Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 30

 

P503/14 & P787/14

OPINION OF LORD McEWAN

In the Petitions by

(1) WAQAS AHMED

and

(2) HARDEEP KAUR CHAHAL

Petitioners;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondents:

First Petitioner:  Dean of Faculty, Caskie;  Drummond Miller LLP

Second Petitioner: Devlin;  Drummond Miller LLP

Respondents to First Petitioner:  Carmichael QC, J McGregor;  Office of the Advocate General

Respondents to Second Petitioner: McIlvride QC, McGregor;  Office of the Advocate General

16 February 2017

[1]        I was asked to hear these petitions together since there is a point of importance common to both of them.  The hearings began on 12 January 2016 and there were a number of continuations, and, in the case of Chahal, a late amendment.  Submissions finally concluded on 6 April but I received a late submission in the form of an important authority (SM and Qadir) on 15 April.  Parties also had statements of issues and written submissions.  Some authorities were referred to although not all of these were fully canvassed.  I have listed them below in this opinion which is common to both cases. 

Dante v Assessor for Ayr 1922 SC 109

British Railways Board v Glasgow Corporation 1976 SC 224

R v Secretary of State for the Home Department ex parte Ram [1979] 1 WLR 148

London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1

R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74

Bugdaycay v Secretary of State for the Home Department [1987] AC 514

King v East Ayrshire Council 1998 SC 182

R (Ullah) v Secretary of State for the Home Department [2003] EWCA Civ 1366

R (Lim) v Secretary of State for the Home Department [2008] INLR 60

R (A) v Croydon London Borough [2008] EWCA Civ 1445; (affirmed [2009] 1 WLR 2557)

R (Saleh) v Secretary of State for the Home Department [2008] EWHC 3196 (Admin)

R (RK Nepal) v Secretary of State for the Home Department [2009] EWCA Civ 359

Maslov v Austria [2009] INLR 47

R (Birmingham and Solihull Taxi Association and Anr) v Birmingham International Airport and Anr [2009] EWHC 1913 Admin

Anwar v Secretary of State for the Home Department [2011] 1 WLR 2552

R (Aguilar Quila & anr) v Secretary of State for the Home Department [2011] UKSC 45

The Firm of Archid for Judicial Review [2013] CSOH 137

Terri McCue (as guardian of Andrew McCue) Petr [2014] CSOH 124

MDMH (Bangladesh) Petr [2014] CSOH 143

R (Mahmood) v Secretary of State for the Home Department [2014] UKUT 439 (IAC); [2015] EWCA Civ 744

R (Thapa) v Secretary of State for the Home Department [2014] EWHC 659 (Admin)

R (Gazi) v Secretary of State for the Home Department [2015] UKUT 327 (IAC)

MN v Secretary of State for the Home Department 2014 SC (UKSC) 183

R (Shabaz Ali) v Secretary of State for the Home Department [2014] EWHC 3967 (Admin)

R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784

R (Jan) v Secretary of State for the Home Department [2015] INLR 226

R (Khan) v Secretary of State for the Home Department [2014] EWHC 2494

R (Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744

R (Sood) v Secretary of State for the Home Department [2015] EWCA Civ 831

Kiarie and Byndloss v Secretary of State for the Home Department [2015] EWCA Civ 1020

Sheraz Mahmood v Secretary of State for the Home Department [2015] EWCA Civ 744

R (SM and Qadir) v Secretary of State for the Home Department [2016] UKUT 229 (IAC)

Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615

 

The following text books were referred to viz

 

Clyde and Edwards; Judicial Review, paragraph 12.13

Wade and Forsyth; Administrative Law

 

A large number of cases and other authorities were listed in the productions and written submissions.  Only some of these were actually referred to in the argument before me, and not all of these were fully canvassed.  In many, the facts were far removed from what is in issue here.  Because of the risk of over analysis I will in due course only refer to some of these cases, and attempt to identify what is truly in point.             

[2]        In August 2016, when the draft opinion was well advanced, I was asked to reopen the case.  Parties were agreed about this and new submissions were lodged.  The purpose was twofold; firstly to look closely at SM and Qadir (cit supra), and two new cases heard together recently in the Court of Appeal viz Shehzad and Chowdhury (cit supra).  It was not possible to arrange a rehearing until late November and by this time I was aware that SM and Qadir was itself an appeal to the Court of Appeal.  (No 7/10 of process.) (That appeal may not now proceed.)  On 24 November I again heard parties.  The respondent had lodged a supplementary written submission (No 22 of process) and the petitioner had replied with her further supplementary written submission (No 23 of process).  I refer to these later in this Opinion as the “November submissions”. 

[3]        It will be helpful to narrate at the outset the main legislation involved in both of these cases:  it is in the following terms viz, the Immigration Act 1971 enacts inter alia:

“3(1) … where a person is not a British citizen …

… (b) … he may be given leave to enter the United Kingdom (or, when already there, leave to remain …

… (c)  if he is given limited leave to … remain … it may be given subject to … conditions.”

