Lord Justice Underhill
INTRODUCTION
1.
The background to the four appeals before us can be summarised, in bare
outline, as follows. The Immigration Rules require applicants for leave to
remain in some circumstances to pass a test of proficiency in written and
spoken English. The principal form of approved test is the “Test of English
for International Communication” (“TOEIC”) provided by a US
business called Educational Testing Service (“ETS”). ETS’s TOEIC tests have
been available at a large number of test centres in Britain. The spoken English
part of the test involves the candidate being recorded reading a text, with the
recording then being sent to an ETS assessor for marking. In February 2014 the
BBC Panorama programme revealed that there was widespread cheating at a
number of centres, in particular – though not only – by the use of proxies to
take the spoken English part of the test. In response to the scandal, ETS at
the request of the Home Office employed voice recognition software to go back
over the recordings at the centres in question and try to identify cases in
which it appeared that the same person had spoken in multiple tests and could
thus be assumed to be a professional proxy. In reliance on ETS’s findings the
Secretary of State in 2014 and 2015 made decisions in over 40,000 cases cancelling
or refusing leave to remain for persons who were said to have obtained leave on
the basis of cheating in the TOEIC test.
2.
Although it seems clear that cheating took place on a huge scale, it
does not follow that every person who took the TOEIC test in any centre was
guilty of it. Large numbers of claims have been brought, either in the
First-tier or Upper Tribunals (“FTT” and “UT”) or in the High Court, by
individuals who say that the Home Office’s decision in their case was wrong:
this has become known as the TOEIC litigation. There have already been many
decisions on both procedural and substantive questions. Criticisms have been
advanced of the way in which the Home Office approached the task of identifying
individuals who had cheated, and some challenges have succeeded. It is the
Secretary of State’s case that the proportion of the impugned decisions that
was wrong or unfair is very small indeed; but even if that turns out to be the
case the individuals affected by those decisions will have suffered a serious
injustice.
3.
All four Appellants are the subject of decisions taken by the Secretary
of State on the basis (or, in one case, partly on the basis) that they had cheated
in TOEIC tests. All of them deny that allegation. The primary question raised
by these appeals is whether they can challenge the Secretary of State’s
decision (whether by judicial review or appeal) from within the UK or whether
they can only do so by an appeal brought after they have left the country – a
so-called “out-of-country appeal”. However the route by which that question
arises is not the same in all four cases. They fall into two categories.
(A) The
Section 10 cases. Harwinder Kaur (“HK”), Rajwant Kaur (“RK”), and Ataullah
Faruk (“AF”) – who are from India,
Pakistan and Bangladesh respectively – all came to this country on student
visas and were subsequently granted extensions of their leave to remain. Each
has been served with a notice that they are liable to removal under section 10
of the Immigration and Asylum Act 1999 (so-called “administrative removal”) on
the basis that they used deception in obtaining those extensions by using a
proxy for the spoken part of their TOEIC tests. Each denies doing so and has
sought permission from the UT to apply for judicial review of the section 10
decision. Permission was in each case refused on the basis that they have an
appropriate alternative remedy in the form of an out-of-country appeal; but
permission has been given to appeal to this Court against that refusal. The
primary issue raised by the appeals is whether an out-of-country appeal is
indeed an appropriate remedy in their cases and others like them. They rely in
particular on the recent decision of the Supreme Court in R (Kiarie
and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380, in which it was
held that an out-of-country appeal was not a fair or effective procedure in the
(different) context of challenging a deportation order.
(B) Mr
Ahsan’s case. Nabeel Ahsan (“NA”) is a national of Pakistan
who made an application for leave to remain on human rights grounds, which was
refused by the Secretary of State partly on the basis that he had cheated in a
TOEIC test. Other things being equal, he would be entitled to an in-country
appeal against that decision; but the Secretary of State has certified that his
human rights claim is clearly unfounded, which has the effect that any appeal
can only be pursued from outside the UK. Permission to apply for judicial
review of the certification has been refused by the UT; but permission has been
given to appeal to this Court.
4.
HK and NA were represented before us by Mr Stephen Knafler QC,
leading Mr Rowan Pennington-Benton in HK’s case and Mr Greg Ó Ceallaigh in NA’s
case. RK was represented by Mr Michael Biggs and AF by Mr Zane Malik. The
Secretary of State was represented in all four cases by Ms Lisa Giovannetti QC, leading Mr Colin Thomann. The appeals were expedited because of the
number of pending cases potentially affected by them, and that led to some regrettable
hiccups in the preparation of the papers; but the quality of the oral submissions
from all counsel has been very high. For convenience, and with apologies to
their respective juniors, I will sometimes in this judgment refer to Ms
Giovannetti’s and Mr Knafler’s skeleton arguments and written submissions as if
they were their sole authors, which I am sure is far from being the case.
5.
I will deal separately with the two categories of appeal identified at
para. 3 above, but it will be convenient by way of preliminary (1) to set out
the relevant statutory provisions, which to some extent overlap between the two,
and (2) to give a short overview of the TOEIC litigation to date.
(1) THE
STATUTORY PROVISIONS
6.
Both section 10 of the 1999 Act and the appeal regime relating to
decisions made under it were replaced by changes introduced by the Immigration
Act 2014. There are complicated commencement and transitional provisions under
which the relevant provisions of the Act came into force at different dates,
depending on the circumstances, between 20 October 2014 and 6 April 2015. All
three of the section 10 appeals fall to be determined primarily by reference to
the old regime; but for reasons which will appear we will have to consider also
some aspects of the position under the 2014 Act regime (which remains in force
today).
The Pre-2014 Act
Regime
Section 10 of
the 1999 Act
7.
The version of section 10 of the 1999 Act which was in force immediately
prior to the 2014 Act read (so far as material) as follows:
“(1) A person
who is not a British citizen may be removed from the United Kingdom, in
accordance with directions given by an immigration officer, if—
(a) having only a limited leave to enter
or remain, he does not observe a condition attached to the leave or remains
beyond the time limited by the leave;
(b) he uses deception in seeking (whether successfully or not)
leave to remain;
(ba) his indefinite leave to enter or remain has been revoked
under section 76(3) of the Nationality, Immigration and Asylum
Act 2002 (person ceasing to be refugee) …; or
(c) directions have been
given for the removal, under this section, of a person to whose family he
belongs.
(2)-(7) …
(8) When a person is notified that a decision has been made to
remove him in accordance with this section, the notification invalidates any
leave to enter or remain in the United Kingdom previously given to him.”
8.
We are in these appeals concerned only with head (b) under section 10
(1) – since submitting a TOEIC test result obtained by cheating plainly constitutes
deception – but I have set out the other heads because it should be borne in
mind that the issues in these appeals do not affect the entirety of the
operation of section 10: head (a) in particular was very commonly employed
against overstayers and persons in breach of the conditions of their leave
(typically restrictions on the right to work) in circumstances that did not
involve any element of deception.
9.
The effect of a decision under section 10 was, as appears from
sub-section (8), that the subject and any dependants no longer had any leave to
remain in the UK. The absence of leave to remain has a number of consequences,
most notably that any one remaining without leave
(a) is committing
a criminal offence – see section 24 (1) (b) of the Immigration Act 1971;
(b) is
not entitled to work;
(c) (with
effect from the coming into force of Part 3 of the Immigration Act 2014) is
subject to the restrictions imposed by that Part as regards, in particular, the
right to occupy premises under a residential tenancy agreement, access to NHS
services, the right to open a current account and the right to a driving
licence.
Appeal Rights
10.
Section 82 (1) of the Nationality, Immigration and Asylum Act 2002
provided that:
“Where an immigration decision is made in respect of a person he may
appeal to the Tribunal [i.e. the First-tier Tribunal].”
“Immigration decision” is
defined in sub-section (2). It includes, at (g),
“a decision that a person is to be removed from the United Kingdom by
way of directions under section 10 (1) … (b) … of the Immigration and
Asylum Act 1999”.
11.
Section 92 of the 2002 Act regulated the question whether an appellant
was entitled to remain in the UK in order to exercise his or her right of
appeal. The basic rule stated in sub-section (1) was that “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”. The following sub-sections
identified the types of appeal to which section 92 applied. These included
some specified categories of immigration decision, which did not include
appeals against a decision taken under section 10 (1) of the 1999 Act, and
appeals arising in some other circumstances which are immaterial for our
purposes. However, sub-section (4) read (so far as material):
“This section
also applies to an appeal against an immigration decision if the appellant—
(a) has made … a human rights claim … while in the United Kingdom, or
(b) ...”
The term “human rights
claim” was defined in section 113 (1) of the 2002 Act as
“a claim made by a person to the
Secretary of State at a place designated by the Secretary of State that to
remove the person from or require him to leave the United Kingdom would be
unlawful under section 6
of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to
Convention) as being incompatible with his Convention rights”.
In R
(Nirula) v First-Tier Tribunal [2012] EWCA Civ 1436, [2013] 1 WLR 1090, Longmore LJ described the purpose of section 92 (4) as
being to provide an “orderly process” by which “the Secretary of State …
[is given] … the opportunity to give a decision on any human rights claim
before the appeal is determined so that her decision on that question can
become part of any appeal” – see para. 17 of his judgment (p. 1096 C-D).
12.
The effect of section 92 (4) was qualified by section 94 of the Act.
Sub-sections (1) and (2) read as follows:
“(1) This section applies to an
appeal under section 82(1) where the appellant has made an asylum
claim or a human rights claim (or both).
(1A) …
(2) A person may not bring an appeal
to which this section applies in reliance on section 92(4)(a) if the
Secretary of State certifies that the claim or claims mentioned in subsection
(1) is or are clearly unfounded.”
The upshot of sections 92 (4) and
94 (2) taken together was that a person in whose case a removal decision was
made under section 10 (1) could only pursue his or her appeal from inside the
UK if they had made a human rights claim and that claim had not been certified
under section 94 (2) as clearly unfounded.
13.
I should make two particular points about the operation of section 92
(4) which are relevant to the issues which I will have to consider later.
14.
The first concerns the procedural element of a human rights “claim” for
the purpose of section 113 and thus of section 92 (4). Although it appeared from
her initial correspondence that the Secretary of State’s position might be
something different, Ms Giovannetti accepted before us that in order to fall
within the terms of section 113 a “claim” does not require to be made in the
form of a fee-paid application under the Immigration Rules. She made it clear
that it is still the Secretary of State’s position that a human rights claim
ought to be made by a formal application, in the interests of orderly
decision-making, and that priority may be given to claims so made; but she
acknowledged that that was not a statutory requirement and she said that even
if a claim was made in some other form a claimant would not be removed from the
UK until it had been considered.
15.
The second concerns the point at which a human rights claim has to have
been made in order to attract the operation of section 92 (4). In the first
instance decision in Nirula [2011] EWHC 3336 (Admin) (I have referred above to the decision in this Court) Mr Mark Ockelton, sitting as a deputy High Court Judge, held
that, in order for section 92 (4) to apply, the human rights claim in question
had to have been made before the decision being appealed against was taken: see
paras. 32-38 of his judgment. In this Court it was thought unnecessary to go
further than holding that the claim had to have been made before the lodging of
the appeal to the FTT: see paras. 17-22 of the judgment of Longmore LJ (pp.
1096-7). However in Munir v Secretary of State for the Home
Department JR/4207/2015 (unreported 25.11.16) the UT followed the decision
of Mr Ockelton: see paras. 39-51 of the judgment of Judge Kekic. All parties proceeded before us on the basis that those
decisions were correct.
The 2014 Act Regime
16.
The new section 10 (1) of the 1999 Act is in wholly different terms from
its predecessor. It provides simply that:
“A person may be removed from the United
Kingdom under the authority of the Secretary of State or an immigration
officer if the person requires leave to enter or remain in the United Kingdom but does not have it.”
17.
So far as concerns rights of appeal, the new section 82 of the 2002 Act
no longer specifies categories of appealable “immigration decision”. Instead,
sub-section (1) provides that:
“A person (‘P’) may appeal to the Tribunal where—
(a) the Secretary of State has decided to refuse a
protection claim made by P,
(b) the Secretary of State has decided to refuse a
human rights claim made by P, or
(c) the Secretary of State has decided to revoke P’s
protection status.”
For present purposes we are
concerned with (b): the definition of human rights claim in section 113 (1) is
not materially altered. Those are the only appeal rights granted. There is
thus no right of appeal against a removal decision as such, but only in so far
as that decision involves the refusal of a human rights claim. I will refer to
an appeal brought under head (b) of the new section 82 (1) as a human rights
appeal.
18.
The provisions governing where a human rights appeal can be exercised
from are distributed between sections 92 and 94 of the amended 2002 Act.
Section 92 (3) provides that an appeal against the refusal of a human rights
claim must be brought from within the UK unless (so far as relevant) it has
been certified under section 94 (1), in which case it must be brought from
outside the UK. Section 94 (1) reads as follows:
“The
Secretary of State may certify a protection claim or human rights claim as
clearly unfounded.”
19.
It is important to appreciate that the role that the human rights claim
plays in determining whether an appeal may be brought in-country is quite different
under the two regimes. Under the old regime the fact that a human rights claim
has been made is the trigger which permits the appeal against the immigration
decision to be brought in-country (unless certified); but that decision remains
the subject of the appeal. Under the new regime, by contrast, the making
of a human rights claim is in itself of no significance; but if the claim is refused
the refusal generates a right of appeal, which will be in-country (again, unless
certified).
The Effect of a Finding of Deception
20.
It was common ground before us that a finding of “deception” such as was
made by the Secretary of State against the Appellants in these cases would
prejudice their chances of obtaining leave to enter in the future, if and when
they eventually left the UK, but there was initially some disagreement about
the nature and extent of the prejudice. We were taken to paragraph 320 of the
Immigration Rules, from which it is clear that the position is somewhat
nuanced. I need not set out the full details. It is sufficient to say that
where a person has previously used deception
in order (broadly) to obtain leave there will be a mandatory ban on the grant
of leave to enter or remain for a period of between one and ten years, the
length of the period depending on whether they left the UK voluntarily and at
their own expense. Even in circumstances which do not attract a mandatory ban,
leave to enter or remain will “normally” not be granted where there has been
such deception and there are aggravating circumstances. And, quite apart from
the particular provisions of paragraph 320, the fact that an applicant has used
deception will also be relevant in the assessment of the suitability criteria
prescribed in Appendix FM.
21.
More generally, it is self-evident that an official finding – albeit not
made by a court or tribunal – that a person has cheated in the way alleged in
these cases may become known to others, in which case it is likely to be a
source of shame and to injure their reputation.
(2) THE
TOEIC LITIGATION TO DATE
22.
I shall refer at a later stage to decisions in the TOEIC litigation
which directly address the issue of the availability of an in-country appeal.
