hospitals Division had been ended.  His entitlement to be in the United Kingdom was based entirely upon his said employment.  The decision maker therefore only required to consider that matter and nothing beyond that. 

[43]      The averments regarding a lack of a right of appeal I had some difficulty in understanding.  In terms of the 2002 Act there was no right of appeal.  The fact that there was no right of appeal provided could not in my opinion vitiate the original decision. 

[44]      With respect to the various averments regarding the actions of the petitioner’s various employers, once more these have no relevance to the initial decision.  The only relevant matter regarding the petitioner’s employers so far as the initial decision was concerned was that he had lost his job at the time of that decision. 

[45]      Once the various averments referred to above were deleted from the petition it appeared to me that there was no substance left in the petition and accordingly had I not been dismissing the petition on the basis of the plea of mora, taciturnity and acquiescence I would have done so in terms of the plea to the relevancy.