 

The Immigration and Asylum Act 1999 enacts inter alia:

“… 10(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 -

(b)  he uses deception in seeking (whether successfully or not) leave to remain;  …”

 

The Nationality, Immigration and Asylum Act 2002 enacts inter alia:

“… 82 (1)  Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

… (2) … ‘immigration decision’ means -

… (g)  a decision that a person is to be removed … by way of directions under section 10(1) … (b) … of the Immigration and Asylum Act 1999 …

 

… 92(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), (ha), and (j).”

 

The effect of this is that, if all that is involved is whether leave to remain is to be granted or refused, there is an in country appeal (ICA) to a Tribunal.  However, if a decision is made by directions to remove someone (a section 10 decision) then only an out of country appeal is available (OOCA).

[4]        The facts of both cases are similar and so there is some overlap.  Let me look first at the pleadings.  Each underwent considerable adjustment.  In Ahmed what is said is this.  The petitioner wishes reduction of a section 10 decision made on 15 May 2014 as part of two decisions.  He is now 29 years of age and came to the UK as a student in 2010.  He was given further leave to remain until 1 January 2014 and in December 2013 applied for further leave to remain.  On 15 May 2014 that application was refused.  The reason was alleged deception in his language test taken in November 2013.  The tests which many have to take are to judge proficiency in reading, writing, speaking and comprehending English.  It is conducted by an Educational Testing Service.  In short, the allegation is that someone else took the test pretending to be the petitioner and that the system in operation detected this.  The whole matter of “proxies” taking these tests was uncovered by BBC television reporters and broadcast in an edition of Panorama in February 2014.  The system of testing and the checks made to discover abuse are described in the pleadings and are the subject of comment in many of the cases which will be referred to later.  The evidence about it is described as “generic” and can be seen, followed and understood in the affidavits of two civil servants Millington and Collings (both lodged, No 7/2 and 7/3 of process).  These are described as “hearsay expert opinion” but not related to the specific candidate.  These are criticised in the petition from paragraphs 17 to 39.  There are problems with false positive results, noise interference and many other things as described in the affidavits and the pleadings.  For present purposes it is not necessary to detail this here.  It is sufficient to note that evidence of this kind was the basis of the decision adverse to the petitioner. 

[5]        The decision letter is No 6/3 of process (4 pages).  It can be summarised in this way and inter alia says:

“Application to remain… On 23^rd December 2013 you made a combined application for leave to remain in the (UK)… We have considered your application …and your application has been refused… In your application, you submitted TOEIC certificates from Educational Testing Service (ETS)… During an administrative review process, ETS have confirmed that your test obtained was through deception… your scores… have been cancelled.  As deception has been used in relation to your application, it is refused under paragraph 322(1A) of the Immigration Rules… (all page 1)… I have considered all the information available to me and I am satisfied that Waqas Ahmed is liable to administrative removal as defined in section 10 of the Immigration and Asylum Act 1999 on the basis that… ETS have confirmed that your test obtained was through deception.  We are therefore satisfied that you have submitted a document in support of your application for the purpose of obtaining leave by deception… (all page 2).”  (The last two pages of the letter confirm in more detail what I have summarised).  Documents 6/7 to 6/9 of process confirm the above. 

 

[6]        The petitioner tables one plea-in-law, the respondent six.  Needless to say he denies any deception was used. 

[7]        In the Chahal case some of the facts are similar but it is also a “breach of working conditions” case as well as alleged deception in language testing.  The petition is summarised thus.  She is Indian and is now aged 24.  She came as a student with leave, then further leave to remain until 9 February 2014.  She applied for further leave on 7 February.  On 8 February she was arrested for working in breach of her visa conditions.  That allegation is denied.  She was released from arrest.  As part of her application for further leave to remain she had submitted a TOEIC certificate from ETS relating to her language test.  Her application for leave was refused on 25 July 2014.  In the petition she seeks reduction of that decision made on the basis of her alleged deception.  An Article 8 ECHR plea was not merited upon. 

[8]        The Answers for the Minister state that on 8 February she was served with a notice that a decision to remove her had been made under section 10, accordingly any leave she had was invalidated then and the later decision was a nullity. 

[9]        When Mr Devlin later amended the petition in March (No 19 of process) he raised the issue of special and exceptional circumstances justifying judicial review. 

[10]      I next look at the relevant letters.  No 7/1 of process (IS.151A) is dated 8 February 2014.  It states (read short) inter alia that “…(she is) a person in respect of whom removal directions may be given in accordance with section 10 (of the Act)… as; i) a person who has failed to observe a condition of leave to enter or remain… having worked in breach of your student conditions in the UK…”

[11]      No 7/2 (IS.151A part 2) is the same date and says inter alia “…a decision has been taken to remove you from the United Kingdom… You are entitled to appeal this decision… after you have left the United Kingdom…”  That decision was deemed to be served on 8 February 2014. 