But that issue does not arise in every TOEIC case. In some the substantive question
whether a person has cheated arises in the context of a challenge to a decision
other than under section 10 of the 1999 Act and has to be resolved in-country,
whether by appeal or judicial review. Some out-of-country appeals have also
been brought. There have now been a number of such cases: we were referred, I
think, to the decisions in all those which have been decided in the High Court
or in the UT, though there have been others in the FTT. It is unnecessary to
give a detailed account of what has happened in all these cases, but some of
the arguments raised before us involve reference to some of them, and I should
give a brief overview here.
23.
The evidence supplied by the Secretary of State in the substantive TOEIC
cases has developed over the course of the litigation. In the earlier cases she
sought to rely essentially on (a) generic evidence, given by two Home Office
officials, Rebecca Collings and Peter Millington, about the reports received
from ETS identifying results as “invalid” or “questionable”, and the
methodology underlying those reports; and (b) the use of an “ETS Look Up Tool”
to marry up those reports with the case of the individual appellant. These
cases were not always well-prepared, and in some the look-up tool evidence was
not provided at all, or was provided so late that it was not admitted. In more
recent cases, however, the Secretary of State has supplemented that evidence by
a report from another Home Office official, Adam Sewell, who has analysed the
test results from a number of test centres in London. On the basis of his
evidence the Home Office case now is that certain centres were “fraud
factories” and that all test results from those centres, generally or on
certain dates, are bogus. The centres in question include Elizabeth
College, which has also been the result of a criminal investigation, under the
name Project Façade.
24.
The evidence adduced by individual appellants in rebuttal will obviously
vary from case to case. At a minimum they can be expected to give evidence
that they did indeed attend the centre on the day recorded and took the spoken
English test in person. But that may be supplemented by supporting evidence of
various kinds: a frequent theme is that it is said to be demonstrable from
other evidence that their spoken English was very good and that they thus had
no motive to cheat.
25.
One other development that I should mention is that it in due course
became known that ETS has retained copies of the individual voice recordings
which it has identified as showing the use of a proxy, and that a copy can be obtained
(without charge) on application. This will allow the person concerned to listen
for themselves to check if the recorded voice is their own. If they believe it
is, they can seek confirmation from an independent expert: the Secretary of
State’s practice is to agree in such a case to the instruction of a joint
expert. However, even where the voice appears to be someone else’s that is not
necessarily accepted by applicants/appellants as conclusive. There have been
challenges to the accuracy of the system for storing and retrieving the
relevant file; and it has been argued that even if a test centre submitted a
batch of recordings made by a proxy that was done in its own interests and
without the knowledge of the person taking the test.
26.
Although there were some earlier decisions of the UT, the first to which
I need refer is the decision of McCloskey P and UTJ Saini in SM
and Qadir v Secretary of State for the Home Department [2016] UKUT 229 (IAC), which was promulgated on 31 March 2016. The Secretary of State had
cancelled the appellants’ leave to remain on the basis that they had cheated in
their TOEIC tests by the use of proxy test-takers. Those decisions attracted a
right to an appeal in-country. The appellants’ appeals failed in the FTT, but
in both cases the FTT’s decision was set aside and the decision fell to be
re-made by the UT. The UT said that the correct approach was (I paraphrase in
the interests of brevity) to consider first whether the Secretary of State’s
evidence – at that stage consisting essentially of the evidence of Ms Collings
and Mr Middleton, together with the look-up tool – established a prima facie
case that the appellant had cheated; and then, if it did, to decide whether
that case was sufficiently answered by his or her evidence. The evidence of Ms
Collings and Mr Middleton was criticised by the UT as displaying “multiple
frailties”, which left open the possibility that false positive results might
have arisen. Nevertheless it was held to be (just) sufficient to transfer the
evidential burden to the appellants to show that they had not cheated. Having
heard oral evidence from both appellants, which recounted with some
circumstantiality how they took the test and other matters relevant to their credibility,
the UT upheld both appeals. It did so partly on the basis of its assessment of
the oral evidence – that of SM requiring quite a nuanced assessment, while that
of Mr Qadir was described as “impressive in its entirety” – and partly on the
frailties of the generic evidence. At para. 102 of its judgment it
“re-emphasise[d] that every case belonging to the ETS/TOEIC stable will
inevitably be fact sensitive”.
27.
On 29 June 2016 this Court gave judgment in two cases where the FTT had
found in statutory appeals that the Secretary of State had failed to prove that
the appellants had cheated and those decisions had been upheld in the UT – Secretary
of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615. The appeal in Mr Chowdhury’s case (brought from out of country) was
allowed because the FTT had wrongly held that the Secretary of State’s evidence
did not establish a prima facie case, and the appeal was remitted for a
hearing to consider Mr Chowdhury’s evidence in answer. (The question whether
that should include oral evidence, and if so how that evidence could be given
from abroad, was not raised.) The appeal in Mr Shehzad’s case was allowed on
jurisdictional grounds, although Beatson LJ, who gave the leading judgment,
expressed doubt about whether in his case, unlike Mr Chowdhury’s, the Secretary
of State’s evidence even raised a case to answer.
28.
In the meantime the Secretary of State had appealed to this Court
against the decision in SM and Qadir. On the eve of the hearing she
sought to withdraw both appeals. The Court insisted on the hearing proceeding:
see Majumder and Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167 (25 October 2016). The judgment of Beatson LJ gives a very
helpful account of the state of the litigation at that date but I need not
summarise it here. I need note only two points:
(1) He
endorsed the UT’s observation that every TOEIC case was fact-sensitive: see
para. 27.
(2) He
noted that the Secretary of State was in more recent cases seeking to add to
and improve the quality of her generic evidence, and that one such case (MA
– see below) had already been decided in the UT: see para. 28.
29.
On 16 September 2016 the UT (McCloskey P and UTJ Rintoul) promulgated its
judgment in MA v Secretary of State for the Home Department [2016] UKUT 450 (IAC). This was another statutory appeal where the decision of the
FTT was set aside and fell to be re-made by the UT. The available evidence was
fuller than in SM and Qadir. In particular, what was said by ETS to be the
voice-file recording the test as taken by the appellant had been obtained, and
it was agreed that the voice on it was not his. However, he challenged whether
that file was indeed a recording of the test that he had taken, and there was
evidence from no fewer than three experts exploring how the wrong file might
have been supplied. The UT acknowledged (para. 47) that there were “enduring
unanswered questions and uncertainties relating in particular to systems,
processes and procedures concerning the TOEIC testing, the subsequent
allocation of scores and the later conduct and activities of ETS”. Accordingly,
much still turned on the UT’s assessment of the appellant’s oral evidence. It found
that evidence to be a fabrication and dismissed the appeal. It again
emphasised, to quote from the judicially-drafted headnote, that “the question
of whether a person engaged in fraud in procuring a TOEIC English language
proficiency qualification will invariably be intrinsically fact sensitive”. (I
should also note, because Ms Giovannetti attached particular importance to the
point, that in response to MA’s argument that his English was so good that he
had no need to use a proxy the Tribunal observed that there were many reasons why
persons whose English was good might nevertheless use a proxy: see para. 57 of
its judgment.)
30.
Two judicial review applications in TOEIC cases were heard by the UT
along with MA – Mohibullah v Secretary of State for the Home
Department [2016] UKUT 561 (IAC) and Saha v Secretary of State
for the Home Department [2017] UKUT 17 (IAC) – but in both cases judgment
was not given till later: in Mohibullah on 12 October 2016 and in Saha
on 26 December 2016. Neither case required a decision on the substantive issue
whether the applicant had cheated. However, in Saha the Secretary of
State applied, after the conclusion of the main hearing, to adduce the evidence
of Mr Sewell, and the application was granted on the basis that he attend a further
hearing. Unfortunately at that hearing the appellants were unrepresented and
Mr Sewell was not cross-examined. The Tribunal said, however, that it accepted
his essential conclusion that none of the results from the sessions in which Mr
Saha claimed to have taken his test could be considered genuine: see paras.
58-59.
31.
We were referred to three first-instance decisions this year in judicial
review proceedings, two in the High Court and one in the UT, in which the issue
of whether the claimant/applicant had cheated was treated as a matter of
precedent fact on which the lawfulness of the decision challenged turned and
which accordingly had to be decided. In the first – Iqbal
v Secretary of State for the Home Department [2017] EWHC 79 (Admin) – the
claimant succeeded, on the basis that the Secretary of State had, on the
evidence adduced, failed to show even a prima facie case. In the second
– R (Abbas) v Secretary of State for the Home Department [2017] EWHC 78 (Admin), [2017] 4 WLR 34 – William Davis J regarded the Secretary of
State’s evidence as sufficient to require an answer and found the claimant’s
oral evidence, on which he had been extensively cross-examined, to be “wholly
unconvincing and at some points demonstrably false” – see para. 18. Accordingly
he upheld the Secretary of State’s case that the claimant had cheated. In the
third – Habib v Secretary of State for the Home Department,
promulgated on 22 March 2017 – the impugned test was
taken at Elizabeth College, and the Secretary of State relied in particular on
the Project Façade report and on Mr Sewell’s report. It was common ground that
the evidence raised a case to answer and UTJ Gleeson found that the applicant’s
oral evidence, which was riddled with implausibilities, was insufficient to
shift the burden on him.
32.
We were also referred to two recent decisions of UTJ Freeman in TOEIC
cases – Kaur v Secretary of State for the Home Department and Nawaz
v Secretary of State for the Home Department [2017] UKUT 00288 (IAC)
– but these were cases in which the issue was not whether the applicants had in
fact cheated but whether the Secretary of State’s belief that they had was
rational, and I need not prolong this judgment further by summarising the
reasoning in them.
33.
Ms Giovannetti was concerned to emphasise the extent to which the
forensic landscape had changed since the Secretary of State’s initial, and
frankly stumbling, steps in this litigation. The observations of the UT in SM
and Qadir should not be regarded as the last word. Where the impugned test
was taken at an established fraud factory such as Elizabeth College,
and also where the voice-file does not record the applicant’s voice (or no
attempt has been made to obtain it), the case that he or she cheated will be hard
to resist. We were not ourselves taken to any of the underlying evidence, but
I am willing to accept that that appears to be a reasonable summary of the
effect of the recent decisions to which we were referred. However, I am not prepared
to accept – and I do not in fact understand Ms Giovannetti to have been
contending – that even in such specially strong cases the observations in the
earlier case-law to the effect that a decision whether the applicant or
appellant has cheated is fact-specific are no longer applicable or that there
is no prospect of their oral evidence affecting the outcome.
A. THE
SECTION 10 CASES
34.
I will begin by setting out the case-law which gives rise to the issues
in these three appeals – under head (1) the line of authorities which deals
with the availability of judicial review in section 10 cases; and then, under
head (2), Kiarie and Byndloss. I will then set out the facts and
procedural histories of the three cases – head (3) – before proceeding to
consider, under heads (4)-(7), the issues themselves.
(1) JUDICIAL REVIEW AND APPEALS: THE PREVIOUS CASE-LAW
35.
It is trite law that judicial review is a remedy of last resort and that
claimants will not normally be allowed to pursue it where an adequate alternative
remedy is available. That principle has been applied in several cases in this
Court in the context of attempts to seek judicial review of decisions under
section 10 of the 1999 Act by claimants who object to having to leave the
country in order to pursue an appeal.
36.
The starting-point is Secretary of State for the Home
Department v Lim [2007] EWCA Civ 773, which concerned the proposed
administrative removal of a claimant who was alleged to have been found working
in breach of a condition of his leave. At first instance Lloyd-Jones J granted
him permission to challenge that decision by way of judicial review – [2006]
EWHC 3004 (Admin). He held that the statutory right of appeal did not
constitute an adequate alternative remedy because “an out-of-country appeal in
which Mr Lim was unable to participate by giving evidence in person would not
provide him with a fair hearing” (para. 47): in that connection he noted (para.
48) that it was “far from clear” whether he would be able to give evidence by
video-link. Overall, such an appeal would not provide him with “fair, adequate
or proportionate protection against the risk that the immigration officer had
acted without jurisdiction” (para. 50).
37.
This Court reversed that decision. The claimant submitted that the
issue of whether he was in breach constituted a question of precedent fact which
could properly be decided in the High Court, notwithstanding the
existence of an appeal mechanism, in accordance with the decision of the
House of Lords in Khawaja v Home Secretary [1984] 1 AC 74. Sedley LJ, who delivered the
leading judgment, accepted that a finding of breach was a precedent fact, but
he held that it did not follow that “everything
which s. 10 lays down as making removal permissible is justiciable without
regard to the s. 84 appeal mechanism”. He said, at para. 21 of his judgment,
that it was impossible to take that approach “without
disregarding the manifest purpose of s. 82 of the 2002 Act, since the effect
would be that the right of appeal had effect only where the individual
concerned chose not to raise his or her challenge by way of judicial review”. He
continued:
“22. The only coherent solution, it
seems to me, is to continue to regard every question arising under s.10 as in
principle both appealable and reviewable …, but to calibrate the use of
judicial review, through the exercise of judicial discretion, to the nature of
the issue or issues. In this way – and, so far as I can see, in no other way –
the High Court can remain loyal to what was decided in Khawaja by
consistently retaining jurisdiction to determine the existence of preconditions
of liability to removal, as well as other questions of law apt for the High
Court's determination, but can also respect the policy of s.82 by declining to
entertain challenges on issues more apt for the appeal mechanism, whatever its
hardships.
23. …
24. This argument depends upon the
well-established principle, not confined to the immigration field, to which I
referred earlier in this judgment: that where a statutory channel of appeal
exists, in the absence of special or exceptional factors the High Court will
refuse in the exercise of its discretion to entertain an application for
judicial review. …”
The earlier passage referred to at
para. 24 is para. 13, where he had said:
“It is well established, as the judge reminded himself,
that judicial review is a remedy of last resort, so that where a suitable
statutory appeal is available the court will exercise its discretion in all but
exceptional cases by declining to entertain an application for judicial review:
see R v IRC ex parte Preston [1985] AC 835, R v Chief Constable of the Merseyside Police, ex
parte Calveley [1986] 1 QB 424, R v Home Secretary, ex p Swati [1986]
1 WLR 477, R (Sivasubramanian) v Wandsworth County Court [2003]
2 WLR 475.”
Applying that approach, Sedley LJ
held that nothing in the reasons given by Lloyd-Jones J was sufficient to
support his conclusion that the case was exceptional: this was “precisely the
kind of issue for which the legislation, for better or for worse, prescribed an
out-of-country appeal” (see para. 27).
38.
