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AH FOR JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2024] ScotCS CSOH_62 (20 June 2024)
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[2024] ScotCS CSOH_62,
[2024] CSOH 62
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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 62
P686-23
OPINION OF LORD HARROWER
In the petition of
AH (FE/LA)
Petitioner
for
Judicial Review of a decision of the Secretary of State for the Home Department
Respondent
Petitioner: Forrest; Drummond Miller LLP
Respondent: Olson; Office of the Advocate General
7 June 2024
Introduction
[1]
In this petition for judicial review, the petitioner, AH, sought reduction of a decision
by the Home Secretary dated 18 May 2023, confirming a decision of 23 March 2023, refusing
his application for permission to stay in the UK as a health and care skilled worker.
[2]
I heard counsel for both parties at a substantive hearing on Friday, 7 June 2024.
At the conclusion of the hearing, I refused the petition, giving a brief statement of reasons.
There having been no agents for the petitioner in attendance throughout the hearing, I
indicated that I would be content to expand upon the reasons given if required. Agents for
2
the petitioner have now given notice of their intention to reclaim. This is my full statement
of reasons for refusing the petition.
Background
[3]
AH is a Pakistani national, who applied for and was granted leave to enter the UK as
a student from 29 August 2021 until 12 September 2023. He was issued with a residence
permit which also granted him permission to work up to 20 hours per week during term
time. Thereafter he enrolled as a student at Napier University.
[4]
On 25 November 2021, AH submitted an asylum claim, in connection with which, on
10 January 2022, he was given a screening interview at the Glasgow Asylum Unit. The
interview was conducted in Pashto, and his answers recorded in English in a document
entitled, "Initial Contact and Asylum Registration Questionnaire".
[5]
Part 3 of the questionnaire was headed "Travel and Third Country". Question 3.1
asked, "Why have you come to the UK?" AH's answer was recorded as being, "I came to
the UK for safety". Elsewhere in the document, AH was asked to explain the basis for his
asylum claim, and the reasons why he could not return to his home country (Question 4.1).
He was recorded as having explained:
"On several occasions the government have killed [sic] to kill me. They will shoot
members of the political party I am a member of on sight. That is why I left Pakistan
to save my life. ... If I returned to my home country I would be killed on sight. That
is why I came to the UK which is a safe country".
[6]
On the basis of these answers, the respondent formed the suspicion that AH had
used deception in order to enter the UK. On the same day as his interview, 10 January 2022,
AH was issued with a "Notification of Liability to Detention". The notice explained that it
3
had been issued to AH "because there [was] reasonable suspicion" that he may be liable to
removal or deportation from the United Kingdom. In a statement of reasons, it continued:
"Verbal Deceptive [sic]: You have admitted that your true intention for coming to
the United Kingdom was to claim asylum and not as per your entry clearance/what
you said to the Immigration Officer at port. You are therefore an illegal entrant and
you have committed a breach under s.26 (1) (c) of the IA 1971 verbal deception."
Section 26(1)(c) of the 1971 Act makes it an offence for a person to make or cause to be made
to an immigration officer a statement or representation "which he knows to be false or does
not believe to be true".
[7]
In a further section advising AH what would happen next, the Notification of
Liability to Detention stated that he would be granted immigration bail. By separate notice,
AH was placed on immigration bail, and on 5 May 2022 his bail conditions were varied in
order to allow AH to work up to 20 hours per week in line with his original visa conditions.
[8]
On 16 March 2023, AH made the application with which this petition for judicial
review is concerned, namely, for permission to stay in the UK as a health and care worker in
the UK. He did so having first obtained a certificate of sponsorship from a prospective
employer. As noted above, AH's application was refused on 23 March 2023 and, following
an application for administrative review, the Home Secretary confirmed her refusal by a
decision dated 18 May 2023.
[9]
In both decisions, the Home Secretary has given as reasons for refusal (a) that AH
was on immigration bail at the time of his application for permission to stay in the UK as a
skilled worker, citing paragraph SW2.2 of the appendix to the Immigration Rules applicable
to skilled workers; and (b) that in any event AH had used deception in his application to
enter the UK as a student, citing paragraph 9.8.3A of the general grounds for refusal
contained in Part 9 of the Immigration Rules.
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Remedy sought
[10]
In August 2023, AH brought this petition for judicial review, in which the sole
remedy sought was that of reduction, on grounds of error of law, of the Home Secretary's
decision dated 18 May 2023, refusing his application for permission to stay in the UK as a
skilled worker.