[12]      I note from No 6/2 of process (Immigration Factual Summary) that the following is stated “…08/02/14 Encountered by Enforcement working in the Ivy Indian Restaurant, admitted under caution to working illegally and was served with an IS151A and IS151A part 2 before being detained…”

[13]      Next is the decision of 25 July 2014, No 6/3 of process.  This is the decision on the application for leave to remain made on 7 February.  This makes clear in bold type the following “…In view of the earlier section 10 removal decision, you do not have a right of appeal against this decision…”, the reason given for refusing the application relates to her language test and states inter alia “…the SSHD is satisfied that there is substantial evidence to conclude that your certificate was fraudulently obtained…” 

[14]      The Dean of Faculty opened the case for Ahmed and asked whether the respondent’s plea to competency could be sustained.  That raised an issue of whether there was an adequate alternative remedy.  The petitioner was in the UK as a Tier 4 student and had applied for leave to remain on that basis.  Leave was refused on the basis that the Minister concluded that a language test result was obtained by deception.  That was the first decision.  The second decision was then made under section 10 of the 1999 Act.  That was to remove him since his test was obtained by deception. 

[15]      Had the case only concerned the first decision then the petitioner had a right to an in country appeal (ICA for short) to a Tribunal.  However, the section 10 decision meant he only had an out of country right of appeal (OOCA for short).  A finding of deception and a decision to remove on that basis was a serious interference with rights at common law and the right to liberty under the European Convention on Human Rights.  This finding was based on a report by the testing service that scores obtained in the tests were invalid due to deception.  That depended on expert opinion and no more.  An OOCA could deal with this but not the consequences of having to leave and the detention.  The act of removal interfered with his rights and any appeal could not cure that.  An OOCA was a difficult exercise from abroad and would need video links set up.

[16]      The Dean then examined the decision made in May 2014 (No 6/3 of process) to make the section 10 removal.  He said the alleged deception had been uncovered and reported in a television programme.  It was reported that the language testing for writing, reading, speaking and listening had shown up major irregularities.  The conclusion in the case of this petitioner (and many others) was that a third party had taken the test.  He had no notice of that until he got the letter and it appeared that he was accused of deception because voice recognition software was used on his test (VRS).  Counsel then looked at the two affidavits which described how this software operated.  These are Nos 7/2 and 7/3 of process (Millington and Collings).  This could only be opinion evidence and in any case was not the best evidence.  It only showed how the system was set up and a number of problems and questions it brought with it.  I do not need to detail here what the Dean said as the affidavits are, in a sense, self-explanatory.  The points he highlighted related to the BBC Panorama programme in February 2014, “fake sitters”, what types of deception occurred, voice recognition, impersonation and proxy testing.  Two particular colleges were named (Romford and Watford).  He looked at the decentralised methods of scoring, “blind scoring”, and the problems of using this biometric technology.  There could be issues with “fake positives” and “fake negatives”.  Many things could create interference, eg noise and air conditioning.  The petitioner had been tested by technology.  If any human being was involved in his test result he was entitled to know who that was and how the test was done or assessed.

[17]      Next he looked at the petitioner’s own report on the aforesaid affidavits.  It is 6/6 of process (JP French Associates: Dr Harrison, 31 pages).  It is very critical of the system which, on a specific test of an individual, produces only generic information.  It would be impossible to cross-examine that.  He then introduced his Note of Argument (No 22 of process), turned to the Home Secretary’s own guidance, and looked at the case of MN (2014) (cit supra).  The Dean said that MN showed that full proof was needed and generic information would not do.  Where under section 10, deception had to be found, removal became a matter of discretion.  That was a significant interference with his right to liberty and reputation. 

[18]      The case of Khawaja (1984) (cit supra) was important since it covered people using fraud.  That introduced the concept of “precedent fact” and how the courts should deal with that.  Where liberty was in issue, coupled with an allegation of dishonesty, it was for the court to say if the evidence was sufficient.  The onus was on the Minister and the standard was “high probability”.  Counsel took me through all the speeches and concluded that the finding of deception coupled with an intention to remove was firstly a matter of “precedent fact” and was subject to judicial review on that ground alone as well as on ordinary grounds.  In passing he looked at Giri (2015) and Maslov (2009) (both cit supra).  He then devoted some time to the detailed jurisprudence.  He looked at some twelve immigration cases, many recently decided.  He accepted that some of these were against him, eg Mahmood (2014) (cit supra) some were similar to the present facts eg Gazi (2015) (cit supra) and others were in his favour eg Thapa (2014) (cit supra). 

[19]      From these he drew a number of conclusions.  He argued that in principle every question of deception is appealable and reviewable and it was for the court in a judicial review to decide whether to decline jurisdiction due to an alternative remedy.  The court has to respect that Parliament has set a procedure for appeal, but yet there are cases where the court should retain jurisdiction in special or exceptional cases.  The present was one such case.