Lim was followed in this Court in R (RK (Nepal)) v Secretary
of State for the Home Department [2009] EWCA Civ 359 and R (Anwar)
v Secretary of State for the Home Department [2010] EWCA Civ 1279,
[2011] 1 WLR 2552. In RK (Nepal) Aikens LJ summarised the effect of
what was decided in Lim as follows (para. 33):
“The importance of
that decision lies in its emphasis on the appeal structure that Parliament has
laid down in the 2002 Act with respect to various types
of ‘immigration decision’. The courts must respect that framework, which is not
open to challenge in the courts by way of judicial review unless there are ‘special
or exceptional factors’ at play. Therefore, except when such ‘special or
exceptional factors’ can successfully be invoked so as to give rise to a
right to judicial review, the court must accept that an out of country right of
appeal is regarded by Parliament as an adequate safeguard for those who are
removed under section 10 of the 1999 Act.”
39.
I should also refer to the judgment of Green J in R (Khan) v
Secretary of State for the Home Department [2014] EWHC 2494 (Admin), [2016] 1 WLR 747, since the Appellants attached some importance to a particular
passage in it. This was another case in which judicial review of a section 10
decision (based on alleged breach of a condition of leave to enter) was refused
on the basis that the claimant’s right of (out-of-country) appeal constituted an
adequate alternative remedy. At para. 70 of his judgment (pp. 771-2) Green J
summarised the relevant principles in line with the earlier case-law. Under
head (x) (p. 772 C-D) he said:
“The mere fact that Parliament has
chosen to introduce an appellate procedure which can operate harshly, for
example in relation to out-of-country appeals, is not in itself a special or
exceptional reason for the High Court to assume jurisdiction. Were it otherwise
the system of out-of-country appeals would be rendered toothless given that in
many cases the out-of-country procedure operates to the disadvantage of the
appellant. If this were a factor militating in favour of judicial review that
would serve to trigger a judicial review in the vast majority (if not all)
section 10 cases (Lim; RK (Nepal); Jan [[2014] UKUT 265 (IAC)]). The same applies where the
High Court takes the view that it is more effective and convenient for it to
hear the case; this is however not a good reason to assume jurisdiction (Willford
[[2013] EWCA Civ 674]).”
He went on to gloss that summary at
para. 77 of his judgment, but it will be more convenient if I set that out
later (see para. 81 below).
40.
There are two recent decisions in which the Lim approach has been
applied specifically in the case of persons accused of cheating in their TOEIC
tests.
41.
The first is R (Ali) v Secretary of State for the Home Department
[2015] EWCA Civ 744, [2016] 1 WLR 461, which was decided with another case, R
(Mehmood) v Secretary of State for the Home Department, and is more often
referred to under that name. Beatson LJ, who gave
the leading judgment, referred to the Lim line of cases and extracted
three propositions. I need only quote the first two (p. 476 B-E):
“51. … First, except where
there are ‘special or exceptional factors’, ‘the court must accept that an out
of country appeal is regarded by Parliament as an adequate safeguard for those
who are removed under section 10 of the 1999 Act’: RK (Nepal) at
[33] per Aikens LJ.
52. Secondly, the existence
of disputes of fact are rarely likely to constitute ‘special or exceptional
factors’. This is because, as Sedley LJ stated in Lim's case
(at [25]), ‘were it otherwise, the courts would be emptying Parliament's prescribed
procedure of content’, and also because judicial review proceedings are not
best suited to resolve such issues, even if they sometimes have to be used for
them, for example in ‘jurisdictional fact’ cases where the court has to
determine the merits and not just exercise a traditional public law reviewing
function: see [Khawaja] … .
Accordingly, the default position for disputes as to whether there has been a
breach of the conditions of leave or deception has been used in connection with
an application for leave will, absent such special or exceptional factors, be
an out-of-country appeal. ....”
It followed that the fact that
there was in Mr Ali’s case a dispute as to whether he had in fact cheated in
his TOEIC test could not by itself constitute a special or exceptional reason
why an out-of-country appeal should not be treated as an adequate alternative
remedy. Beatson LJ went on to consider certain particular matters relied on by
counsel for Mr Ali (in fact, Mr Malik) as constituting special or exceptional
reasons in his case, but I need not set them out since none is directly relied
on here. At para. 71 (p. 480 B-D) he accepted that having to leave the country
halfway through his course would cause Mr Ali inconvenience and expense, but he
said that that in itself could not constitute a special or exceptional reason
since it was inherent in the statutory scheme.
42.
The second such decision is R (Sood)
v Secretary of State for the Home Department [2015] EWCA Civ 831, which was
heard the day after the decision in Mehmood and Ali was handed down. That
decision was of course treated as authoritative as regards the overall
approach. Beatson LJ, who delivered the leading judgment, again held that the
particular reasons relied on by the appellant in that case did not constitute
special or exceptional factors. However, counsel did make some general
submissions by reference to the importance of maintaining the rule of law. In
response to those Beatson LJ said, at para. 44:
“Beyond the cases of
jurisdictional fact mentioned in Mehmood and Ali's case at [52] and
(something I hope would never occur) the abusive manipulation of the system by
the Secretary of State or her officials, I consider that it is undesirable to
seek to define a category of ‘special’ or ‘exceptional’. It would, in my
judgment, only be where there is compelling evidence that, in the circumstances
of a particular case, the issues could not properly or fairly be ventilated in
an ‘out of country’ appeal, that it might be possible to argue that the
circumstances are special or exceptional.”
43.
I should also mention the decision of this Court in R (Giri) v
Secretary of State for the Home Department [2015] EWCA Civ 784, [2016] 1 WLR 4418, which was also decided very soon after Mehmood and Ali, and by
a constitution which included Beatson LJ. The appellant had been refused leave
to remain on the basis that he had used deception in an earlier application for
entry clearance, and the court at first instance made its own finding on that
issue. This Court held that it had been wrong to do so. The grant or refusal
of leave to remain was a matter for the discretion of the Secretary of State
under section 3 of the Immigration Act 1971 and could only be reviewed on grounds
of irrationality. Having reached that conclusion, Richards LJ continued, at
para. 20 of his judgment (p. 4426 B-D):
“The position would be
different if we were concerned not with the exercise of the power under section
3 of the 1971 Act to grant leave to remain but with a decision to remove a
person under section 10 of the 1999 Act on the ground that he or she had used
deception in seeking leave to remain … . In that event, as a matter of
statutory construction, the very existence of the power to remove would depend
on deception having been used; and in judicial review proceedings challenging
the decision to remove, the question whether deception had been used would be a
precedent fact for determination by the court in accordance with Khawaja.
Miss Giovannetti QC, on behalf of the Secretary of State, accepted as much. In
practice, however, the issue will rarely arise in that form, because decisions
under section 10 are immigration decisions carrying a right of appeal to the
tribunal, which can review for itself the facts on which the decision under
appeal was based, and the existence of that alternative remedy means that
judicial review is not available in the absence of special or exceptional
factors: see, most recently, the decision of this court in [Mehmood and
Ali].”
(2) KIARIE
AND BYNDLOSS
44.
Although Kiarie and Byndloss is relied on by the Appellants
because it concerns the effectiveness of out-of-country appeals, that issue arose
in a different context from that of the Lim line of authorities, to
which indeed the Supreme Court was not referred. Under the pre-2014 Act regime,
which was applicable in both cases, a person who was subject to a deportation
order had a right of appeal to the First-tier Tribunal. As with appeals
against decisions taken under section 10, such an appeal had to be brought
while the appellant was out of the country, unless they had made a human rights
claim. However, by section 94B of the 2002 Act, even where a human rights
claim had been made the Secretary of State had power to certify that removal
pending the outcome of an appeal would not be in breach of the human rights of
the person subject to the order; and if she did so the appeal could only be
brought from outside the UK. The Secretary of State made certificates under
section 94B in the cases of both appellants, who were facing deportation to Kenya
and Jamaica respectively. The appellants challenged the certificates by way of
judicial review. Permission was refused by the UT in both cases. In this
Court permission was granted but the substantive claims were dismissed.
45.
The Supreme Court allowed the appeals and quashed both certificates.
The ratio of the majority appears in the judgment of Lord Wilson. The
details of much of the reasoning are not material for our purposes, and it is
unnecessary that I quote extensively from his judgment. The essential steps
can be summarised as follows:
(1) The appellants’
proposed deportation gave rise to a potential breach of their rights under
article 8 of the European Convention on Human Rights.
(2) They
were entitled, as an aspect of article 8 itself, to an effective procedure for
appealing against that threatened breach.
(3) The Secretary
of State had failed to show that an out-of-country appeal allowed for an
effective challenge to the deportation decision. Various problems about
pursuing an appeal against deportation from outside the UK
were discussed, but what was decisive in Lord Wilson’s view was:
(a) that
the nature of the issues was such that the appellants would need to give oral
evidence – see para. 61 (p. 2401 C-G); and
(b) that,
although in principle it might be acceptable for such evidence to be given
remotely by video-link, the evidence showed that “the
financial and logistical barriers [to the appellants being able to do so] were almost
insurmountable” – see para. 76 (p. 2406 F-G).
I should say a little more about
Lord Wilson’s reasoning on the third element.
46.
As to (a), at para. 61 Lord Wilson discussed the nature of the issues on
which foreign criminals were likely to need to give evidence in a deportation appeal.
One was whether they had in truth changed their ways. The other was the
quality of their relationships with family members in the UK.
It was Lord Wilson’s view that on both those issues the appellant’s own oral
evidence was likely to be essential. In connection with the former he made the
point that oral evidence was all the more likely to be necessary in view of the
fact that an appellant’s claim to have become a reformed character was likely to
be met with “a healthy scepticism”: see p. 2401 D-E.
47.
As to (b), I should note by way of preliminary that at para. 67 Lord
Wilson had expressed some doubts as to the satisfactoriness of giving evidence
by video-link at all and that in that connection he quoted with approval a
passage from the judgment of the UT in Mohibullah (see para. 30 above), in
which the issue is discussed; that was notwithstanding the Secretary of State’s
objection that the context in that case was different because it involved
“issues relating to deception” (p. 2403F). In the end, however, he was willing
to proceed on the basis that, while taking evidence by video-link was sub-optimal,
“it might well be enough to render
the appeal effective for the purposes of article 8, provided only that the
appellant’s opportunity to give evidence in that way was realistically
available to him”
(p. 2403G).
48.
As to whether such an opportunity was realistically available in the
case of either appellant, Lord Wilson’s conclusion that it was not was reached on
the basis of materials lodged both by them and by the charity Bail for
Immigration Detainees (“BID”) about the financial and logistical obstacles to
making effective arrangements. These obstacles partly consisted in the cost of
hiring video-link facilities in Kenya and Jamaica, but the evidence was that arrangements
at the UK end were also problematic: the tribunal service itself did not have video-link
facilities in a form appropriate to a public hearing, and its
position was that the full responsibility for making and paying for the
necessary arrangements had to be borne by the appellant. Realistically neither
of the appellants would be able to overcome those obstacles. For them to be
removed in circumstances where they had no effective right of appeal did not strike
a fair balance between their interests and those of the community as required
by article 8. Lord Wilson observed that, while the appellants had proved that
that was the case, the burden of justifying an interference with article 8
rights was on the Secretary of State and accordingly the proper analysis was
that she had failed to establish that the balance was fair: see para. 78 (p.
2407 D-E).
49.
It is important to note that in Kiarie and Byndloss the Secretary
of State had not certified the human rights claims themselves under section 94
(2), and the case proceeded on the basis that the substantive appeals were
arguable. Lord Wilson emphasised that this fact was an essential basis for his
reasoning: see paras. 35 (p. 2393 F-G) and 54 (p. 2399 A-B).
(3) THE
INDIVIDUAL CASES: FACTS AND PROCEDURAL HISTORIES
50.
I can summarise the facts and procedural histories of the individual
cases fairly shortly. It will be necessary to address some particular features
of the individual cases in more detail at a later stage.
Harwinder Kaur
51.
HK is aged 38. She came to this country in September 2009 on a student
visa. Her husband accompanied her as her dependant. They have since had a son
and daughter, in 2009 and 2013 respectively.
52.
On 9 September 2013 HK applied for further leave to remain in order to
continue her studies. She submitted to her sponsoring college a TOEIC
certificate purporting to show that she passed the ETS test at Elizabeth
College on 18 September 2012. She was granted leave up to 31 July 2015.
53.
On 6 August 2014 the Secretary of State wrote to HK notifying her of the
decision to remove her under section 10. On 17 September an amended decision
was served. The letter began:
“It has come to the attention of the
Home Office, from information provided by Educational Testing Service (ETS)
that an anomaly with your speaking test indicated the presence of a proxy test
taker.
In light of this information it is
the considered opinion of the Home Office that you have utilised deception to
gain leave to remain in the United Kingdom. You have therefore been served with
the attached Immigration Enforcement Papers; these papers inform you of the
reasons as to why you are considered an immigration offender, along with your
liability for detention and removal.”
The “attached Immigration
Enforcement Papers” consist of a “Notice to a Person Liable to Removal” (form IS.151A),
stating that the author is satisfied that HK is a person to whom removal
directions may be given in accordance with section 10 of the 1999 Act. It
incorporates a “Specific Statement of Reasons” as follows:
“You are
specifically considered a person who has sought leave to remain in the United Kingdom by deception. For the purposes of your application dated 9 September 2013,
you submitted a certificate from Educational Testing Service (“ETS”) to your
sponsor in order for them to provide you with a Confirmation of Acceptance for
Studies.
ETS has a
record of your speaking test. Using voice verification software, ETS is able to
detect when a single person is undertaking multiple tests. ETS undertook a
check of your test and confirmed to the SSHD that there was significant
evidence to conclude that your certificate was fraudulently obtained by the use
of a proxy test taker. Your scores from the test taken on 18 September 2012 at Elizabeth
College have now been cancelled by ETS.
On the basis
of the information provided to her by ETS, the SSHD is satisfied that there is
substantial evidence to conclude that your certificate was fraudulently
obtained.”
54.
HK and her husband and children issued proceedings in the UT on 26
September 2014 seeking judicial review of the amended decision. Permission was
initially refused on the papers by UTJ Kebede and subsequently by UTJ Kekic at
a hearing on 29 April 2016, essentially on the basis that Mehmood and Ali
established that an out-of-country appeal was an appropriate alternative remedy.
55.
On 19 October 2016 HK and her family made a further application for
leave to remain, relying among other things on the effect of removal on her and
their private and family life. The application was rejected on the basis that
no fee had been paid.
56.
Permission to appeal to this Court was given by Sir Stephen Silber on 11
July 2017 “in the light of the decision of the Supreme Court in Kiarie and
Byndloss”. Permission to amend the grounds of appeal was given by
Hickinbottom LJ on 3 August and by Hamblen LJ on 14 August.
