Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 7

P550/15

Lord President

Lord Menzies

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the Reclaiming Motion by

DERICK AMOAKO YEBOAH

Petitioner

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner: Party

Respondent: McIver; Office of the Advocate General

31 January 2017

Introduction

[1]        This is a reclaiming motion (appeal) from a decision of the Lord Ordinary, dated 5 July 2016, dismissing a petition for judicial review on the grounds of: (1) mora, taciturnity and acquiescence; and (2) irrelevancy.  The petitioner has been in the United Kingdom since 2003.  He has failed in several attempts to secure leave to remain, yet he has never been the subject of any removal directions.  It is to be hoped that, at the conclusion of these proceedings, the petitioner’s position will be regularised one way or another and sooner rather than later.

Background

[2]        The petitioner is a Ghanaian national.  He first entered the United Kingdom on a student visa on 4 October 2003.  On 26 January 2005, and again on 11 April 2006, NHS Lothian University Hospital Division were granted an Immigration Employment Document to enable the petitioner to work for them for a period of 4 years.  The later IED was granted on condition that the petitioner gained full registration with the Nursing and Midwifery Council within the agreed NMC timescale.  On 31 August 2006 the petitioner was granted leave to remain in terms of the IED until 31 August 2010.  This involved permission to work as a nurse with the NHS.  The petitioner was thereafter employed by NHS Lothian with a view to completing the Overseas Nurse Adaptation Programme, which he had started in January 2005.  In accordance with NMC requirements, completion ought to have been achieved within 3 to 6 months.  In the petitioner’s case, he failed to achieve this but was granted extensions initially to December 2005 and then, following an appeal, to 30 June 2006.

[3]        After a NHS Lothian appeal hearing on 13 February 2007, the petitioner’s employment was confirmed as appropriately terminated because he had failed to complete the programme.  The decision letter of 19 February made reference to the petitioner claiming that his work permit had been cancelled but that, on enquiry with the respondent, the letter had not been received at the respondent’s office.  The letter stated that “therefore your work permit was not cancelled”.  NHS Lothian said that they would now be obliged to inform the respondent that the petitioner was no longer employed by them.  However, it was explained that the respondent’s office had advised that:

“... in view of your pending Employment Tribunal Case, your work permit for the Adaptation Programme will be suspended pending the outcome of your Tribunal.  If successful, your permit will be reinstated without having to apply for a new permit.”

The petitioner was told that, as he no longer had a work permit, he could no longer undertake Care Assistant bank shifts.

[4]        On the same date as the decision letter, NHS Lothian notified the respondent of the termination of the petitioner’s employment.  They explained that the petitioner was pursuing an ET claim and they understood that his “permit will be suspended pending the outcome of the ET claim”.  Some months went by before, on 19 July 2007, the respondent wrote to the petitioner with a view to updating their records.  Then, on 3 August 2007, the respondent wrote to the petitioner in the following terms:

“... 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.”

[5]        Proceedings before the ET had been scheduled for a hearing over several days in October 2007.  In a letter dated 29 August 2007, the petitioner’s then solicitors (Messrs Thompsons) wrote to him concerning the apparent fact that he had continued working on bank shifts notwithstanding the absence of a work permit.  The solicitors were so concerned about this that they advised the petitioner to abandon his claim, which failing they would withdraw from acting.  The petitioner’s union (UNISON) instructed his solicitors to withdraw, and they did so in late September 2007.  The petitioner appears to have agreed to withdraw his claim in December 2007.  Meantime, the petitioner had continued working.  He had commenced another Overseas Nurse Programme with Glasgow Caledonian University in October 2007.  Once more, he was expected to complete the course within 3 to 6 months.  He did not do so and was eventually dismissed on 13 February 2009.  The petitioner challenged this decision in the sheriff court; the case only reaching finality on 9 August 2016 with a decision of an Extra Division ([2016] CSIH 66).

[6]        On 31 March 2010, the petitioner made an application for leave to remain in the UK for reasons not falling within the Immigration Rules.  This was made by new solicitors (ATM Law, Essex).  It was based on the petitioner’s right to respect for his private and family life under Article 8 of the European Convention.  The petitioner had been living with his wife in the UK for some time, although neither of them had been doing so legally.  They had a child born in January 2007.  The application was refused by the respondent on 16 August 2010.  The decision letter recorded that the petitioner’s leave had been “curtailed” on 3 August 2007.  Because he did not have leave to remain at the time of his application, there was no right of appeal.  The letter advised that, if the petitioner did not leave the UK, enforcement action would be taken against him.  Such action, the letter continued, could generate a right of appeal.  No action was taken.  A further application for discretionary leave to remain was refused by the respondent on 15 June 2011.  Once more, the petitioner was advised that he had no right to remain in the UK and that he ought to make arrangements to leave without delay.  If he did not, it was then a matter for the respondent to decide if and when action would be taken.