[20]      If reduction was granted the section 10 decision would fall and leave a way open to an ICA.  The Dean then said that MN was authority for this type of generic evidence not being satisfactory and so, if the petitioner was bound to succeed, why remove him and force an OOCA.  He accepted there was no bad faith here, and the fact of discretion should make no difference. 

[21]      The Dean made a reply speech and I now quote from that.  He said that the respondent had to show that an alternative remedy was available and could deal with the issue.  The evidence before a Tribunal would inevitably be different to what the court had.  If the respondent did not have the evidence now then that was an abuse of power objectively looked at. 

[22]      Miss Carmichael responded in the Ahmed case for the Minister.  What she said was this.  I should sustain her pleas to competency and relevancy.  The rule was to use the proper remedy unless there were relevant averments of why that should not be done.  There was no onus on the respondent to establish why the alternative remedy should be used.  Nos 7/1 , 7/5, 7/6 and 7/7 of process showed that it was not difficult to engage in an Out of Country Appeal (OOCA).  There were many of these appeals and they provided an effective remedy.  She looked at Mahmood and Kiarie (2015) (both cit supra) where the matter was discussed.  There would be a video link.  The petitioner could deny that he cheated.  The respondent would lead the evidence of the system, the caseworker and the two people who checked.  The Tribunal would then decide.  The onus was on the petitioner to say why they should not use the prescribed remedy.  She read from the British Railways Board (1976) case and Dante (1922) (both cit supra).  There were no special circumstances here. 

[23]      Counsel then embarked on her own analysis of a list of some fifteen cases.  She added the following.  Gazi did not assist the petitioner although the facts were similar.  It is accepted that there are serious consequences and liberty is common to all the cases.  That in itself did not make them special or exceptional.  Scots law should be the same as English law.  Thapa was wrongly decided and should not be followed.  The correct approach was to be seen in Bilal Jan (2015), Khan (2014) and Ali (2015).  Sood was also of importance as was Lim (2005).  In Khawaja the alternative remedy point was never argued. 

[24]      I next move to deal with the argument in the second case viz Chahal.  Although there was considerable overlap with the first case, the argument became markedly different.  There was also, in the middle of it all, a minute of amendment for the petitioner.

[25]      Mr Devlin began by looking at section 10 which he said was in two parts.  There had to be objective facts and then an evaluation.  The first was the “…deception…”.  That triggered a discretion covering “…may be removed…”.  Counsel looked at Thapa (which he commended) and Khawaja.  He said the enforcement structure of the Minister herself recognised that two stage process.  There had to be an irreducible minimum.  The cases of Bilal Jan and Khan had been wrongly decided.  Counsel also looked at Shabaz Ali which he said was correctly decided at first instance. 

[26]      The whole matter turned on whether precedent facts were established.  If there were none there could be no discretion.  If there was no discretion to exercise then there could be no decision, and so, absent a decision, there could be no appeal, therefore no alternative remedy.  He then took me to cases involving children to make the point about the tension between fact and discretion.  For short hand I call these Croydon and Lambeth (2008) (cit supra).  He also addressed the well-known case of Ullah (2003) (cit supra) (a marriage case).  If there were not enough facts then a decision taker exceeded his jurisdiction if he exercised any discretion.  Counsel described that as “…an exercise on fresh air…”.  In the present case, on the facts, the minimum for deception was absent.

[27]      [When the case next resumed two weeks later Mr Devlin had amended (No 19 of process) and Mr McIlvride had lodged answers (No 20 of process).  There was a supplementary list of cases and three new productions.]

[28]      The argument continued thus.  The true decision taken here was under sections 3 and 4.  Neither of these sections provided any trigger.  They simply posed “hard edged” questions of whether the evidence was sufficient.  Counsel said Ullah was an example of that.  It was a “trigger” case whereas this was not, like Bugdaycay.  Here the deception was not a precedent fact.  The precedent fact was whether the evidence was sufficient. 

[29]      Counsel then moved on to deal with the issue of an alternative remedy.  Judicial review was, he argued, the only remedy.  It was not a hypothetical question and the decision in July was not a nullity.  It was intra vires, and even if it was not, it was valid until set aside.  The section 10 decision related to working and was not challenged here, but the section 3 decision was based on deception.  That was a serious matter and could result in prison.  Counsel looked at Archid.  The court should scrutinise the strength or quality of the evidence said counsel.  The spreadsheet was not an impressive document and the evidence of Collings and Millington was merely generic.  It raised real and unanswered questions.  In any event, the standard of proof should be calibrated to the seriousness of the allegation and the possible consequences, ie prosecution and exclusion for ten years.  In moving me to sustain his argument he referred to a very recent case (Quadir).  I was much later given the full text of the tribunal decision there. 