Rajwant Kaur
57.
RK is aged 37. She came to this country in August 2007 on a student
visa. Her husband joined her in June 2011, and they have since had two
children, born in 2012 and 2015 respectively. She applied for further leave to
remain on 11 January 2012 in order to continue her studies. The application
was refused. She appealed to the FTT and in February 2013 her appeal was
allowed. Although she succeeded on the basis that the refusal was not in
accordance with the Immigration Rules, she had also advanced an alternative argument
under article 8 of the ECHR, and in that connection the FTT found in terms that
both she and her husband had developed “a degree of private life whilst in the
UK” and that removing them before RK had completed her studies would interfere
with their article 8 rights.
58.
On 21 September 2012 RK submitted an application for further leave to
remain. In order to obtain the necessary confirmation of acceptance for
studies (“CAS”) for the purpose of that application she submitted a TOEIC
certificate purporting to show that she passed the ETS test at South
Quay College in London on 29 August. The application was granted.
59.
In June 2013 the licence of the college where RK was then studying was
revoked and in August her fresh application based on a CAS from a different
college was refused. She again appealed to the FTT, relying inter alia
on her rights under article 8. By a determination promulgated on 12 August
2014 her appeal was allowed, though on a basis that did not require
consideration of the article 8 claim.
60.
On 30 September 2014 the Secretary of State wrote to RK notifying her of
the decision to remove her. The letter and form IS.151A are in the same terms,
mutatis mutandis, as in HK’s case.
61.
RK issued proceedings in the UT on 12 December 2014 seeking judicial
review of the decision of 30 September 2014. Permission was refused by UTJ
McGeachy on the papers on 15 January 2016. Although one or two other points
are mentioned in his reasons, the essential basis of his decision was that in
the light of Mehmood and Ali permission ought not to be given to apply for
judicial review because she had a statutory right of appeal.
62.
Permission to appeal to this Court was given by Sir Stephen Silber on 10
July 2017 in the same terms as in HK’s case.
Ataullah Faruk
63.
AF is aged 34. He came to this country in February 2006 on a student
visa. On 31 October 2011 he applied for further leave to remain to complete his
studies. He submitted to his sponsoring college a TOEIC certificate purporting
to show that he passed the ETS test at Elizabeth College on 16 November 2011.
The application was successful. He completed a degree in Business Studies at
the University of Greenwich.
64.
Following the completion of his studies he was granted further leave to
remain as a post-study migrant and took up employment as a producer with a
television station catering for the Bangladeshi community in Europe. He
subsequently became host of a popular television talk-show broadcast by NTV. He
describes himself as a human rights activist and says that he works for Amnesty
International “as a press monitor and Administrative Officer” Prior to the
expiry of his visa he applied for indefinite leave to remain, but no decision
had been reached on that application at the time that the Secretary of State
made her decision under section 10.
65.
On 21 March 2015 the Secretary of State wrote to AF notifying him of the
decision to remove him under section 10. We do not have a copy of the letter
but it can be assumed that it was in the same terms as the letter to HK which I
have quoted above. We do have the form IS.151A, which is likewise in identical
terms, mutatis mutandis, to HK’s.
66.
AF issued proceedings in the UT on 8 May 2015 seeking judicial review of
the decision of 21 March 2015. Permission was refused by DUTJ Pitt on the
papers on 5 April 2016, both on the basis that the Secretary of State’s
decision that AF had used deception was Wednesbury-reasonable and on the
basis that in any event following Mehmood and Ali permission ought not
to be given to apply for judicial review because he had a statutory right of
appeal.
67.
Permission to appeal to this Court was given by Sir Stephen Silber on 11
July 2017 on the basis of two particular features of AF’s case which he
regarded as arguably “special and exceptional”: it is more convenient that I explain
these later (see paras. 130-2 below).
68.
In the meantime, in January 2016 AF made a claim for indefinite leave to
remain on the basis that he had been resident in this country for ten years.
The claim was made both under the Immigration Rules and on the basis of article
8 of the Convention. It was refused by the Secretary of State on 5 August 2016
on the basis that he had cheated in his TOEIC test. The human rights claim was
certified under section 94 (2), with the result that he is entitled only to an
out-of-country appeal. He has issued judicial review proceedings challenging
the certification, but they have been stayed pending the outcome of these
proceedings.
(4) THE SHAPE
OF THE ISSUES
69.
The Appellants’ case before us was, in essence, that their claims should
be allowed to proceed by way of judicial review, notwithstanding their
entitlement to a statutory (out-of-country) appeal, because they turned on a disputed
question of (precedent) fact on which it was necessary in the interests of
justice that they be able to give oral evidence, and that they would not be
able to do so in an appeal from outside the country. They contended that the
denial of an effective hearing in that way was contrary to their rights both at
common law and under article 8 of the Convention.
70.
The Secretary of State’s initial response, as set out in Ms
Giovannetti’s skeleton argument, was focused on rebutting the various elements
in that case. But she subsequently put forward an alternative answer, namely
that, even if an out-of-country appeal did not constitute an adequate
alternative remedy, it had at all times been, and remained, within the power of
the Appellants to make a human rights claim, as a result of which they would
become entitled to an in-country appeal: an appropriate alternative
remedy was accordingly within their grasp and they should not have permission
to proceed by way of judicial review. This way of putting the case first emerged
in correspondence from the Treasury Solicitor but was then developed in Ms
Giovannetti’s “Reply and Position Statement”, which was submitted shortly
before the hearing and subsequent to the lodging of the Appellants’ skeleton
arguments. The late stage at which it emerged was unfortunate. It means not
only that we do not have the benefit of fully developed skeleton arguments but
also that not all aspects of the point were fully explored in oral submissions.
71.
I will consider first the Appellants’ case based on the ineffectiveness
of an out-of-country appeal – “the out-of-country appeal issue” – and then the
Secretary of State’s case based on their right to make a human rights claim the
refusal of which would attract the right to an in-country appeal – “the human
rights claim issue”.
(5) THE
OUT-OF-COUNTRY APPEAL ISSUE
The Appellants’
Case
Article 8
72.
As noted above, the Appellants advanced their case both at common law
and by reference to article 8 of the Convention. Mr Biggs submitted that the former
was the right starting-point in principle, since it was unnecessary to resort
to the Convention if the rights in question were afforded at common law: he
reminded us of the observations of Lord Neuberger in R (Osborn) v Parole
Board [2013] UKSC 61, [2014] AC 1115, at para. 63 (p. 1148 D-E). I have
considerable sympathy with that approach, but the particular way in which the
case-law has developed in this area makes it, I think, more convenient to start
with article 8, and that was the course taken by Mr Knafler, who took the lead
for the Appellants.
73.
Mr Knafler’s starting-point was that the rights of HK and her husband
and children to respect for their private and/or family life would be
sufficiently seriously interfered with by their removal to engage the operation
of article 8 – i.e. that “Razgar questions (1) and (2)” were satisfied
(see R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, per Lord Bingham at para. 17 (p. 389 D-F)).
74.
Mr Knafler’s primary submission in support of that contention was that
article 8 was likely to be engaged in pretty well any case of a student who, as
in HK’s case, has resided and studied lawfully in the UK
for a substantial period at his or her own expense. In his skeleton argument
he referred to a large number of decisions of the AIT and UT about the article
8 rights of students, but in his oral submissions he relied in particular on two.
The first was the decision of the Asylum and Immigration Tribunal (SIJ Grubb
and IJ Hall) in MM v Secretary of State for the Home Department
[2009] UKUT 305 (IAC). The Tribunal in that case carried out a thorough review
of the then case-law and concluded, to quote from the (judicially-drafted)
headnote:
“Whilst respect for 'private life'
in Art 8 does not include a right to work or study per se, social ties
and relationships (depending upon their duration and richness) formed during
periods of study or work are capable of constituting 'private life' for
the purposes of Art 8.”
The second was the decision of the
Upper Tribunal (Blake J, Ockelton V-P and SIJ Allen) in CDS (Brazil) v Secretary of State for the Home Department [2010] UKUT 305 (IAC). At
para. 19 of its judgment the Tribunal said:
“… people who have been admitted on
a course of study at a recognised UK institution for higher education
are likely to build up a relevant connection with the course, the institution,
an educational sequence for the ultimate professional qualification sought, as
well as social ties during the period of study. Cumulatively this may amount to
private life that deserves respect because the person has been admitted for
this purpose, the purpose remains unfilled, and discretionary factors such as
misrepresentation or criminal conduct have not provided grounds for refusal of
extension or curtailment of stay.”
75.
Mr Knafler made it clear, however, that he did not need to rely on any
general proposition about the position of students, on which he acknowledged
that the authorities showed “some hesitation”. He said that he could in any
event rely on a number of particular features of HK’s case. She and her
husband had been in the country for five years at the date of the Secretary of
State’s decision. They have relatives settled in the UK,
who live near to them and with whom they have a close relationship. Their two
children, who were born here and have never been to India, are now attending
school and have their own relationships with friends and cousins. These
factors were developed to some extent in HK’s witness statement and in a report
from a child psychologist, but I need not give further details.
76.
If, therefore, article 8 would indeed be engaged by HK’s removal, it was
necessary to consider the remaining Razgar questions – whether her
removal would be in accordance with the law (question (3)) and, if so, whether
it was (for short) justified (questions (4)-(5)). In practice the answer to those
questions depended straightforwardly on whether she had cheated in her TOEIC
test. If she had not, it was not suggested that there was any legitimate basis
for removing her. Mr Knafler emphasised that we were not in this kind of case concerned
with the familiar balancing exercise of weighing the state’s interest in
maintaining an orderly system of immigration control against the interests of
the individuals in question: HK was entitled by the Rules to be here unless she
had cheated.
77.
The only question being whether HK had cheated, it was confirmed by Kiarie
and Byndloss that article 8 in its procedural aspect required that a fair
procedure for the determination of that question be available to the Appellants.
As to whether such a procedure was available, Mr Knafler’s case can be
summarised as follows:
(1) The
nature of the issues in a typical TOEIC appeal, and certainly in these cases,
was such that it was as essential that the tribunal hear the oral evidence of
the appellant as it was in the case of the deportation appeals which were the
subject of Kiarie and Byndloss, albeit for different reasons. Mr
Knafler referred to the TOEIC cases which have already been decided, as
summarised above, and pointed out how central the oral evidence of the person
accused of cheating had been in all of them.
(2) That
being so, there could only be a fair hearing of HK’s appeal from India if she and
her husband would have access there to reliable and affordable arrangements for
giving evidence by video-link.
The Appellants relied on the evidence from BID which had been before the
Supreme Court in Kiarie and Byndloss, supplemented by some rather
miscellaneous further evidence prepared for the purpose of these appeals.
There was a witness statement from Sairah Javed, now of the Joint Council for
the Welfare of Immigrants but who was formerly in practice as a solicitor: this
dealt principally with the difficulties which she had encountered in one particular
case in trying to arrange for a client to give evidence by video-link from
Pakistan, but she also gave some general evidence, not specific to any
particular country, to a similar effect to the conclusions of the Supreme Court
in Kiarie and Byndloss. AF’s solicitor, Ms Urvi Shah, gave
similarly general evidence. There were also witness statements from lawyers in
Pakistan and India confirming that video-link facilities would not be
available through the court systems of either country.
78.
It followed, Mr Knafler submitted, that the supposed alternative remedy
which had led the UT to refuse permission in HK’s case was inadequate and that
accordingly her application for judicial review should have been allowed to
proceed. It was well established that where necessary questions of primary
fact could be determined, and oral evidence heard, in judicial review
proceedings: Lord Wilson made that very point at para. 42 of his judgment in Kiarie
and Byndloss (p. 2395 D-E). The question whether an applicant had cheated
in their TOEIC test had indeed already been decided in judicial review claims
where the issue had fallen to be decided as a question of precedent fact and
where the statute provided for no right of appeal – see para. 31 above.
79.
As regards RK and AF, Mr Biggs and Mr Malik submitted that article 8 was
engaged equally in their cases as in HK’s, and that the fair determination of
the question whether they had cheated would likewise require them to give oral
evidence, which they would be unable realistically to do so by video-link from,
respectively, Pakistan or Bangladesh. I summarise their submissions in turn.
(1) As
to RK, Mr Biggs pointed out that she already had the benefit of a finding from
the FTT in early 2013 that the removal of her and her husband before she had
completed her studies would interfere with their article 8 rights. Her case in
that regard could only be stronger by the time of the Secretary of State’s
decision a year and a half later, not least because she had by then had a
child. In her case she was able to rely on the specific evidence adduced about
the difficulties of pursuing an appeal by video-link from Pakistan.
(2) As
to AF, he had been in the UK for over nine years at the date of the Secretary
of State’s decision. Unlike the other two section 10 Appellants he has
completed his studies and embarked on a successful career in this country. It
was plain beyond argument that his article 8 rights were engaged. Mr Malik did
not rely on any specific evidence about the difficulties that might face AF in
pursuing an appeal from Bangladesh but he relied on the general evidence from
Ms Javid.
Common Law
80.
Although it was, again, Mr Knafler who led on the common law challenge,
Mr Biggs also addressed us on it fully. There were some differences of
emphasis in their submissions, but I can deal with them as a composite. They
essentially depended on the same proposition as the article 8 case, namely that
in circumstances such as those of the Appellants the requirement that the right
of appeal conferred by section 82 of the 2002 Act be exercised from abroad
meant that a fair and effective appeal was simply not available: that was what
the Supreme Court had found in Kiarie and Byndloss, and the evidence in
the present case was to the same effect. They submitted that such a state of
affairs was in plain conflict with the fundamental constitutional right of
access to the courts most recently re-affirmed by the Supreme Court in R
(Unison) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409: we were
referred in particular to paras. 66-75 of the judgment of Lord Reed (pp. 431-4).
81.
The question then was how that right of access to the courts could be
vindicated in cases like the present. Mr Knafler and Mr Biggs acknowledged
that it could not be by permitting an appeal to be pursued from within the UK,
since (in a case of the kind with which we are concerned) section 92 (1) explicitly
provided to the contrary. But their submission was that the ineffectiveness of
an out-of-country appeal constituted, in the language of Lim, a “special
and exceptional reason” for allowing the decision to be challenged by way of
judicial review. In support of that submission Mr Knafler referred to para. 77
of the judgment of Green J in Khan, in which, as I have said, he
glossed the general statement of principle at para. 70 (x). The passage in
question (p. 776 E-G) reads:
“In my view the High Court should in
this context treat a decision according only an out-of-country
appeal as special or exceptional only if facts emerged which showed, whether
systemically or in relation to an individual case, that an out-of-country
appeal implied a materially inferior right of access to the Tribunal than an
in-country right of appeal. If that were the case then the High Court might
well conclude that there was a violation of the fundamental right of access to
a court that needed to be protected by the exercise of its own jurisdiction. If
such a situation did arise it could readily be categorised as ‘special’ or
‘exceptional’. But as matters stand there is no evidence to this effect in this
case …”.