[7]        The petitioner consulted the Ethnic Minorities Law Centre, who advised him that a further application, which was based upon the same considerations as had been advanced in the past, was unlikely to succeed.  The Centre declined to pursue the matter.  Undaunted, in 2013, the petitioner consulted yet new agents (Messrs Drummond Miller LLP), who made another application for discretionary leave to remain.  This was based on a contention that the petitioner had an ongoing ET claim in England against the NMC and failure to grant leave to remain would breach the petitioner’s Article 6 right.  The application was refused by the respondent on 1 May 2013.  The respondent rejected what were said to be Article 8 (not 6) grounds proffered.  Once again it was said that there was no appeal.  If the petitioner failed to leave, enforcement action would be taken, at which point a right of appeal could arise.  No such right did arise, as no action was taken.  Indeed, the respondent intimated that there was no intention to take such action pending a hearing, which had been scheduled for 5 February 2014, for the ET case. 

[8]        On 12 February 2015, the petitioner wrote, what he described as a “Before Claim/Pre Action Protocol” letter, asking for a review of previous decisions and complaining that he had been in “immigration limbo” for several years.  The original decision to “curtail” leave was challenged as procedurally unfair; no opportunity having been given to the petitioner to make representations.  These might have included reference to the petitioner’s child (who is now in Ghana).  It was said that the respondent’s actions had prevented an appeal.  At the time, the petitioner had had other NHS options for work, beyond those of NHS Lothian.  The last sentence of the letter of 3 August 2007 was said to prevent the respondent from taking enforcement action.

[9]        This letter complied with the Practice Note No. 2 of 2013 (paras 2 to 5) and was sent to the relevant office of the respondent in Glasgow.  On 18 February 2015, the respondent replied by letter from an office in Middlesex.  This stated that the respondent had reviewed the decision to curtail leave to remain, but had considered that the Immigration Rules had been applied correctly and fairly.  There had been no requirement to give advance notice of the decision.  The decision did not give rise to a right of appeal.  The petitioner’s work permit had been suspended.  Therefore he did not meet the Rules under which his leave to remain had been granted.  Paragraph 323 stated that a person’s leave may be curtailed “(ii) if he ceases to meet the requirements of the Rules under which his leave to enter” (sic).  Article 6 had no application to immigration proceedings.  The decision to refuse leave (sic) was “maintained”.

Lord Ordinary’s decision

[10]      In his petition, the petitioner challenged the original decision to restrict his leave to remain, the three later decisions refusing leave to remain and the respondent’s pre-action protocol response.  The respondent insisted on two pleas-in-law, first, that the petitioner’s averments were irrelevant, and, secondly, that the petitioner, having delayed unduly in seeking judicial review, the petition ought to be refused by reason of mora, taciturnity and acquiescence.  

[11]      At the first hearing, the focus was initially on the second of the respondent’s pleas.  The Lord Ordinary decided that the only decision challenged in the petition was the original one of 3 August 2007.  The grounds all related to the restriction of the petitioner’s right to remain as a work permit holder.  There was no challenge in the petition based on Article 8.  The period of seven years and nine months amounted to unreasonable delay, given the requirement for good administration in the judicial review context.  In the absence of any good reason for the delay, mora was established.  Even if the subsequent decisions refusing leave could be seen as being challenged in the petition, the passage of time from the dates of each of those decisions was still unreasonable in the absence of any explanation.  The response to the petitioner’s pre-action protocol letter did not constitute a separate decision.

[12]      The petitioner’s submission, that he had asserted his rights by making various leave to remain applications, was misconceived.  These applications did not challenge the original decision.  They sought leave to remain on a different basis.  At no point, until the judicial review petition, had the petitioner asserted that the original decision had been wrong.  Given that the petitioner had contended that he was entitled to remain in the UK on a different basis, the natural inference was that he had accepted the original decision.  It could not, in any event, be argued that his actions amounted to a challenge to the original decision after he had withdrawn his ET claim in December 2007.