[30]      I allowed Mr Devlin a right of reply and from that I summarise any new matter raised.  Deception was not the precedent fact (Bugdaycay; Giri).  The precedent fact was the existence of sufficient factual evidence to discharge the burden of proving deception.  That was a mixed question of fact and law, and here there was no factual basis (Ullah).  Counsel looked again at many of the cases and said that this case raised “exceptional circumstances” (Gazi).  Due to the way the decision had been taken there was no way the petitioner could raise the “deception” issue other than by judicial review.  He cited further Giri, Khawaja and Bugdaycay.

[31]      Senior counsel for the Minister opened by inviting me to sustain his first, which failing his second plea-in-law, and to refuse the prayer of the petition. 

[32]      Mr McIlvride then posed the question of whether the July decision (25 July 2014; No 6/3 of process) was an operative decision at all.  He said the effect of service of the Notice (No 7/2 of process) to remove her was to invalidate her leave to remain from 8 February 2014.  In these circumstances when the Minister came on 25 July to consider the petitioner’s application for further leave dated 7 February, the petitioner had no leave to remain capable of being varied or refused.  In consequence that purported decision was a nullity and of no legal effect (Ali at para 48).  The court would not exercise its supervisory jurisdiction to reduce a decision when reduction would have no practical effect.  The court would not act in vain.  The present case was like Ali viz a section 10 decision and then a subsequent decision.  The Court of Appeal there confirmed the two lower court decisions.

[33]      The matter would have to be tested in an out of country appeal on the section 10 decision.  If that was successful only then would the respondent need to revisit the “leave” decision.  (Sood was looked at).  King (cit supra) was also discussed on the question of practical result.  Archid could be contrasted and distinguished because there the decision had an operative effect. 

[34]      Let me now briefly look at what I have called the November submissions.  I refer to these for their terms and can summarise them briefly in this way.  The Minister’s submission notes that both Gazi and SM were decisions of the Upper Tribunal and that no opportunity was taken in SM to disapprove of or reconsider Gazi.  It was pointed out (para 7) that different jurisdictions were being exercised in each case.  Mr Justice McCloskey rejected, in the earlier case, any improper purpose and at the stage of supervisory review was not proposed to say the “generic evidence” was insufficient.  SM was different, as there, evidence was heard.  Nonetheless the generic evidence still sufficed to discharge the initial onus on the Minister.  Mr McIlvride noted what happened in Shehzad where again at the initial stage the “generic” evidence was held to be sufficient.  He ended by discouraging me from making any fact finding assessment on evidence not before the Minister. 

[35]      Mr Devlin replied to these new points.  He maintained that Gazi considered a different issue ie improper purpose, which did not arise here.  He went on (his paragraphs 7 to 44) to give a detailed analysis of improper purpose which is subjective and irrationality which is objective.  Correctly, in my opinion, he draws attention to the difficulty of proving improper purpose and I consider that such would not lightly be presumed.   I pause to observe what he said at paragraph 21 and re-emphasised before me.  The case about the taxi contract for Birmingham Airport , R (Birmingham and Solihull Taxi Association) (cit supra), is instructive.  It might have looked as if, in that case, a letter was written too early to end the BASTA contract but even that was not enough to overcome objective justification.  He accepted that it was difficult to apply the objective test in the face of strong English authority supporting Millington and Collings at the preliminary stage.

[36]      I regard what counsel writes in paragraphs 45 to 58 as a temptation to form my own opinion about Millington and Collings but, without the advantage of any proof, I cannot fall into such an error.

[37]      Paragraphs 59 to 30 (sic) in my view are an acknowledgement that Shehzad etc is not in his favour.  In Court Mr Devlin fairly accepted that. 

[38]      I want now to look at some of the immigration cases where the facts are similar to the present cases before me.  Thapa (2014) is first as it was much canvassed in the arguments.  It is a decision of a deputy judge.  It was a conditions of leave case.  He was not allowed to work but was allegedly seen working in a restaurant.  A section 10 decision was made to remove him.  The case was decided on the basis that there was a discretion whether to make a removal order or not.  That had not been done and the decision was quashed.  At paragraph 56 the judge said this:

“…Once it was conceded that there was a discretion… the decision maker must… record such facts as to enable this court to satisfy itself that the decision as to the existence of precedent fact and consequent exercise of discretion have been exercised fairly…”

 

It is clear that the judge had some evidence to look at (see para 65) and she also attached importance to the problems of an OOCA (para 70).  It is not a language testing case but it is a strong decision.  The problem with it is that there are a number of contrary decisions.  The same judge (Helen Mountfield QC) heard the case of Shabaz Ali (2014) which is a language testing, section 10 case.  There was also an issue of the sequencing of the decisions.  By this time (paras 50 to 54) the judge was faced with criticism of Thapa. 

[39]      She, unsurprisingly, devoted some of her opinion to justifying what she had done in the earlier cases also pointing out that “breach of condition” cases may differ from “deceit” cases (para 88).  On the facts she did not look into the evidence about how to test the validity of the testing.  She refused judicial review (see para 5).