Mr Knafler submitted that since Kiarie
and Byndloss it was now established that, in a case where oral evidence was
central and the opportunity to give such evidence by video-link facilities was
not realistically available, an out-of-country appeal did indeed afford “a
materially inferior right of access”.
82.
That left the question of how that submission could be reconciled with the
decisions in Lim and in Mehmood and Ali and Sood. In Lim
this Court had allowed the Secretary of State’s appeal notwithstanding Lloyd-Jones
J’s view that an out-of-country appeal would not provide the claimant with a
fair hearing. In Mehmood and Ali Beatson LJ had said in terms that even
in a deception case – indeed specifically a TOEIC case – the default position
was that an out-of-country appeal was an adequate alternative remedy. Mr
Biggs, who developed this point more fully than Mr Knafler, submitted that we
were not bound by either decision because in neither was the Court squarely
confronted with a submission that an out-of-country appeal would be positively unfair
or ineffective, whether because the claimant would not be in a position to give
evidence by video-link or otherwise. Although in Lim the possibility
that there might be difficulties about giving evidence by video-link was
evidently raised at first instance, there appears – unlike in these cases – to
have been no evidence about it, and the question was not addressed in the
judgment of Sedley LJ. As for Mr Ali, the particular factors relied on in his case
were limited and specific. Mr Biggs reminded us that in Sood, which
post-dated Mehmood and Ali, Beatson LJ had expressly contemplated that a
claimant could proceed by way of judicial review where “the issues could not
properly or fairly be ventilated in an out-of-country appeal” – see para. 42 above.
The Secretary of
State’s Response
83.
In this section I have found it easiest not only to set out the
Secretary of State’s response to the Appellants’ case but also to give my
conclusions on it as I go. I again deal separately with the article 8 and
common law aspects.
Article 8
84.
While she made no formal concessions Ms Giovannetti did not attempt to
rebut the case that article 8 was engaged in the case of these three
Appellants. Given their particular histories as summarised above, this was
realistic. She was, however, concerned to rebut Mr Knafler’s primary case that
article 8 would be engaged in the great majority of cases where a student was
faced with premature removal. She referred to the judgment of Lord Carnwath in
Patel v Secretary of State for the Home Department [2013] UKSC 72, [2014] AC 651, which was concerned (inter alia) with the refusal of
leave to remain to two Pakistani students who had applied for further leave to
remain to continue their studies. They had failed to supply the correct
documentation but sought to rely on article 8. At para. 57 of his judgment
(pp. 674-5) Lord Carnwath commented:
“It is important to
remember that article 8 is not a general dispensing power. It is to be
distinguished from the Secretary of State's discretion to allow leave to remain
outside the rules, which may be unrelated to any protected human right. … One
may sympathise with Sedley LJ's call in Pankina’s case [2011] QB 376 for ‘common sense’ in the application of the rules to graduates
who have been studying in the UK for some years … . However, such
considerations do not by themselves provide grounds of appeal under article 8,
which is concerned with private or family life, not education as such. The
opportunity for a promising student to complete his course in this country,
however desirable in general terms, is not in itself a right protected under
article 8.”
In Nasim v Secretary of State
for the Home Department [2014] UKUT 25 (IAC) the UT (UTJJ Allen and Peter
Lane) referred at para. 20 of its judgment to that passage as “a significant
exhortation from the Supreme Court to re-focus attention on the nature and
purpose of Article 8”.
85.
We were also referred – though in fact by Mr Knafler rather than Ms
Giovannetti – to the decision of the UT in Munir, to which I have
already referred in another context (see para. 15 above). Judge Kekic in her
judgment referred to both CDS (Brazil) and Patel and said, at
para. 62:
“What
these decisions show is that an applicant will not have an article 8 right to
remain in the UK to complete a course of study simply because he has invested
time and money in those studies. The opportunity for a student to complete his
studies is not a protected right under article 8. Whilst that does not mean
such a person would never succeed in an article 8 claim, it is implicit in the
language of these judgements that successful claims in such circumstances would
be rare and that compelling considerations would be required to distinguish the
case from the generality of other such cases. No such considerations were
identified in the present case.”
Mr Knafler submitted that that
passage – or at least the second half of it – was not a true reflection of the
case-law and that it conflated the distinct questions of whether article 8 was
engaged and of whether, if so, the interference was justified.
86.
Although the question of the correct approach to the article 8 rights of
students is not decisive in the particular cases before us, it appears that
there is some uncertainty about the effect of the authorities. It may
accordingly be helpful if I say that I can see no real tension between the
decisions in MM and CDS (Brazil) on the one hand and Lord
Carnwath’s observations in Patel on the other. What those observations authoritatively
confirm is that the right to complete a course of education is not as such
a right protected by article 8. However, neither the AIT in MM nor the
UT in CDS (Brazil) said that it was, and Lord Carnwath was not
addressing either decision (to which indeed the Supreme Court had not been
referred, since they were not material to the issues before it). Rather, what those
decisions say is that persons admitted to this country to pursue a course of
study are likely, over time, to develop a private life of sufficient depth to engage
article 8. So far as that relates to ordinary social relationships, that is obviously
correct. It is true that the UT in CDS (Brazil) goes rather further, in
that it enumerates as possible components in a student’s private life not only
ordinary social relationships but also a “connection with the course, the
institution, an educational sequence for the ultimate professional
qualification sought”. That is perhaps a little ambiguous, but I do not think
it should be read as meaning that the mere fact that the student is part-way
through a course leading to a professional qualification by itself engages
article 8. In my view it means only that a student’s involvement with their
course and their college can itself be an important aspect of their private life;
and, so read, I regard it as unexceptionable. Whether those and other factors
are sufficient to engage article 8 in any particular case will depend on the
particular facts, and I would not venture on any generalisations beyond making
the trite point that the longer a student has been here the more likely he or
she is to have generated relationships of the necessary quality and depth.
87.
At the risk of stating the obvious, it is worth pointing out that the question
whether a person’s article 8 rights are engaged is quite distinct from the
question whether the interference of which he or she complains constitutes a
breach of those rights. Specifically in the case of a student, even if his or
her article 8 rights are engaged, it does not follow that those rights are
breached by their removal before they have completed their course. On the
contrary, if they cannot comply with the applicable Immigration Rules, their removal
is very likely to be justified. I think that that is all that Judge Kekic
meant in Munir; but if she meant that it will be rare for the article 8
rights of students to be engaged at all I do not agree.
88.
In the particular circumstances of the present cases, it is also worth emphasising
that, as Mr Knafler correctly submitted (see para. 76 above), whether the
Appellants’ removal would be a breach of their article 8 rights depends not on
any multi-factorial assessment of proportionality but on the single factual
question of whether they cheated in their TOEIC tests – and on whether a fair
procedure has been made available for deciding that question.
89.
I turn therefore to Ms Giovannetti’s case on whether an out-of-country
appeal constitutes a fair procedure in these cases. She was at pains to
emphasise that the legal context is very different from that in Kiarie and
Byndloss. The Supreme Court was there concerned with the effect of
certification under section 94B, and not with decisions taken under section 10 or,
therefore, with the line of authorities deriving from Lim. That is obviously
correct as far as it goes, but I do not see that the distinction is material for
the purpose of the particular way in which the Appellants rely on Kiarie and
Byndloss. They do so only, but crucially, as (a) establishing that, in a
case where the oral evidence of the appellant is important to the determination
of an appeal, an out-of-country appeal will not satisfy the procedural aspect
of article 8 unless facilities for giving evidence by video-link are
realistically available; and (b) as finding, on the evidence before it, which
the Appellants say is substantially identical in their cases, that such
facilities were not so available.
90.
Taking those points in reverse order, Ms Giovannetti did not attempt to
challenge the Appellants’ contention that there was on the evidence in these
cases no realistic possibility of their being able to give evidence by
video-link. She simply made the point that in other cases, where appellants
were being returned to countries with a higher level of development and/or were
better funded, a different conclusion might be reached. I would accept that, in
principle, whether it is realistically possible for evidence to be given by
video-link needs to be assessed on a case-by-case basis; but I would encourage
the Secretary of State and the UT to take a pragmatic view of what is likely to
be the position in typical cases and to use these appeals and Kiarie and
Byndloss as a useful benchmark. Ms Giovannetti also informed us that the
Home Office was actively engaged in developing arrangements for making
video-link available, in an effective and accessible way, to appellants in the
principal countries to which removals or deportations take place; and that
accordingly in due course this form of objection to the fairness of an
out-of-country appeal would hopefully be met.
91.
That leaves the prior question of whether the appeals in these cases,
and appeals in TOEIC cases more generally, can only be fairly determined if the
appellant gives oral evidence. Ms Giovannetti did not quite confront that
question head-on; and certainly she did not explicitly submit that the appeals
of any of these three Appellants could be fairly determined without them giving
oral evidence. She did emphasise how the forensic scene had changed since the first
cases; and she also pointed out that HK and AF took their tests at Elizabeth
College, which was one of the “fraud factories” identified by Mr Sewell. But
she did not go so far as to submit that we were in a position to decide, in the
cases of these Appellants or more generally, that their cases were so
open-and-shut, or so exclusively depedent on technical evidence, that the
evidence of the individual Appellant could be of no avail. I should however make
it clear that I would not have accepted any such submission. We could not have
reached a firm conclusion on the strength of the case against any of these
Appellants without being taken in detail through the materials deployed in the
more recent TOEIC cases and being addressed on the answer which each of the
Appellants might give, which we were not. Further, even if the Secretary of
State’s evidence is as strong as she says, I would be reluctant to accept that it
was possible fairly to determine an allegation of this character – that is, an
allegation of deliberate dishonesty, with serious implications for the
Appellants’ rights and reputation – without them being given the opportunity to
give oral evidence in rebuttal. In that connection I note Lord Wilson’s
observation in Kiarie and Byndloss that oral evidence may be particularly
important precisely because of the scepticism with which an appellant’s case
was likely to be met: see para. 46 above. I do not rule out the possibility
that a sufficiently strong case may be shown, but the test would have to be no
lower than that required for certification in the context of a human rights
appeal: cf. para. 156 below.
92.
For those reasons I am not persuaded that Ms Giovannetti has any answer
to the Appellants’ case that an out-of-country appeal would not satisfy the
procedural requirements of article 8. Such a breach of the Appellants’ rights
can be avoided by allowing them to challenge the removal decisions in their
cases by way of judicial review. That route is not precluded by the decisions
in Mehmood and Ali and Sood, since in neither of those cases – or
indeed in the Lim line of cases more generally – was any reliance placed
on article 8.
Common law
93.
That conclusion means that it is strictly unnecessary in these appeals
to consider the Appellants’ common law case. I should nevertheless do so because
the common law position will be important in any TOEIC case where the article 8
rights of the applicant are not engaged.
94.
Ms Giovannetti submitted that it was not axiomatic that the procedural
requirements imposed by the common law should always be as demanding as in
cases where article 8 rights were engaged. On the contrary, the nature of the
rights affected by a given decision was always an important determinant of the
nature of the procedural protection required: see, for example, Wiseman v
Borneman [1971] AC 297. That is right in principle. But in the case of a
migrant whose leave to remain is invalidated on the grounds of deception, with
the consequences identified at paras. 20-21 above, I believe that common law
principles of fairness, just as much as article 8, require that they should have
the opportunity to give evidence orally (except in a case where it is
established that oral evidence could truly make no difference).
95.
The question then is whether that conclusion is open to us on the
authorities. I do not believe that the general principle asserted in the Lim
line of cases is a real obstacle. Those cases recognise that the existence of
a statutory right of appeal does not constitute an absolute bar to a challenge
being pursued by way of judicial review. In my view Parliament cannot be taken
to have intended that access to judicial review should be unavailable in a case
where it is established that the statutory appeal procedure would not afford
effective access to justice. That is, in essence, recognised both by Green J
at para. 70 (x) of his judgment in Khan (see para. 39 above) and by
Beatson LJ in Sood (see para. 42 above). It is true that their
formulations are not quite the same. Beatson LJ referred to an exception arising
in “the circumstances of a particular case”, whereas Green J contemplated that it
might arise “systemically”. I am not sure there is any real difference, but I
can myself see no reason why there may not be a class of cases with common
features such that the issues, in Beatson LJ’s phrase, “[can] not properly or
fairly be ventilated in an out of country appeal”.
96.
However, it is not as easy as that. As Ms Giovannetti pointed out, Mehmood
and Ali and Sood go further than simply re-stating the principles
established by Lim: they apply those principles to precisely the kind of
case with which we are concerned, namely decisions based on an allegation of
cheating in a TOEIC test, and hold that an out-of-country appeal is an adequate
alternative remedy. However, I would accept the answer given by Mr Knafler and
Mr Biggs, as summarised at para. 82 above. Despite the breadth of some of the
statements in them, Mehmood and Ali and Sood cannot in my view be
treated as having decided as a matter of law that an out-of-country appeal was
an adequate alternative remedy in a TOEIC case. Formally, they were decisions only
that the appellants in those cases had not shown that it was not. That cannot
preclude this Court from coming to a different conclusion, on different arguments
and different evidence – specifically about the practical unavailability of
video-link facilities – even though the same arguments could perhaps have been
advanced in those cases. The same goes for Lim. Although in that case a
doubt about the availability of video-link facilities was aired at first
instance, this Court did not address that question at all, and it cannot be
treated as part of its ratio that, even if it had been shown that it
would be impossible for the appellant to give evidence by video-link, the
appeal would nevertheless be effective.
Conclusion
97.
For the reasons given above I would hold that an out-of-country appeal
would not satisfy the Appellants’ rights, either at common law or under article
8 of the Convention, to a fair and effective procedure to challenge the
decisions to remove them; and that in those circumstances, subject to the human
rights claim issue considered below, they were entitled to proceed with such a
challenge by way of judicial review.
98.
I emphasise that that conclusion depends on the particular features of
the Appellants’ cases, namely that the nature of the issues raised by their
appeals was such that they could not be fairly decided without hearing their
oral evidence, and also that facilities for giving such evidence by video-link
were not realistically available. Even if those features are shared by the
great majority of TOEIC cheating cases, it does not follow that they will be
present in all cases where the legislation provides for an out-of-country
appeal: in particular, whether it is necessary for the appellant to give oral
evidence will depend on the nature of the issues.
(6) THE
HUMAN RIGHTS CLAIM ISSUE
The Secretary of State’s Case
99.