[13]      Neither reliance nor prejudice had to be shown in order to establish the plea of mora, taciturnity and acquiescence.  The lengthy passage of time, together with the absence of a good explanation for the inaction and silence, could yield an inference of acquiescence.  The failure of the respondent to issue removal directions did not bar a plea of mora, which was concerned with the conduct of the petitioner alone.  There was no basis for suggesting that the respondent was barred from issuing a removal direction, given that she had relied upon the petitioner’s status as an over-stayer in her later decision letters refusing leave to remain on Article 8 grounds.

[14]      The petitioner’s position was that he believed that he had been entitled to remain in the UK until at least August 2010 and that he had to make further applications for leave to remain before he could bring a judicial review.  The Lord Ordinary accepted that, if the petitioner was to establish that he had held those beliefs, that would rebut the presumption of acquiescence which could be taken from his inaction and silence from 2007 to 2015.  The Lord Ordinary accordingly ordered a proof restricted to whether the petitioner did hold those beliefs.

[15]      Following proof, at which the petitioner alone testified, the Lord Ordinary concluded that the petitioner was not credible.  He found that the petitioner had not held the beliefs alleged.  He was a “wholly unsatisfactory” and “evasive” witness, who suffered from “convenient” memory lapses when asked to confirm any detail which could be cross-checked with other information.  The interpretation given by the petitioner to the original decision letter was “absurd”.  It was not one which he could have continued to hold after he had been advised by at least two sets of solicitors that it was incorrect.  Given that the petitioner had instructed three sets of solicitors, none of whom had challenged the initial decision, his position that he genuinely believed that the initial decision could not be challenged until after 31 August 2010 was untenable.

[16]      The Lord Ordinary then addressed the relevancy of the petitioner’s pleadings.  In broad terms, the challenge which the petitioner made to the original decision was that it was inconsistent with his right to a fair hearing under Article 6 of the Convention, and procedurally unfair.  The petitioner had made averments about: the failures to take into account his family situation at the time of the restriction and to advise him clearly of his right to appeal; and the actions of his employers at various times.  The Lord Ordinary held that all of those matters were irrelevant to the original decision.  Had the petition not been dismissed on the basis of the plea of mora, it would have been dismissed as irrelevant.

Submissions
Petitioner

[17]      The petitioner submitted that the Lord Ordinary had erred, first (ground 2) in holding that the respondent’s reply to the petitioner’s pre-petition letter was not a separate decision capable of being challenged.  It amounted to a review (R (Gopikrishna) v Office of the Independent Adjudicator [2015] ELR 190, at paras 161-171; Mohamoud v Birmingham City Council [2015] PTSR 17 at paras 52-64; YSI v Advocate General [2015] CSOH 71).

[18]      Secondly (ground 4), the Lord Ordinary had erred in holding that the test for acquiescence involved an honest belief, rather than an objective, assessment.  He ought not to have ordered a proof.  The petitioner did not have to prove that he believed that he thought that he continued to have leave to remain after the letter of 3 August 2007.  It was sufficient if the petitioner’s belief was not unreasonable.  The final sentence of that letter meant that the respondent was personally barred forever from maintaining that he did not have leave to remain (Clyde and Edwards: Judicial Review paras 13.25 and 19.08).

[19]      Thirdly (ground 6), the Lord Ordinary had erred in finding that the petitioner was not a credible witness.  The Lord Ordinary had failed to have regard to what had been “indisputable evidence”.  The fact that the petitioner had chosen to interpret the original decision in a manner which was beneficial to him did not make him incredible.  There were explanations for the inconsistencies in his evidence, which the Lord Ordinary had considered to be significant, but had not taken into account (Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63 at para 102).  Dishonesty required consciousness that one was transgressing ordinary standards of honest behaviour (Twinsectra v Yardley [2002] 2 AC 164 at paras 20-22).  The petitioner may have been wrong in his interpretation of the respondent’s letter, but that did not make him dishonest.  Having lost his job with NHS Lothian he had been entitled to find work elsewhere in the NHS.  As he had obtained work in Glasgow, he saw no need to challenge the decision to curtail his permit.  The Lord Ordinary had ignored the fact that the petitioner was told by the respondent not to go. 

[20]      Fourthly (ground 1), the statement in the letter of 3 August 2007 that the petitioner did not have to leave was a stand-alone statement, meaning that the petitioner had unlimited leave to remain (Secretary of State for the Home Department v Enorzah [1975] Imm AR 10; and see cases on mistake cited in MacDonald: Immigration Law and Practice (7^th ed) para 83.48).