Preliminary point
[11]
Both parties lodged notes of the issues in dispute in preparation for the substantive
hearing. In neither of these notes had the Home Secretary's immigration bail argument been
focussed as an issue requiring resolution, although it is clearly set out by the Home
Secretary in his answers.
[12]
At the outset of the substantive hearing, I made inquiries of counsel as to the exact
scope of the dispute. I had wondered, standing the terms of both notes of issues, whether
parties had agreed to restrict the issues in relation to which they sought a judicial resolution.
[13]
However, both counsel confirmed that the fact that the petitioner was on
immigration bail at the time of his application remained a live issue in the case, and that
each of them had simply omitted it in error from their respective notes.
Petitioner's submissions
[14]
The petitioner submitted that the Home Secretary's decision was premature and
therefore unreasonable. It had assumed that there could only be one reason for AH coming
to the UK. However, in reality, there might be a variety of reasons why a person such as AH
5
might move from one country to another. To assume that AH had been dishonest had been
unreasonable on the part of the Home Secretary.
[15]
No decision could be made based on assumptions about AH's reasons for entering
the UK until after he had been fully interviewed as part of his claim for asylum. The case of
YL (Rely on SEF) China 2004 UKIAT 00145 explained the limited purpose of an interview
such as the one that took place on 10 January 2022. That was a mere screening interview
undertaken to establish the general nature of the claimant's case so that the Home Office
could decide best how to process it. Its purpose was not to establish in detail the reasons a
person gives to support a claim for asylum (YL, paragraph 19).
[16]
Secondly, and in any event, the Home Secretary's decision was irrational. Before any
finding of dishonesty could be made, it was necessary to apply a two-stage test. Firstly, the
fact-finder must ascertain (subjectively) the actual state of the applicant's knowledge or
belief as to the facts. Secondly, once his actual state of mind as to the facts is established, the
honesty of his conduct must be assessed by applying the (objective) standards of ordinary
decent people (Ivey v Genting Casinos (UK) Ltd [2018] AC 391, paragraph 74, applied in the
immigration context in Ullah v Secretary of State for the Home Department
[17]
The Home Secretary had failed to apply the first stage of that test. There had been no
exploration of AH's state of mind at the time he came to the UK. According to AH, he had
fully intended to study in the UK, and did in fact enrol to study at Napier. He was unaware
at that time that he was entitled to seek international humanitarian protection. Subsequent
to AH's arrival in the UK, he received information that made it, in his view, unsafe to return
to his home country. The question of whether AH had been honest or had used deception to
gain entry to the UK could only be established after a full inquiry into his state of mind had
6
been carried out, of the sort contemplated in YL, as part of the asylum application process.
Until then, the Home Secretary could not be said to have discharged the onus of proof by
showing on a balance of probabilities that AH had been dishonest (Ozhogina and Tarasova
(deception within para 320(7B) nannies) Russia/Russian Federation [2011] UKUT 197 ).
[18]
Insofar as the Home Secretary relied on AH being a person who had contravened
immigration law, his position was based on a denied assertion that AH had admitted that he
came to the UK to claim asylum.
The Home Secretary's submissions
[19]
The original decision of 23 March 2023 was not premature. The Home Secretary was
not required to carry out a full interview, either in connection with AH's asylum claim or
otherwise, before determining his application for permission to stay in the UK as a skilled
worker.
[20]
The fact that AH was on immigration bail at the time of his application was a
sufficient ground for refusing it. Appendix SW2.2(b) stated that, "If applying for permission
to stay the applicant must not be ... on immigration bail". The fact that AH was on
immigration bail at the relevant time was stated as a ground for refusal in both the original
decision and the decision on review.
[21]
In her administrative review decision, the Home Secretary had gone on to consider
additional grounds for refusing the application. These included paragraph 9.8.3A of Part 9
of the Immigration Rules, namely, "...an application for ... permission to stay may be
refused where a person used deception in relation to a previous application (whether or not
successfully)".