It is, as I have said, the Secretary of State’s case that it was and is open
to the Appellants at any time to make a human rights claim, within the meaning
of section 113 of the 2002 Act (that is, to claim that the requirement that
they should leave the UK was incompatible with their rights under article 8), and
that to do so would open the door to an in-country right of appeal. The exact
way in which this would occur would depend on when the claim was made. The
position is rather complicated and requires to be taken in stages.
100.
If the human rights claim was made before the section 10 decision
was taken the position is straightforward. All the decisions with which we are
concerned are subject to the pre-2014 Act regime. Under that regime the mere
fact of having made a human rights claim would mean that the appeal against the
section 10 decision itself could be brought in-country. However, this will
rarely be so in TOEIC cases. It will only be by chance that a person given
notice of liability to removal under section 10 would already have a prior
human rights claim extant and unresolved.
101.
If the human rights claim was made after the section 10 decision,
section 92 (4) would not operate, for the reason explained at para. 15 above. But
Ms Giovannetti pointed out that in Nirula at first instance evidence was
given, and accepted by Mr Ockelton, that it was the Secretary of State’s policy
in such a case to withdraw the original decision and (unless she changed her
mind) to re-make it in same terms, thus producing a “post-human rights claim” decision
which could be appealed in-country. The relevant extract from chapter 51 of
the Secretary of State's Enforcement Instructions and Guidance was quoted at para.
64 of the judgment and read:
“If asylum or HR is claimed after serving the IS151A part
2, and removal directions are in place then refer to OSCU for advice before
suspending the removal directions. Otherwise withdraw the IS151A part 2 and
where the applicant will get an in country appeal right serve an IS151B with
any refusal of the claim.”
As Mr Ockelton observed,
that is decidedly cryptic, but he held at, para. 65, that the effect was:
“that a [human rights] claim made
to the Secretary of State after the service of an immigration decision … will
result in the withdrawal of the decision that carries no right of appeal, and,
if necessary, the making of another decision … [which] ... will carry an
in-country right of appeal unless certified.”
The manoeuvre so described was
referred to in the argument before
us as “the Nirula work-around”. The effect is – or was – that even if a
human rights claim was made only after the section 10 decision (or indeed after
the appeal to the FTT was lodged) an in-country appeal would under the pre-2014
Act regime be made available.
102.
Ms Giovannetti said that the
policy described in Nirula remained in place at all material times, and I
think also (though I am not entirely clear about this) that it remains in place
today. However, that needs some unpacking. Although no doubt it is correct in
respect of the period prior to the 2014 Act regime taking effect, I cannot see the relevance of the policy
as regards the period thereafter. Although under the old regime the
withdrawal of the old section 10 decision and its replacement by a new
post-claim decision was necessary in order to afford the person affected an
in-country appeal, that is no longer the case. The right to an in-country
appeal is generated by the refusal of the human rights claim and it is against
that refusal that the appeal lies (see para. 19 above). That is the case
irrespective of what happens to the original section 10 decision, and there is
accordingly no need for that decision to be withdrawn. On analysis, therefore,
Ms Giovannetti’s contention that the Appellants still have access to an
in-country right of appeal does not, under the new regime, depend on the Nirula
work-around but on the fact that they can make a human rights claim and
appeal against its refusal when and if that occurs.
103.
Thus, to summarise, Ms Giovannetti’s case should be analysed as being
that:
(a) as
long as the old regime remained in effect, the Appellants could have triggered
a right to an in-country appeal against the section 10 decision simply by
making a human rights claim – relying on the Nirula work-around if the
claim post-dated the notice; and
(b) once
the new regime came into effect, they could and can acquire a right to an in-country
appeal by making a human rights claim challenging the decision to remove them
and, if and when it is refused, appealing against that refusal.
Although the position under the new
regime is for that reason relevant to the issues before us, despite the initial
decisions in the Appellants’ case being made under the old regime, Ms
Giovannetti discouraged us from considering the position as regards a case
where the initial decision was made after the coming into effect of the 2014
Act, since no such case is before us. I accept that we should not do so (save
to the extent necessary in Mr Ahsan’s case).
104.
Ms Giovannetti emphasised that the availability of that route was
subject to the right of the Secretary of State to certify any human rights
claim made, under section 94 (2) of the 2002 Act in its pre-2014 Act form and section
94 (1) of the Act in its current form. But she said that that was
unobjectionable. If the claim was indeed clearly unfounded, there could be no
objection to it having to be pursued from abroad, even if such an appeal was
not properly effective. She referred to the decision of the ECHR in De
Souza Ribeiro v France (2014) 59 EHRR 10, at para. 83. She also emphasised
that Lord Wilson had made it clear in Kiarie and Byndloss that it was
fundamental to his analysis that the claims in those cases had not been
certified under section 94 (2) (see para. 49 above). If in a particular case
the claim had been wrongly certified, the claimant’s rights were protected by
the availability of judicial review. This was not in fact controversial. Mr
Knafler accepted that if a human rights claim was properly certified as wholly
unfounded an appellant could not object to having to pursue it from out of
country.
105.
It is not on the face of it relevant to Ms Giovannetti’s argument whether
any of the Appellants had in fact made a human rights claim at the time that
they brought their judicial review proceedings, or at the time that permission
was refused, or whether they have done so subsequently: what matters is that
they were, and remain, entitled to do so. However she set out in some detail what
she said the position was about human rights claims in each of the three cases,
and it is convenient to deal with that at this stage.
106.
Harwinder Kaur. It is not suggested that HK had made a human
rights claim prior to the issue of the present proceedings. In section 4 of
the claim form, however, which asks whether the claim includes any issues
arising from the Human Rights Act 1998, and if so which article of the
Convention is said to have been breached, the “Yes” box is ticked and article 8
is identified as the relevant article – although the Grounds, which are elaborately
pleaded, make no reference to HK’s Convention rights in any way. Mr Knafler submitted
that the mention in section 4 of the claim form constituted the making of a
human rights claim within the meaning of section 113. I cannot accept that a
merely formulaic reference to article 8 of that kind is sufficient. Although
the statute does not prescribe the degree of detail in which a human rights
claim must be advanced, it is in my view necessarily implicit in the concept of
making such a claim that at least the nature of the breach alleged should be
identified. However, as noted above, on 19 October 2016 HK’s solicitors
submitted to the Secretary of State what was described as the submission of a
fresh claim applying for leave to remain. This explicitly relied on the
private and family lives of HK and her husband and children, and Ms Giovannetti
accepted that it constitutes a human rights claim. No decision has been made
on that application.
107.
Rajwant Kaur. Ms Giovannetti submitted that RK did not make a
relevant human rights claim at any time prior to the issue of her judicial review
claim or at any stage in the proceedings before the UT. Mr Biggs argued that
the reliance on article 8 in the second of her two earlier tribunal cases (see
para. 59 above) constituted a human rights claim for these purposes. That
cannot be right: the claim was made for the purpose of proceedings in which she
had succeeded and was not at the date of the section 10 decision an extant
claim requiring determination. However, in a witness statement dated 4
September 2017 lodged for the purpose of her appeal to this Court RK does give
evidence, albeit very briefly, of some “personal and family circumstances”.
There is no express invocation of article 8, but Ms Giovannetti was content to
treat this as raising a human rights claim, while pointing out that there was
no explanation for why it had not been made earlier.
108.
Ataullah Faruk. It is not suggested that AF had made a human
rights claim prior to the issue of his judicial review proceedings. There is,
as in HK’s case, a bare indication in section 4 of his claim form that an issue
under article 8 of the Convention arises, but no such case is made in the
Grounds, which are, again, very fully pleaded. Mr Malik did not advance any
submissions about whether that was sufficient to amount to the making of a
human rights claim; but in my view it was not, for the reasons I have given in
HK’s case. However, it is accepted that such a claim was made in January 2016:
see para. 68 above.
The Appellants’ Response
109.
The Appellants’ response to Ms Giovannetti’s case on the human rights claim
issue differed as between Mr Knafler on the one hand and Mr Malik and Mr Biggs
on the other. I take them in turn.
110.
Mr Knafler acknowledged that in an appropriate case the route proposed
by Ms Giovannetti might indeed constitute an appropriate alternative remedy.
Specifically, if at the time that the Upper Tribunal was deciding whether to
grant permission to apply for judicial review of a section 10 decision the applicant
had made a human rights claim (for example, in his or her grounds) and the
Secretary of State had in her turn made a new decision which attracted an
in-country appeal, then it might indeed be legitimate to refuse permission.
But he said that that had not happened in HK’s case. He did in fact contend,
as noted at para. 106 above, that HK had made a human rights claim in her claim
form, which had not led the Secretary of State to make a new decision. But
even if he were wrong about that – as I have held he is – the fact remained
that at the time that permission was considered there had been no refusal of a
human rights claim such as to generate a right to an in-country appeal.
111.
Mr Knafler submitted that even where a human rights claim had been made,
but not yet refused, it would be wrong in principle to refuse permission to
apply for judicial review on the basis that it could be assumed that a decision
would be made eventually. There was no guarantee that the Secretary of State would
act with reasonable promptitude. She acknowledged no obligation to do so, and
it was notorious that decision-taking in the Home Office could be very slow: it
was to be noted that no decision had yet been made on HK’s claim made in
October 2016. The matter was wholly out of an applicant’s hands. Mr Knafler
reminded us of the grave consequences of the service of a section 10 notice as
summarised at para. 9 above. There was a serious risk of persons with a viable
challenge to their removal being forced in practice to abandon it and leave the
country because they could not get on with their lives; and indeed the
Secretary of State would have an incentive to delay a decision in the hope that
that would occur.
112.
Mr Malik and Mr Biggs took a more radical position. They focused on
the fact that any in-country appeal under the post-October 2014 regime afforded
by following Ms Giovannetti’s route would, necessarily, not be an appeal against
the section 10 decision itself but only against the refusal of the human rights
claim, which is a different decision. Such an appeal could not be an adequate
alternative remedy to the quashing of the section 10 notice by way of judicial
review. There were two strands to their submissions in this regard.
113.
First, Mr Biggs in particular submitted that persons against whom a
finding of deception was made by the Secretary of State were entitled as a
matter of justice to a judicial decision about whether that finding was
justified, both because of its effect on their reputations and because of its
specific consequences for future applications for leave to enter: see paras. 20-21
above. A human rights appeal would not necessarily achieve that outcome. It
is true that if (a) the tribunal accepted that the appellant’s human rights
were engaged by their proposed removal and (b) the only justification advanced for
the removal were that they had used deception, then that issue would have to be
determined. But one or other of those conditions might be absent. As to (a),
not every person against whom a decision based on deception is made may have established
a significant private or family life in this country. As to (b), the proposed
removal might be justified on other grounds (as in fact the Secretary of State
was arguing in Mr Ahsan’s case – see para. 150 below).
114.
Second, the section 10 notice had the specific consequences in law identified
at para. 9 above – including that if the person served with it did not leave
the country they would be committing a criminal offence. If it was wrongly
made, that very decision needed to be quashed so that those consequences were,
as a matter of law, undone. A decision by the tribunal simply that removal
would be contrary to their human rights would not have that effect. Mr Biggs
illustrated the general point by reference to the circumstances of RK’s case.
Her outstanding application for leave to remain depended on her having had
unbroken leave to remain at the point that she made her further application.
If the section 10 decision stood, that would not be the case since the effect
of section 10 (8) was that her leave was invalidated. But if that decision
were quashed she would be able to rely on section 3C of the 1971 Act in the
usual way.
Discussion and
Conclusion
115.
I start from the position that, other things being equal (though that is
an important qualification in this case), it is better for the issue whether a
person has cheated in their TOEIC test to be determined in an appeal to the FTT
rather than by way of judicial review proceedings in the UT. The FTT is,
generally, the more appropriate forum for the determination of disputed issues
of primary fact, and as a matter of the best use of judicial resources the UT
ought not to be burdened with cases that could properly be determined in the
FTT. That approach is reinforced by the consideration that Parliament specifically
provided for appeals against section 10 decisions to be heard in the FTT, albeit
out-of-country. (The FTT is also, though this is perhaps a neutral point, a jurisdiction
where costs are not normally awarded.)
116.
Of course, as already established, the direct route to the FTT by way of
an old-style appeal against the section 10 decision itself would not provide an
effective remedy in these cases, because it is out-of-country. The question before
us is whether a different route to the FTT (in-country), via a human rights
appeal, constitutes an appropriate available remedy. In my judgment, it may
do, if but only if all of the following conditions are satisfied:
(A) It
must be clear that on such an appeal the FTT will determine whether the
appellant used deception as alleged in the section 10 notice.
(B) It
must be clear that if the finding of deception is overturned the appellant
will, as a matter of substance, be in no worse position than if the section 10
decision had been quashed in judicial review proceedings.
(C) The
position at the date of the permission decision must be either that a human
rights claim has been refused (but not certified), so that the applicant is in
a position to mount an immediate human rights appeal, or that the applicant
has failed to accept an offer from the Secretary of State to decide a human
rights claim promptly so that a human rights appeal would become available.
If those conditions are satisfied, the
UT would in my view normally be entitled to refuse permission to apply for
judicial review – though it is impossible to predict the idiosyncrasies of
particular cases, and I should not be regarded as laying down a hard-and-fast
rule. I should say something more about each of the conditions.
117.
As for (A), if in a case of this kind permission were given to apply for
judicial review of the section 10 decision, the applicant would obtain a
judicial determination of whether he or she did or did not cheat in their TOEIC
test, since that is a matter of precedent fact on which the lawfulness of the decision
depends. I regard the right to such a determination as a matter of real value because
of the potentially grave other consequences of an official finding of that
character, as identified at paras. 20-21 above, even where (untypically) it is
not, or no longer, central to any removal decision. However an appellant would
prima facie also obtain such a determination in a human rights appeal.
The tribunal would of course have to decide the deception issue for itself
rather than simply review the Secretary of State’s finding on rationality
grounds, and the appeal would to that extent be an appropriate alternative.
But if there is any risk that the appeal will be determined on a basis which
does not require such a determination, e.g. for the reasons suggested by Mr Biggs
at para. 113 above, that will not be the case.
118.
I should say, for the avoidance of doubt, that the reasoning in the
previous paragraph does not mean that in every case where a finding of
deception is made the subject of that finding is entitled to a judicial
determination of the truth of the allegation. Whether it does so will depend
on the legal context in which the question arises, including whether it is
material to a human rights claim. That there are cases where only a
rationality review is available is illustrated by Giri (see para. 43
above).
Ms Giovannetti was asked by the Court whether an appellant was entitled to
pursue a challenge to a deception finding in its own right, irrespective of its
impact on the question of leave to remain or potential removal. She said that
in principle they would be, but she submitted, relying on Giri, that
such a challenge could only be on Wednesbury grounds.