[21]      Fifthly (ground 5), the averments in the petition were, contrary to the view of the Lord Ordinary, relevant.  The loss of employment did not automatically result in a curtailment of leave to remain.  The respondent was bound to take into account all the circumstances in deciding whether to do so.  The petitioner’s right to litigate under Article 6 was relevant, as was his Article 8 right.  The latter required knowledge of his family situation.  Because the petitioner was continuing to challenge his dismissal, any curtailment in advance of the final decision was premature (Re Talalaev’s Application [2013] NIQB 119).  The assertion that section 82 of the Nationality, Immigration and Asylum Act 2002 did not allow the petitioner a right of appeal was erroneous.  The petitioner had continued to be affected by the respondent’s actions (R (Johnston) v Secretary of State for the Home Department [2016] 3 WLR 1267 at para 28).

[22]      Sixthly (ground 3), the Lord Ordinary had been wrong to treat the petition as a challenge to the initial decision only, rather than to the five decisions.  He had taken an overly technical approach.

Respondent
[23]      The respondent submitted that the petitioner sought to challenge aspects of the case, which had not been decided by the Lord Ordinary, and were accordingly irrelevant to his appeal.  In any event, the petitioner had identified no error of law on the part of the Lord Ordinary.  The contention that the response to the pre-petition letter “reset the clock” was not correct.  It was conceded that the Lord Ordinary had erred in applying a subjective test in his assessment of acquiescence.  The test was an objective one (United Co-op v NAP for Entry to the Pharmaceutical List 2007 SLT 831 at para 33).  He had erred in allowing a proof, even if his findings on credibility had been sound.

[24]      The final sentence of the letter of 3 August 2007 could not be interpreted as meaning that the petitioner did, contrary to the earlier parts of its content, have leave to remain beyond 31 August 2007.  The Lord Ordinary had been correct to describe such a contention as “absurd”.

Decision

[25]      Although judicial review procedure is sufficiently flexible to allow a Lord Ordinary to determine in which order the issues of law are to be addressed, a preliminary plea to the relevancy would normally fall to be dealt with before one to the merits involving inquiry into the facts such as mora, taciturnity and acquiescence (see Maclaren: Court of Session Practice 403 endorsed in Bethune v Stevenson 1969 SLT (notes) 12).  It is in that order that matters will be addressed.

[26]      The petitioner’s challenge is, at least technically, to five actions of the respondent.  However, the respondent’s pre-petition response was not a new decision capable of independent review.  The Practice Note (No. 2 of 2013) was an attempt to ensure that judicial review petitions were not raised unnecessarily.  It was designed to enable the respondent to look at the potential grounds for review and to see if a different decision might be the way forward.  However, a response stating that the original decision had been correct and was being “maintained” cannot be regarded as a new decision itself capable of independent review.  There was no statutory review procedure generating a new decision on the merits (cf eg Mohamoud v Birmingham City Council [2015] PTSR 17).  Even if there had been, and the new decision were reduced, this would simply leave the original decision standing.  It would have no other substantive effect.  In so far as YSI v Advocate General [2015] CSOH 71, which proceeded upon a concession relative to the pre-petition response, may be thought to have determined otherwise, it must be regarded as having been wrongly decided.  A response affirming the correctness of a decision challenged in a pre-petition letter does not have an existence separate from that decision, any more than if its content were averred in the written answers to the petition when lodged.

[27]      The substantive grounds of challenge in the petition are not easy to isolate.  The petitioner has one plea-in-law to the merits.  It contains no coherent proposition of law capable of being sustained in such a manner as to produce a practical result.  Had the petitioner not been a party litigant, the petition would have foundered on that rock alone.  However, no point to that effect was taken by the respondent.

[28]      The absence of a specific plea necessitates a trawl of the averments in order to uncover the bases of challenge.  As the Lord Ordinary determined, they all appear to be criticisms of the original decision of 3 August 2007 to restrict the expiry date of the petitioner’s leave to remain to 31 August 2007.  The reason for doing so was the termination of the petitioner’s employment with NHS Lothian on 19 February 2007 and thus the petitioner “ceased to meet the requirements of the Immigration Rules under which ... leave to remain was granted”.  NHS Lothian had considered that they had had no alternative but to terminate the petitioner’s employment because he had failed to complete the programme as required by the Nursing and Midwifery Council.  This decision was confirmed after an appeal on 19 February 2006.

[29]      Combing through the petitioner’s averments, it is said that the respondent’s original decision involved a wrongful exercise of discretion and procedural unfairness (statement 4a).  It was not in accordance with the law and breached Article 6 of the European Convention.  The latter related to the petitioner’s ET claim.  The contention is that the respondent did not consider the circumstances of the petitioner of his wife and 6 month old child at the time and relied solely on the report from NHS Lothian that employment had been terminated (para 6a).  The respondent could have made a decision outside the Immigration Rules.  The petitioner had obtained a second work permit.  The respondent ought to have invited the petitioner to make representation on the subject.  The decision letter was said to have deprived the petitioner of a right to appeal under the Human Rights Act 1998 by stating that no right of appeal existed.