[40]      The case went on appeal linked with the case of Mehmood (2015) which was a “breach of working conditions” type of case.  It was commented (para 72) that though parts of Thapa had been disapproved, her decision in the instant case was upheld.  In Ali all there was was the generic evidence of Collings, Millington and Harrison (para 69) that she described as the “gist” of the evidence.  It was enough for her at first instance and also for the Court of Appeal (para 72) to say this matter was for the appellate system, ie the Tribunal.  In particular the court did not consider it to be a “special or exceptional” factor (see para 49). 

[41]      In Ali (2014) at first instance the deputy judge analysed a number of the cases where her decision in Thapa was criticised (paras 66 to 87).  I am content to adopt her analysis to avoid a detailed discussion of many conflicting cases.  It is also of importance to notice in the Court of Appeal that an example of what could be “special or exceptional” is found at paragraphs 49 and 64 and 65 where the case of Anwar and Adjo is referred to for what happened to a Ms Pengeyo (described as an abuse of power).  Ms Pengeyo’s case was in fact settled.

[42]      Next is Gazi (2015) again a language testing case.  There was a substantive hearing before the Upper Tribunal and the generic evidence was discussed in some detail and subject to some serious criticism.  There was no full evidential hearing (para 36) and it was pointed out that judicial review proceedings are ill equipped to conduct evidential hearings and that should be done on a case by case basis.  The appeal was refused and it was commented that an OOCA gave an adequate remedy.  MN (2014) is a recent Scottish case and is of assistance on a number of points.  The language testing here was of a different type “SPRAKAB”.  There were linguists and analysts, a degree of anonymity but a reasoned report.  It was clear that the Tribunals below had considered a lot of evidence.  It was pointed out that no single approach was suitable for all tribunals and, provided it was fair, quick and efficient, the Tribunal could receive evidence which would be inadmissible in a court of law.  The system was approved although the appeals were allowed on the facts due to the way the experts gave their evidence.

[43]      Bilal Jan (2014) was an illegal working case.  Judicial review was refused.  The Court respected the Tribunal appeal provisions and did not find the case special or exceptional.  Thapa was said to be wrong on the jurisdictional point (para 40).  Judicial review is a remedy of last resort as was made clear in Lim (2007) where on the facts, the breach of working conditions was minor.  That Court of Appeal decision was followed in RK (Nepal) (2009). 

[44]      Sood is an important and recent case.  It, like some others, concerns language testing and to a lesser extent “linkage”.  The testing was the same “generic evidence” seen in many other cases.  Three decisions had been made on the same date viz (i) section 10 removal, (ii) refusal of a variation of leave to remain and (iii) Schedule 2 detention.  The issue argued was whether he should be allowed permission to apply for judicial review.  Permission had twice been refused and the Court of Appeal in a closely reasoned opinion refused to alter that decision.

[45]      The case is of course fact sensitive and there was an issue over interpretation of a Home Office letter.  However, following the earlier decision in Mehmood and Ali, the court was clear that all these factors were appropriate for an out of country appeal, and that there were “no special or exceptional” factors present.  At paragraph 44 the court raised the threshold for that to an even higher level. 

[46]      Khawaja (1984) was referred to by all the parties.  It is in fact two separate cases both involving deception and non‑disclosure to obtain entry to the UK.  The facts were described as clear (97).  The issue was whether on the facts the immigration officer had reasonable grounds to conclude they were illegal entrants.  That was described by all the judges as “a precedent fact” which had to be established on sufficient evidence.  The House of Lords looked at what evidence the officer had and concluded, in the case of Khawaja only, that ground had been made out.

[47]      It was argued that the effect of the case, decided over 30 years ago, was that, in the present case, since the generic evidence was so unsatisfactory no section 10 decision should ever have been made.  I do not agree the case vouches that proposition.  There was no argument over alternative remedy which has come to the fore in recent cases.  Not even the Minister advanced that (see pages 87/88).  It was mentioned in passing by Lord Fraser of Tullybelton (page 97/8) but not developed.  In my opinion the case can and should be distinguished for the point I have to decide.  There are a number of other observations I want to make about Khawaja.  Although the point was not taken about alternative remedy, the fact that there was one was remarked upon in the speeches.  The appeal route via an adjudicator was noted by Lord Fraser at pages 97 and 98.  It was noted as being an OOC appeal.  His Lordship, while noting the disadvantage of that, did not regard it as “worthless”.  Lord Templeman  at p 127 D/E discussed the value of such OOC appeals, and at p 116 B/C Lord Bridge of Marwich noted the point.  After I took the case to avizandum I was sent the full report of the Upper Tribunal hearing in SM and Quadir [2016] UKUT 229 (IAC).  Mr Justice McCloskey was part of the Tribunal.  He had, as noted elsewhere, given the opinion in Gazi.  In the case of both appellants language testing was involved and the same generic evidence was offered by the Minister (ie Collings and Millington) with some other evidence.  Dr Harrison’s evidence was given for the petitioners.  Both appellants gave evidence and led other evidence.  This, however, was not a judicial review but an appeal from decisions of the First-tier Tribunals.  The extensive report discusses the evidence in detail.  Both appellants were believed (paras 87 and 99) and declared “… clear winners …” (para 101).