119.
I turn to condition (B). Mr Biggs must be right that where the FTT on a
human rights appeal finds that the appellant did not cheat, that will not
formally lead to the reversal of the section 10 decision: that is a different
and prior decision which will not as such be the subject of the appeal. In
contrast, a successful judicial review challenge would lead to the section 10 decision
being quashed. But I would not regard that difference as necessarily
conclusive. This is an area where we should be concerned with substance rather
than form. I would regard the crucial question as being whether the fact that
the section 10 decision remained formally in place – so that leave to remain
was still formally “invalidated” (see section 10 (8)) – would leave an
appellant worse off as a matter of substance than if the decision had been
quashed. Unfortunately this aspect was not explored in the oral submissions as
fully as it might have been, no doubt as a result of the late emergence of the
human rights claim issue; and the guidance I can give must be rather tentative.
120.
The starting-point is that it seems to me clear that if on a human
rights appeal an appellant were found not to have cheated, which inevitably
means that the section 10 decision had been wrong, the Secretary of State would
be obliged to deal with him or her thereafter so far as possible as if that
error had not been made, i.e. as if their leave to remain had not been
invalidated.
In a straightforward case, for example, she could and should make a fresh grant
of leave to remain equivalent to that which had been invalidated. She could
also, and other things being equal should, exercise any relevant future discretion,
if necessary “outside the Rules”, on the basis that the appellant had in fact
had leave to remain in the relevant period notwithstanding that formally that
leave remained invalidated. (I accept that how to exercise such a discretion
would not always be easy, since it is not always possible to reconstruct the
world as it would have been; but that problem would arise even if the decision were
quashed on judicial review.)
If it were clear that in those ways the successful appellant could be put in
substantially the same position as if the section 10 decision had been quashed,
I can see no reason in principle why that should not be taken into account in
deciding whether a human rights appeal would constitute an appropriate
alternative remedy. To pick up a particular point relied on by Mr Biggs, I do
not regard the fact that a person commits a criminal offence by remaining in
the UK from (apparently) the moment of service of a section 10 notice as
constituting a substantial detriment such that he is absolutely entitled to seek
to have the notice quashed, at least in circumstances where there has been no
prosecution. (It is also irrelevant that the appellant may have suffered
collateral consequences from the section 10 decision on the basis that his or
her leave has been invalidated, such as losing their job; past damage of that
kind cannot alas cannot be remedied by either kind of proceeding.)
121.
So far so good, but the law in this area is very complicated and I am
not confident that all its ramifications were fully explored before us. I do
not feel in a position to say definitively that the Secretary of State will
always be able to exercise her discretion, in the aftermath of a successful
human rights appeal, so as to achieve the same substantive result as the formal
quashing of the section 10 decision. There may, for example, be legislation (i.e.
primary or secondary legislation rather than simply the Rules) which would result
in the appellant having to be differently treated depending on whether he or
she had leave to remain during a particular period. If there were any real
doubt about whether in a given case a successful human rights appeal would be
as effective as the formal quashing of the section 10 decision the applicant
should have the benefit of that doubt and be permitted to pursue judicial
review proceedings.
122.
As for condition (C), I believe Mr Knafler was right to concede that if
at the permission stage a human rights claim has already been made and refused,
so that the claimant could appeal forthwith, then the UT would be entitled to
refuse permission on the basis that an appropriate alternative remedy was
available (assuming that the other two conditions are satisfied). That would
lead to the crucial question being determined in what I believe to be the most
appropriate forum.
123.
However I also agree with Mr Knafler (subject to the point next
considered) that it would be wrong to refuse permission where a human rights
claim had been made but not yet refused. That would mean refusing permission
on the basis, not that an alternative remedy was in fact available, but that it
would become available at some uncertain date in the future. I regard that as
wrong in principle, since the applicant is left entirely in the hands of the
Secretary of State and may have to pass many weeks or months in limbo.
124.
The remaining question is what the position is if no human rights claim
has been made at all: the Secretary of State cannot decide a claim which has
not been made. Given the complexity of the law in this area, I am not prepared
to be critical of an applicant who has brought judicial review proceedings challenging
a section 10 decision under the pre-2014 Act regime but who has not appreciated
the possible procedural value of also making a human rights claim. Under that
regime the making of such a claim would not, so far as the statute was
concerned, have entitled him or her to an in-country appeal, because the claim
would necessarily have post-dated the decision; only the most sophisticated
might have been aware of the Nirula work-around. Nor do I think it is
reasonable to expect them to have re-assessed the position following the coming
into force of the new regime. However, the position would in my view be
different if this route to an in-country appeal – in what I believe to be
inherently the more appropriate forum – had been expressly offered to them by
the Secretary of State and unreasonably refused. If the Home Office were to
invite a judicial review applicant to make a human rights claim and undertake
to consider such a claim and reach a decision within a reasonably short period (say
28 days), and that offer were not accepted, I would regard it as legitimate for
the UT to refuse permission – assuming that the other conditions were satisfied
– on the basis that an in-country appeal was potentially available and that the
only reason why it was not yet actually available was the applicant’s own
inaction.
125.
The position is of course different if a human rights claim has already
been made and certified. In such a case the claimant’s right to an in-country
appeal must depend on a challenge to the certification decision: see para. 104
above.
126.
I turn to consider whether those conditions are satisfied in these three
cases. Condition (C) is plainly not. HK made a human rights claim over a year
ago but no decision has been made.
RK has now, albeit very belatedly, made such a claim, but there has been no offer
by the Secretary of State to deal with it within a short timescale. AF has
also made such a claim, but it has been certified. The question whether conditions
(A) and (B) are met does not therefore arise. However, on the face of it
condition (A) would appear to be met in all three cases, since we were not made
aware of any other issue in any of them that might make it unnecessary to
decide if the Appellant had cheated. As regards (B), my provisional view is
that the particular problem in RK’s case raised by Mr Biggs (see para. 114 above)
could have been satisfactorily met by the Secretary of State treating her
outstanding application as if she had had section 3C leave at the time it was
made; but I need not express a concluded view.)
127.
It follows that I do not believe that permission to apply for judicial
review should be refused on the basis that the Appellants have an alternative
remedy in the shape of a human rights appeal.
Concluding Observations
128.
We have been told that a large number of applications to the UT for
permission to apply for judicial review have been stayed pending the outcome in
these appeals. It follows from the foregoing discussion that decisions may
still have to be taken on a case-by-case basis about whether a human rights
appeal does in the circumstances of the particular case afford an appropriate
alternative to proceeding by way of judicial review. That produces a less
clear-cut outcome than a blanket decision that a human rights appeal either is
always or is never an appropriate alternative remedy; but I am afraid that
cannot be helped. The Secretary of State may in the end, after consideration
of this judgment, prefer not to take the point; but that must be for her
assessment. If she does take it in all or some cases, she will no doubt wish
to consider how best to ensure that applicants are made aware of the
availability, or potential availability, of a human rights appeal in their particular
cases. And it may be that some applicants, once they are made aware of that
option, may positively prefer to pursue it. But none of these are matters that
we can dictate.
129.
It is worth reflecting briefly on how this very messy and unsatisfactory
state of affairs has arisen. It seems to be the product of three factors
operating together:
(1) First,
the basic route of challenge to a section 10 decision provided for by the
legislation is by way of an out-of-country appeal, in circumstances where such
an appeal does not, in cases like these, afford access to justice.
(2) Second,
although the legislation as it stood before the 2014 Act allowed for an
in-country appeal where a human rights claim had been made, that route was not
available in these cases because the claim had to have been made before the
decision was taken, and the Secretary of State served the section 10 notices
without any prior warning, giving no opportunity to make a human rights claim
first. There may have been good reasons for her taking that course, though
when we put the point to Ms Giovannetti her instructions did not enable her to
say more than that there had been careful consideration by the Home Office of
what was the best way of proceeding.
(3) Third,
although under the old legislation that problem could have been resolved by use
of the Nirula work-around, the structural changes effected by the 2014
Act closed off that route. An in-country appeal is now only (arguably)
available by appealing against a different decision, which inevitably leads to
the complications discussed above.
It would be useless, even if we
were in a position fairly to do so, to attribute blame for all this. I would
only observe that it is a yet further illustration of the difficulty and
complexity of the law in this area.
(7) THE ADDITIONAL POINTS IN MR FARUK’S CASE
130.
As noted above, Sir Stephen Silber gave AF permission to appeal not on
the basis of the more general grounds in HK’s and RK’s cases, although he has
since adopted those grounds, but on the basis of two reasons peculiar to his
case which were said to constitute “special and exceptional factors” of the
kind recognised in the Lim line of cases. These continued to be relied
on by Mr Malik by way of fallback. I take them in turn.
131.
The first depended on an e-mail exchange between the Home Office and ETS
in 2012, when AF’s application to extend his leave to remain was being
considered: copies were eventually disclosed as a result of a subject access
request. In the exchange ETS was asked by the Home Office to “verify” the
information contained in the TOEIC test certificate which AF had submitted in
support of that application. It replied saying that the details in question
“have been verified and are correct”. It is AF’s case that that exchange
constituted evidence that he had in fact taken the test in person and that it
was a breach of the Secretary of State’s duty of candour that it had not been
disclosed in the present proceedings prior to the refusal of permission by the
Upper Tribunal. This contention seems to me obviously ill-founded. The only
reasonable reading of the exchange, which pre-dates the Panorama
revelations by over a year, is that it was not directed to establishing that AF
had taken the test personally but was simply a routine enquiry to establish
that the test certificate was a genuine record of his scores.
132.
The second stemmed from the fact that AF had a pending application for
an extension of his leave to remain at the time that the section 10 notice was
served. It was said that but for the allegation of cheating that application
would have been granted, and that it would have led to his accruing ten years
lawful residence in 2016 and qualifying for indefinite leave to remain. Mr
Malik’s point was not that the invalidation of AF’s existing leave to remain by
the service of the notice would deprive him of that opportunity: as I
understand it, he acknowledged that if the appeal succeeded the status quo
ante would be restored. Rather, it was that if he had to leave the country
in order to pursue his appeal he would cease to be able to show ten years’ continuous
residence. Ms Giovannetti’s response was that the Secretary of State
acknowledged that, if on an out-of-country appeal the FTT found that AF had not
cheated, she would be obliged to proceed in any application under the Rules on
the basis that the section 10 notice was wrongly given and that AF would have
accrued the necessary ten years. I see no reason to go behind that assurance,
and if this had been the only basis of AF’s appeal I would have dismissed it.
133.
I should add for completeness that in her witness statement lodged for
the purpose of his appeal AF’s solicitor, Ms Shah, recounted in some detail the
experience of a different client, a Mrs Shah, who had brought an out-of-country
appeal in a TOEIC case and had succeeded. Ms Shah says that when she asked the Home
Office “to reinstate Mrs Shah’s previous visa status” – the “invalidated” leave
not having expired – she was told that she would have to apply for entry
clearance in the usual way and show that she qualified under an appropriate
category. That decision is now itself being challenged by way of judicial
review. Ms Shah’s point was that if AF returned to Bangladesh in order to
pursue his appeal he would presumably be treated in the same way and be
deprived of – or at least unjustifiably hampered in achieving – the fruits of
his victory. A similar point, based on the case of a Mr Patel, was made in
evidence from Mr Khan of HK’s solicitors. There was some discussion of this
point in oral submissions. Ms Giovannetti said that she was unable to comment
on the particular cases referred to but acknowledged that the Secretary of
State ought to take whatever steps were possible to restore successful
out-of-country appellants to the position that they would have been in but for
the impugned decision. After the conclusion of the hearing the Treasury
Solicitor on 30 October 2017 wrote to the Court as follows:
“… I have
been asked to clarify my client’s position in circumstances where an out of
country appeal has taken place and the Tribunal has allowed the Migrant’s
appeal and, in doing so, has found against the Secretary of State.
For the
avoidance of doubt in such circumstances, the Secretary of State accepts that
she is bound by the findings of the Tribunal in a successful out of-country
appeal and that any detriment to the appellant should be minimised as far as
possible. This is likely to include the need to grant entry clearance.
The Secretary
of State will use her best endeavours to ensure that appropriate steps are
taken to give effect to the Tribunal’s decision.”
It is not necessary or appropriate
for this Court to express an opinion on any disputed matters that do not arise
in these appeals and were not the subject of argument. But I hope that the
Secretary of State will indeed ensure that Entry Clearance Officers are
properly aware of the need to give full effect to decisions of the FTT and UT.
CONCLUSION ON THE SECTION 10 APPEALS
134.
I would allow all three appeals and give permission to the Appellants to
apply for judicial review of the section 10 decisions in their cases and thus,
in that context, for a determination of the question whether they cheated in
their TOEIC tests. I would remit the cases to the UT for that purpose. In
AF’s case consideration will need to be given to how those proceedings relate
to his stayed application in relation to the certification of his subsequent
human rights claim.
(B) MR
AHSAN’S APPEAL
THE FACTS AND THE PROCEDURAL HISTORY
135.
NA is a Pakistani national, now aged 30. He came to this country on 23
August 2006 on a student visa valid until 30 November 2007. His leave was
extended on various occasions. In support of applications made on 2 October
2012 and 26 July 2013 he submitted a TOEIC test certificate issued by Colwell
College in London on the basis of a test taken on 27 June 2012. The most
recent grant of leave was to 19 June 2015.
136.
In August 2014 the licence of NA’s sponsoring college was revoked. On
23 October he made a further application for leave to remain on the basis of
continuing his studies at a different college, the Centre of Training and
Management (“CTM”). It is common ground that while that application was
pending he enjoyed leave to remain under section 3C of the 1971 Act.
137.
In the meantime, on 28 October 2014 the Home Office wrote to NA enclosing
a section 10 notice dated 24 October notifying him that he was liable for
removal on the basis that he had used a proxy for the tests on whose results he
had relied in his 2012 and 2013 applications. The notice was in essentially
the same terms as in the cases of the section 10 Appellants. In fact it was
invalid because under the applicable commencement provisions NA’s case fell
under the 2014 Act regime, under which, as we have seen, section 10 in its
original form had been replaced.
138.
On 9 February 2015 NA commenced judicial review proceedings challenging
the section 10 decision. The grounds contained an explicit statement that he
had taken the TOEIC test himself and advanced at least some reasons in support
of that statement. By that time the Secretary of State had appreciated that the
section 10 decision was invalid. The proceedings were accordingly compromised by
a consent order dated 6 May. By the recitals to that order the Secretary of
State (a) agreed to withdraw the section 10 notice; (b) acknowledged that she
had to consider the outstanding application of 23 October 2014; (c) allowed NA
a further 60 days to update that application; and (d) confirmed that he “has
been and remains on section 3C leave since he submitted his application” (I
have slightly re-ordered those points for ease of summary).