[30]      The court is unable to fault the reasoning of the Lord Ordinary that, since the only basis for the petitioner’s leave to remain in the UK was his employment by NHS Lothian, factors beyond that were irrelevant to a decision to curtail leave to remain “as a work permit holder”.  That is all that the decision did.  In February 2007 the petitioner had been told by NHS Lothian that they were informing the respondent that the petitioner’s employment had been terminated.  His “work permit” (ie the IED) was to be suspended pending his ET claim.  If the petitioner had wished to seek leave to remain on grounds other than “as a work permit holder” it was incumbent upon him to do so.  That could have had no influence on the limited decision taken.

[31]      The letter had been correct in stating that there was no appeal against the decision under the 2002 Act since the petitioner had not been required to remove. 

[32]      The Lord Ordinary correctly determined that all of the grounds of challenge relate to the respondent’s original decision to restrict the expiry date of the petitioner’s leave to remain as a work permit holder.  The attack on the later decisions refusing leave to remain all hinge on that challenge.  There are no separate Articles 6 or 8 grounds relative to the later decisions set out in the petition.  The original decision was made more than 7 years before the lodging of the petition.  It was not challenged in any of the several subsequent applications by the petitioner for leave to remain. 

[33]      Whether the plea of mora, taciturnity and acquiescence is made out is a matter to be assessed in an objective manner; the essential question being whether, if delay combined with inaction has occurred, it is to be inferred from the facts and circumstances, notably the petitioner’s conduct, that acquiescence in the decision has occurred (Somerville v Scottish Ministers 2007 SC 140, LP (Hamilton) at para [94] following Singh v Secretary of State for the Home Department 2000 SLT 533, Lord Nimmo Smith at 537).  Prejudice or reliance are not necessary to establish the plea, but they may feature as circumstances from which acquiescence may be inferred (ibid).  Detriment to good administration will play a part when further administrative action has been taken in the belief that the decision has been acquiesced in (Singh (supra)).

[34]      It follows from this that the petitioner’s subjective state of mind is essentially irrelevant, even if it may have been interesting to know the petitioner’s reasoning for his failure to take action.  The proof was not necessary.  It could add nothing substantive to the equation.  Although the Lord Ordinary erred in this regard, having rejected the petitioner’s evidence for reasons which are both adequate and compelling, he went on to consider the issue in objective terms by determining that no-one could have regarded the final sentence of the original letter of 3 August 2007 as negating the content of what had been written above it and thus providing indefinite leave to remain, notwithstanding an express curtailment to a fixed date of 31 August 2007.

[35]      There is force in the contention that the meaning of the final sentence of the letter, beyond the obvious, is obscure.  The respondent was unable to elucidate its purpose in submissions.  However, the meaning of the letter is otherwise clear.  Because the petitioner had lost his job, in terms of his employers’ IED, he no longer met the conditions under which his leave to remain “as a work permit holder” had been granted and that his leave to remain was therefore being brought to an end as of 31 August 2007.  It may be that the ongoing ET proceedings, of which the respondent had been informed, would prevent an immediate inference of acquiescence, standing the prospect of a re-instatement of the IED and hence the grant of leave to remain, but these had ended by December 2007.  The question then is what did the petitioner do thereafter to challenge the decision in the letter.

[36]      The answer to this question is that he did nothing, or at least nothing that would have been known to the respondent, until the pre-petition letter over seven years later.  Rather, he applied for leave to remain on three separate occasions on human rights grounds and outwith the terms of the Immigration Rules, which would otherwise have applied to his case.  His applications proceeded on the assumption that he had no leave to remain “as a work permit holder”.  In these circumstances, given the time period involved, the Lord Ordinary was correct to hold that the plea of mora, taciturnity and acquiescence had been made out. 

[37]      The effect of a plea of mora is not dismissal but, as the respondent’s plea correctly states, refusal of the prayer of the petition (effectively absolvitor; see Maclaren (supra)).  That is the remedy which ought now to be the operative one, the plea having being explored at a hearing.  The reclaiming motion is effectively refused other than that the interlocutor of 5 July 2016 will be amended to delete “dismisses the petition and proceedings” and substitute “refuses the prayer of the petition set out in statement 3”.