[48]      It has to be observed that the case very much depended on the onus of proof and standard (see paras 57-58).  The standard is the higher end of the balance of probabilities.  The onus was described as “… the evidential pendulum swings three times …” (para 57).  First there is an evidential onus on the Minister to adduce sufficient evidence as to the existence of a fact in issue.  Then it is up to the applicant to discharge an evidential burden of raising an innocent explanation.  Then the burden retransfers to the Minister to show why that innocent explanation is to be rejected.  (Described in para 57 as “… a veritable burden of proof boomerang …”!).

[49]      What was actually decided by this method is interesting.  In spite of the many shortcomings of the generic evidence and having heard Collings and Millington, both contradicted by Harrison, the Tribunal found at paragraph 68 that the Minister had discharged the burden on her.  They then went on to say that the appellant’s had raised an innocent explanation which the Minister could not rebut.

[50]      For present purposes what is important is this.  I am not in a position to conduct an evidential hearing.  I was not invited to do so and in my opinion, and on authority, it sits uneasily with judicial review procedure.  The Upper Tribunal after a full hearing nonetheless appears to support the generic evidence as enough to discharge the initial onus on the Minister on what has been described as precedent fact.

[51]      Also, what it does do is point to the suitability of the tribunal system for dealing with the proof of such matters when both sides can be heard.  Giri (2015) was looked at in some detail but I do not regard it as in point.  That case concerned a refusal of leave to remain under section 3 not section 10, where, because of the existence of an alternative remedy, judicial review would not normally be available (see para 20). 

[52]      Later in the case I was sent the appeals in the cases of Shehzad and Chowdhury (2016).  These were both cases in the Court of Appeal.  They were not judicial review cases but were appeals from Tribunals after hearings on the facts.  In Shehzad the Minister was successful because there was no jurisdiction for an in country appeal due to the Human Rights claim being too late.  Though part of the grounds of appeal, it was not made before instituting the appeal.  In Chowdhury the lower Tribunal had failed to appreciate that the generic evidence was enough for dishonesty at the initial stage.   

[53]      Maslov (2009) in the European Court is a wholly different type of case.  It involved criminal behaviour in a young person described as juvenile delinquency.  It was an Article 8 case and his removal to Bulgaria was found not necessary or proportionate.  There are interesting passages about the seriousness of comparative crimes (para 48) and the concepts of “private” and “family” life (para 63) but in my opinion for present purposes the case is no more than a fact specific example unrelated to a section 10 removal.  It also was very much bound up with the position of a young person, which this case is not. 

[54]      I want now to say something more about the cases I have called for shorthand Croydon and Lambeth.  It concerned two young asylum seekers who had arrived from Libya and Afghanistan.  They each claimed to be under 18 and entitled to accommodation as a “child in need”.  Both local authorities considered them to be over 18.  An issue arose as to whether age was a precedent fact.  Age determination was an inexact science with a margin of error, and judicialisation of the process was to be avoided.  Determination became complex when the subject was of an unfamiliar ethnicity, culture and background.  In seeking judicial review of the refusal they asked for age to be determined by an independent body and not the authorities’ social workers.  That was refused.  It was not precedent fact.

[55]      In the Court of Appeal, [2008] EWCA Civ 1445, the cases were looked as “a child in need”.  It is plain from paragraphs 60 to 84 for example that the court looked to a practical solution arrived at by experienced social workers “…more expert than a judge would be…” (78).  To contract it out to independent experts “…would be a recipe for administrative chaos…” (82).

[56]      That pragmatic view did not find favour when the case went to the Supreme Court [2009] 1 WLR 2557.  The opinion there only looked at whether the person was “a child” and that was ultimately for the court to decide.  If there was a difficulty then the court had to resolve it.  On the other hand “in need” was a value judgment for the local authority.  The argument that it was a precedent fact seems to have been avoided (para 29), although that is not clear from paras 30 to 32.  How the court is to do this is not clear in para 33.  That lack of clarity seems to me to be repeated in the sections of the opinion dealing with how the need is to be assessed.  It seems to contemplate the setting up of tribunals (para 44).  In the end Baroness Hale of Richmond JSC could not say what relief the successful appellants wanted.  Lord Hope of Craighead DPSC (paras 53, 54) does not provide any answer.  It does not seem to me that this case is authority for saying that who was or was not a child was a precedent fact.