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[22]
The Home Secretary referred to AH's answers recorded at parts 3.1 and 4.1 of the
questionnaire (see paragraph 5 above). In his Note of Argument, the Home Secretary had
stated that there was no ambiguity in the words used. He had described AH's being afraid
for his safety as "[t]he reason" that he came to the UK. However, in his submissions at the
substantive hearing, counsel for the Home Secretary departed from that submission. He
accepted, in my view quite properly, that AH may have had more than one reason for
coming to the UK, and in particular that he may have come both in order to study and for
safety. Notwithstanding that concession, however, counsel submitted that the Home
Secretary's interpretation of the words used by AH in his answers given at the asylum
screening interview had been a reasonable one and had not been premature. Counsel for the
Home Secretary reiterated his submission that the fact that AH was on immigration bail was
a sufficient reason for refusal and therefore he had not been prejudiced by the Home
Secretary having considered other grounds for refusal.
Petitioner's reply
[23]
In a brief reply, counsel for the petitioner addressed the immigration bail argument
which had not been covered in his Note of Argument. His short submission was that the
court had to have regard to the reason why AH was placed on immigration bail. When
pressed as to why I had to have regard to anything other than the fact that AH was on
immigration bail, counsel replied that otherwise the Immigration Rules "could not operate".
Decision
[24]
I would begin by noting that, in the grounds of review laid before the Home
Secretary as part of the process of administrative review, the petitioner had advanced an
8
argument based on personal bar. Importantly, however, the petition stopped well short of
suggesting that the Home Secretary was personally barred from making the decision under
review. Statement 7.4 of the petition averred that the Home Secretary's decision of 5 May
2022, allowing AH to work while his asylum claim was being processed, was "not consistent
with dealing with someone who ha[d] allegedly deceived her". From statement 7.5 of the
petition, it would appear that the relevance of that averment was restricted to an assessment
of the reasonableness of the Home Secretary's actions.
[25]
Neither the petitioner's Note of Argument, nor the submissions made on his behalf
at the substantive hearing, sought to reinstate personal bar as a ground being relied upon in
this judicial review. Nevertheless, I took the precaution of seeking and obtaining an
assurance from counsel for the petitioner that it formed no part of his argument.
Immigration bail
[26]
In my decision, I agreed with the Home Secretary regarding what I took to be his
principal ground of opposition. Appendix SW2.2(b) to the Immigration Rules stated that,
"If applying for permission to stay the applicant must not be ... on immigration bail". AH
was on immigration bail at the time of his application. The Home Secretary was therefore
entitled to refuse his application.
[27]
I was unable to accept counsel for the petitioner's submission that, in order to apply
the Immigration Rules, the court was required to investigate why the petitioner had been
placed on immigration bail. Rather, the rule seemed to me to be perfectly clear. It was the
fact that the applicant was on immigration bail at the relevant time that was critical.
[28]
No doubt it would be open to the applicant to challenge his status as being a person
on immigration bail. Counsel for the Home Secretary informed me that there was no right
9
of appeal from a decision to place someone on immigration bail, but that the appropriate
means of redress would be by making an application for judicial review.
[29]
Whatever may be the appropriate avenue of redress, the validity of the decision to
place the petitioner on immigration bail formed no part of his present case. There was
therefore no discussion of the questions that might have arisen if it had been. On the face of
it, the petitioner would appear to be out of time insofar as any challenge to the decision to
place him on immigration bail is concerned. There was no discussion of whether or not time
could or should be extended. There might have been other problems associated with
making a collateral challenge of this sort in an application to reduce a quite different
decision (cf R v Wicks [1998] AC 92, Boddington v British Transport Police [1998] 2 AC 143).
It would appear that none of these matters had been before the court when it granted
permission to proceed.
[30]
It is striking that the argument from immigration bail had been left unanswered both
in the petition and in the petitioner's Note of Argument. I was left unpersuaded by
counsel's belated attempt to answer it by arguing that the court required to investigate the
reasons why an applicant had been placed on immigration bail. In my view the fact that AH
was on immigration bail at the relevant time gave the Home Secretary a sufficient reason to
refuse his application for permission to stay in the UK as a skilled worker.
Deception in a prior application
[31]
Having made that decision, I nevertheless addressed briefly the argument that the
Home Secretary had erred in concluding that AH had used deception to enter the country as
a student.