[57]      The point of this discussion is simply this.  The case was referred to in order to reason its result by analogy with the “deception” in the present case.  However, both cases are wholly different on their facts and operate within a wholly different statutory scheme.  In the one case it is a social work structure for children with experienced workers; in the other a system of tribunals trained and experienced in deciding mixed fact and law.  I do not think the one easily superimposes on the other and I remain ill at ease with the practical result of the children cases which seems to me to be inconclusive.  I think the courts are ill suited in judicial review to decide upon these matters. 

[58]      It is important to consider the question of alternative remedies from the stand point of Scots law apart from the special cases of immigration.  There are two well-known authorities Dante and British Railways Board.  The former concerned stances on the Low Green of Ayr used by the reclaimer to sell refreshments.  He maintained he should not be entered on the Valuation-roll and sought declarator and interdict against assessment.  He had not used all remedies open to him before the Valuation Committee.  The action was held as incompetent as he had not used the statutory remedy of appeal open to him.  At page 128 Lord Ormidale observed “…in a statutory matter such as valuation, when by the statutes a particular remedy is provided, it has been decided more than once that an aggrieved party must seek relief from the Tribunal appointed…”.  Dante was followed in the later case which concerned rating of certain premises at St Enoch Station in Glasgow.  (See Lord Justice Clerk Wheatley, page 240, and Lord Kissen, pages 242-3.  Lord Leechman was of the opinion that Dante was of general application). 

[59]      Finally I come to my decisions in both of these cases and what remedy, if any, must be given.  It was not disputed that the decisions complained of in each case were proper subjects for judicial review and the common law remedy of Scots law.  What was disputed was whether, in either case, on the facts and law the petitioners had any remedy.  As the arguments developed and matured, especially with recent jurisprudence in England, the whole matter seemed to me to become clearer.

[60]      In general terms in Scotland, the remedy of reduction will not lie where Parliament has provided expressly for an alternative remedy which the petitioner had failed to use.  That is quite clear from the well-known cases of Dante and British Railways Board.  In the latter case it was made quite clear, on many earlier authorities, that “special circumstances” could provide an exception to that rule (see Lord Justice Clerk Wheatley, p239).  In the same case (p244) Lord Leechman demonstrated how no special circumstances existed about the office premises in question in that case. 

[61]      Rating and Valuation may seem to be a world away from immigration but, in my opinion, reasoning by analogy produces the same result.  In the world of immigration there exists a well-structured system of Tribunals and appellate Tribunals which have held various changing names from time to time.  These bodies are staffed by experts with skill and experience in hearing the complex facts of immigration cases, information about foreign countries and the like.  The judges there are trained to perform these tasks.  Such skills are not usually within the remit of High Court judges.

[62]      From the many cases cited to me it is clear that the courts in England have now taken a hard line over the remedy of judicial review where resort has not been had to the tribunal system.  I conclude from the English cases that an applicant now has to show that there are “special or exceptional factors” present.

[63]      With that in mind I approach what has happened in both cases before me.  All that has happened is that the Minister has made a decision on the basis of information placed before his officials.  In neither case has there been any fact finding exercise in front of any Tribunal of any kind.  That simple truth distinguishes the cases from many of the authorities referred to in the arguments of counsel.  It has not been suggested that in both these cases there are any exceptional factors, bad faith or any improper motive.  That was expressly disclaimed and against the current trend of opinion in England it is not for the court to speculate or look for such.  In my view the recent cases of Gazi, SM and Shehzad are against both petitioners.  They are English cases but I cannot ignore or distinguish them.  To do so would be perverse, and so on the narrow point of the generic evidence, coupled with the existence of an alternative remedy, I cannot find in favour of either petitioner.

[64]      That is sufficient for the disposal of both petitions.  However, there are a number of other matters which I require to deal with.

[65]      I do not think now that any issue arises over the assessment of what is the level of proof on a balance of probabilities.  I do not think that any “sequencing” point arises since in the Chahal case there is a five month separation in the decision dates.

[66]      That leaves only the decision as to whether in Chahal the July decision is a nullity.  I am reluctant to categorise it as such.  The respondent was bound to make a decision on the application.  She was entitled to refuse it for the reasons given and the recent immigration cases now support that.  To refuse to make a decision would, in my view, have been wrong.  Even if there was no leave it does not follow that the justifiable decision was flawed.  What it does mean, however, is that the grant of any judicial review would be pointless as it would not reinstate any leave.

[67]      No special or exceptional circumstances have been shown.  The trend in England is to discourage speculation as to what these might be.  Personal liberty and inconvenience is a feature of every case.  There is in place an existing system to deal with both cases. 

[68]      In the result I will deal with the pleas-in-law as follows.  In the Ahmed case I will repel the plea-in-law in the adjusted petition and sustain the respondent’s first to sixth pleas‑in-law.  In the Chahal case I repel both pleas-in-law of the petition.  In the respondent’s answers I sustain both pleas-in-law.  I therefore refuse the prayers of both petitions and decern.  I shall continue both cases on all questions of expenses to a date to be afterwards fixed.