10
[32]
Firstly, I rejected the argument that the Home Secretary was required to await the
outcome of AH's full asylum interview before making a decision in relation to his skilled
worker application. These were separate applications. I had no difficulty with what I took
to be the broad thrust of YL. Insofar as the applicant's asylum application was concerned,
the screening interview would be of limited relevance. However, as the tribunal made clear
in YL, asylum seekers are still expected to tell the truth (op cit, paragraph 19). Just as, in the
context of the asylum application, answers given at the screening interview could be
compared to answers given later (Ibid), I could see no difficulty in principle with the Home
Secretary comparing answers given at the screening interview to answers given earlier,
albeit in the entirely different context of an application to enter the UK as a student. In
short, I accepted that statements made in one context, here the asylum application, might
legitimately be taken into account by the Home Secretary in considering the applicant's
truthfulness in another context, in this case, AH's original visa application.
[33]
In this case, the Home Secretary appears to have made an assumption about AH's
true reasons for coming to the UK. She relied on information recorded as having been
supplied by AH in the screening interview undertaken in the context of his asylum
application. Without putting it to AH for comment, she appears to have assumed it was
inconsistent with AH's earlier visa application. She did not inquire into the state of AH's
knowledge or belief as to the relevant facts as at the time of his student visa application. She
did not inquire into whether AH had been aware that he might apply for asylum. She did
not inquire into AH's reasons for applying for asylum when he did, namely, that the
situation in his home country had deteriorated and that his fears for his safety had
increased. The current Home Secretary now accepts that AH might have had more than one
11
reason for coming to the UK. One of these might have been for study. Another might have
been for safety.
[34]
Even if the Home Secretary might ultimately be proved to have been correct in her
assessment of AH's original reasons for coming to the UK - indeed just because she might
well have been correct in her assessment about such a serious matter as whether AH had
practised deception - she should, in my view, have put those concerns to AH for his
comment.
[35]
That might be said to be a basic requirement of fairness. Or it might also be said that
the Home Secretary had failed to follow the two-stage procedure now accepted, following
Ullah, to be applicable in immigration cases (see also R(Balajigari) v Secretary of State for the
Home Department [2019] 1 WLR 4647). Ullah was a deprivation of citizenship case, but what
fairness requires will not now turn on whether the case is one of forfeiture or of application
(R v Secretary of State for the Home Department, ex parte Al-Fayed (No 1) [1998] 1 WLR 763, per
Lord Woolf, MR, pages 773G-774A). As the court put it in LLD v Secretary of State for the
Home Department, "The DNA of dishonesty is the same, in whatever legal context it
[36]
In his short oral submissions, counsel for the Home Secretary argued with some force
that this case was not one which required, or indeed would bear, any particularly
sophisticated legal analysis. Ultimately, he submitted, the question for the court was a
simple one of whether the Home Secretary had acted reasonably. Had it been necessary to
decide the matter, I would have been prepared to conclude, subject to what I say in the next
section, that the Home Secretary had acted unreasonably in determining that AH had
necessarily been deceptive when making his original visa application.
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Conclusion
[37]
The Home Secretary was entitled to refuse the petitioner's application to remain in
the UK as a skilled worker on the ground that AH was on immigration bail when it was
made. The sole remedy sought in the petition was for reduction of the Home Secretary's
decision refusing AH's application. Specifically, counsel did not offer to amend the petition,
in order to seek any alternative remedy, for example, a decree of declarator that the Home
Secretary had acted unlawfully in concluding that AH had used deception to enter the UK.
Nowhere in the petition did the petitioner seek to found upon the serious consequences that
might be visited upon the petitioner as a result of such a finding remaining on his
immigration file. This was simply not part of his case. Permission to proceed with the
judicial review had not been granted on any such alternative argument.
[38]
In any event, it is by no means clear that any such amended case would have been
successful. The Home Secretary's finding that AH had been deceptive was made on
10 January 2022 when she placed him on immigration bail. On the face of it, AH would
appear to be too late to challenge the reasonableness of the Home Secretary's actions at that
time. The petitioner might have sought to argue that the decision under challenge, namely,
the refusal of his application to stay in the UK as a skilled worker, was based on some fresh
or renewed finding of deception. Or he might have argued that it was unreasonable of the
Home Secretary, when determining AH's skilled worker application, to rely on the earlier
finding of deception without making further inquiries. However, there was no discussion of
these matters at the substantive hearing. Rather, the petitioner's case relied on the argument
that any finding of deception must necessarily be provisional until AH's full asylum
interview had been carried out. For the reasons given above, I rejected that argument.
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Disposal
[39]
In the above circumstances, I considered that I had no alternative but to refuse the
petition.