139.
On 17 June 2015 NA’s solicitors, Maliks & Khan (“MK”), wrote to the
Home Office purportedly submitting updated information in accordance with
recital (c) of the order of 6 May. As I understand it, the original purpose of
that recital was to enable NA to submit a fresh application supported by a CAS
from CMT; but that proved impossible because, as MK explained in the letter, CMT’s
licence had been revoked on 12 June. They asked for a further 60 days to
enable him to find a new sponsor. But they also indicated that NA was
submitting a separate application on form FLR (FP) seeking leave to remain “due
to the extensive private life he has established under Article 8 of the ECHR”.
140.
That application was submitted under cover of a further letter from MK dated
22 June 2015, which asks that it be accepted as a “variation” of the extant
application. Form FLR (FP) is described on its face as appropriate for an
application for leave to remain based either on family life as a parent or
partner or on “private life in the UK (10 year route)”: qualification by the
last of those routes at least would entitle the applicant to indefinite leave
to remain under paragraph 276DE of the Immigration Rules. NA had no child or
partner, and he had been in the UK for less than nine years, so the form does
not appear very apposite. The way it is completed yields almost no information
about the basis on which the application is made, but I assume that the terms of MK’s covering
letter are intended to be incorporated. These are somewhat diffuse but they
appear to say that the application is for leave to remain (not specified as
being indefinite leave) under article 8 outside the Rules and/or as a matter of
common law fairness. The basis of the application is explained as follows:
“The Applicant
seeks to extend his stay in the UK in order for him to complete his education
in the United Kingdom.
The Applicant
came to the UK to complete his studies. The Applicant came to the UK
at the age of 18 and is now 27 years old.
The Applicant
has invested a lot of time and money on his education in the UK.
Therefore, it is unfair for the client to go back to Pakistan without
completing his education.
The
Applicant’s current Tier 4 institution licence has been revoked and therefore,
the Applicant cannot rely on the CAS submitted in his last Application for
extension as a Tier 4 Student. The Applicant cannot be held responsible for
the Home Office revoking the Tier 4 Sponsors Licence. The Applicant has not
contributed and is at no fault in the revocation of the Licence. The Applicant
is not able to complete his education to the end due to this recent hindrance
by his Tier 4 Sponsor.”
MK then refer to the well-known decision
of the UT (Blake P and UTJ Batiste) in Patel v Secretary of State for the
Home Department [2011] UKUT 00211 (IAC). That decision establishes, in
short, that in cases where a sponsor’s licence has been revoked a student ought
generally to be given an extension of leave sufficient to give him or her a
reasonable opportunity to make an application to vary their current leave by
naming a new sponsor; and that an extension of 60 days would be sufficient for
that purpose. They continue:
“Therefore, as
per the judgment, the appellant ought to have been afforded a reasonable
opportunity to vary the application under s. 3C(5) Immigration Act 1971 by
identifying a new sponsor before the application is determined. However, the
Applicant is unable to secure a new Tier 4 sponsor without having current valid
leave. The Applicant has approached a number of Tier 4 institutions however
they have declined to issue the Applicant a valid CAS for the purpose of
continuing with his education. Due to recent restrictions placed on Tier 4
Sponsor’s by the SSHD most college/universities are reluctant to take on
students that have no valid leave or where the students previous Sponsor has
had their Licence revoked.”
This passage is rather obscure, but
I understand it to raise a different point than merely needing a further 60
days: what appears to being said is that sponsors will not issue a CAS on the
basis of section 3C leave only.
141.
I do not understand why MK advanced the application for further leave to
remain in the way they did. Seeking to rely on the original application of
October 2014, as varied by the application on form FLR (FP), itself glossed by the terms of the
covering letter, was a recipe for confusion. Nevertheless it is adequately
clear that a, if not the, central thrust of the application was that NA was
entitled under article 8 to leave to remain for a sufficient time to find a new
sponsor and to complete his studies thereafter. It was on any view a human
rights claim within the meaning of section 113 of the 2002 Act.
142.
By a decision dated 31 December 2015 NA’s application was refused. The reasoning
in the decision letter proceeds methodically through the various bases of application
for which form FLR (FP) is designed. This results in a fair amount of
repetition, but the reasons can for present purposes be sufficiently summarised
as follows:
(1) NA
did not qualify under any of the positive provisions of the Immigration Rules
relating to private or family life. In particular, so far as private life was
concerned he had not been in the UK for ten years.
(2) In
any event his application would fall for refusal under the suitability
provisions of Appendix FM (which apply also to private life claims) because he
had relied on a fraudulently obtained TOEIC certificate: the allegation that he
had used a proxy for the spoken English part of the test was in substantially
identical terms to those in the abortive section 10 notice, and I need not set
them out here. No reference is made to his denials in the compromised judicial
review proceedings.
(3) There
were no exceptional circumstances justifying the grant of leave to remain under
article 8 outside the Rules. In that connection the letter says, among other
things:
“You have
stated that you wish to study in the UK. This has been carefully considered.
However, it is open to you to return to Pakistan and pursue your studies there.
Alternatively, you can apply for entry clearance from Pakistan
to study under the appropriate route.”
143.
The decision letter concluded with a certification decision in the
following terms:
“After consideration of all the
evidence available, your claim has been certified under section 94(3) of the
Nationality, Immigration and Asylum Act 2002 because the Secretary of State is
not satisfied that it is not clearly unfounded. This is because you lived in Pakistan
for 18 years before entering the UK and have stated that you have family
there. It is therefore not considered that it would be reasonable to expect
you to return to Pakistan as explained above.”
(The reference to section 94 (3) must
be an error, since sub-section (3) has no application to NA’s case. But the
case has proceeded on the basis that the intended reference is to sub-section
(1).) The letter explains that the effect of that certification is that NA’s
right to a human rights appeal could only be pursued from outside the UK.
144.
It will be noted that the reasons given for the certification focus
entirely on the fact that NA would be able to integrate in Pakistan
if returned, which was evidently believed to be decisive of his case based on
article 8 generally. Nothing is said about his case based on the need for a
further period of 60 days (or more) as a result of the revocation of CMT’s
licence. Nor is it said that his claim not to have used deception was clearly
unfounded: indeed, as I have noted, his denials are not referred to at all.
145.
The present proceedings were issued on 31 March 2016. The only ground
pleaded is that the certification of NA’s human
rights claim was unlawful. I need not summarise in detail the particular
contentions advanced under that ground. It is sufficient to say that it is
contended that neither NA’s case based on his private life nor his denial that
he had committed TOEIC fraud could be said to be wholly unfounded.
146.
Permission to apply for judicial review was refused by UTJ Rimington on
the papers on 14 June 2016, essentially on the basis that, irrespective of the
deception issue, it was not arguable that NA could be entitled to leave to
remain on the basis of his private life.
147.
NA renewed his application at an oral hearing before UTJ Kekic on 26
August 2016. She refused permission. Her written summary of her reasons
reads:
“(1) The
evidential burden on the respondent with respect to the allegation of deception
has been discharged.
(2) The
applicant’s private life application does not meet the requirements of the
Immigration Rules and does not disclose any compelling or exceptional factors
which would warrant a grant of discretionary leave.
(3) The
applicant has the remedy of pursuing an out of country appeal.”
148.
On 10 July 2017 Sir Stephen Silber gave permission to appeal in the same
terms as in HK’s and RK’s cases, i.e. by reference to Kiarie and Byndloss.
THE ISSUES
149.
The history of the case has not conduced to the issues being clearly defined
in advance of the hearing. The best way of identifying them is to summarise
the parties’ cases as they appear from the skeleton arguments and the oral
submissions.
150.
I start with how Ms Giovannetti put her case. In her initial skeleton
argument she contended that, viewed as a straightforward private life claim
based only on the length of time that NA had been in the UK,
it was, as both UT judges had held, hopeless. To anticipate, I agree; and Mr
Knafler did not attempt to argue otherwise. In her oral submissions she
addressed the case based on NA’s interest in continuing his education, and
submitted that that too was hopeless. This was a case of a not unusual type
where a student’s college had lost its licence and he had been unable to find
another college within the 60-day period which Patel had held to be
reasonable. That being so, any challenge to the certification on the basis
that it was arguable that NA had not cheated in his TOEIC test was immaterial,
since even if that was the case he had no basis for leave to remain.
151.
I turn to Mr Knafler’s submissions. He contended that it was impossible
to hive off the deception issue in the way argued for by Ms Giovannetti. There
was plainly an arguable issue on the human rights claim which arose from the interruption
of NA’s studies by the revocation of CTM’s licence. That had occurred only ten
days before the letter of 22 June 2015 and on any view NA should have been
given 60 days to find a new sponsor; but he said that the point raised in the
final passage quoted from MK’s letter (para. 140 above) might have required a
longer grant. This aspect was not addressed in the decision letter and was not
the basis of the decision.
152.
That being so, the decision stood or fell by the finding that NA had used
deception, and the certification of his claim in that regard was indefensible
since there was clearly an arguable issue as to whether he had cheated as
alleged. Mr Knafler reminded us of the well-known authorities on
certification, most recently reviewed at paras. 48-62 of the judgment of
Beatson LJ in R (FR (Albania)) v Secretary of State for the Home Department
[2016] EWCA Civ 605. He relied on the many observations in the UT and this
Court to the effect that the question whether an applicant or appellant had
cheated was fact-sensitive and could not be decided without consideration of
their oral evidence. He also relied on the fact that NA had very recently – in
mid-August 2017 – sought and obtained a copy of his voice-files and that his
solicitors, who have been representing him for many years, have made witness
statements saying that the voice on it is clearly recognisable as his.
DISCUSSION AND
CONCLUSION
153.
The first question is whether NA’s article 8 case was clearly unfounded,
so that it is, as Ms Giovannetti submits, unnecessary to consider the deception
issue at all. If that case were being run on the basis simply of nine years’
residence, together with difficulty of re-integration on return, it would be impossible
to challenge the certification. But there is of course the more specific case
based on the interruption of NA’s studies by the successive revocation of the
licences of his most recent sponsors. I am doubtful about this. NA may well
have had an arguable case that he was entitled to a further 60 days leave in
order to find another sponsor, but by the time of the Secretary of State’s
decision that period had long passed. On the other hand, MK do appear to have
been contending that he could not get a CAS unless and until leave, other than section
3C leave, was granted. We were not addressed on the detail of all this, and it
may be that that argument is spurious. However, the point was not specifically
addressed in the decision letter, and it is important to bear in mind that this
is a certification case and the benefit of any real doubt must go to the
appellant. I am not prepared to say that this aspect of NA’s human rights
claim was wholly unfounded.
154.
The certification can thus only be upheld on the basis that the case
that NA had cheated was, in effect, unanswerable. However, that was not the
reason for the certification given in the decision letter. There is the
further problem that the letter did not advert in any way to NA’s denial of
having cheated pleaded in the previous judicial review proceedings, let alone
seek to explain why any such denial was clearly unfounded. In my judgment those
points are sufficient to render the certification unlawful.
155.
It is not strictly necessary in those circumstances to consider whether,
if the Secretary of State had addressed the question, she could reasonably have
concluded that the case against NA was unanswerable, and accordingly certified that
his human rights claim was clearly unfounded. But I find it hard to see how she
could have. It is clear from the authorities summarised in FR (Albania) that the question would have to be decided on the basis of the information
reasonably available to the Secretary of State at the time of her decision. The
emphasis placed in the case-law on the fact-sensitivity of cases of this kind
means that any certification will be vulnerable unless it is based on a
thorough review of the evidence said to demonstrate cheating in the particular
case, including any denial by the person in question. I do not see how, on the
materials apparently available to the Secretary of State at the end of 2015
(being the date of the decision in his case), as assessed in the case-law from
the following year, she could reasonably have been sure that his case that he
took the test personally would be disbelieved by a tribunal.
156.
I recognise that, as Ms Giovannetti has emphasised, the nature of the
available evidence has since then changed and that those changes are reflected
in the more recent case-law. As I have already said, we were not taken to the
evidence in question ourselves. I do not rule out the possibility that it may
be capable of supporting certification in some cases; but if the Secretary of
State intends to certify in any given case she will need to confront the
repeated admonitions to the effect that these cases are fact-sensitive and say
with particularity why there is in the circumstances of the particular case
nonetheless no prospect that the appellant’s oral evidence could discharge the
evidential burden on them. I took Ms Giovannetti to be floating the
possibility that an appeal could not succeed where the claimant had not taken
the elementary step of obtaining a copy of his or her voice-file. I accept
that that may well be a weighty consideration; but I am not prepared to say
that it will in all cases be decisive.
157.
For those reasons it seems to me that permission to apply for judicial
review should have been granted in NA’s case, and his appeal should accordingly
be allowed. Formally, whether permission should have been granted is the only
issue before us, and the application for judicial review should be remitted to
the UT for a substantive hearing. However, the nature of the issue – i.e.,
essentially, whether NA’s human rights claim is arguable – is such that it follows
from my reasoning that the substantive application also would inevitably
succeed, and I would accordingly be minded to order now that the certificate be
quashed so that NA can proceed with an in-country human rights appeal. I
would, however, be prepared to consider any representations about that course
before making a final order.
SUMMARY
158.
I am conscious that the discussion and analysis in the previous 157
paragraphs is very elaborate. In case it is of assistance to practitioners and
others I will give a short summary of my reasoning on the points of possible
wider application raised by these appeals. But I emphasise that any summary of
this kind carries the risk of being over-broad and omitting important
subtleties, and on any point of difficulty it is necessary to go back to the
detailed reasoning. Since I understand that the judgment is agreed by Floyd
and Irwin LJJ I will refer to my conclusions as those of the Court:
(1) In deciding by what
route a decision to remove someone on the basis that they cheated in a TOEIC
test can be challenged, the starting-point is to establish whether the decision
was made under the 2014 Act regime or its successor. (If it was made prior to
20 October 2014 it will fall under the old regime, and if it was made after 5
April 2015 it will fall under the new regime; in between those dates the
position depends on the effect of the applicable commencement and transitional
provisions.)
(2) If the decision falls
under the old regime it will have been taken under section 10 of the 1999 Act in
its unamended form. The person affected by the decision will generally have a
right only to an out-of-country appeal, under section 82 of the 2002 Act, read
with section 92 (1): they will not, except by unusual chance, have a right to
an in-country appeal under the “human rights claim” provision of section 92 (4),
because they will not typically have made such a claim prior to the removal
decision: see para. 15.
(3) What the Court holds
in part (A) – see in particular paras. 72-98 – is that an out-of-country appeal
is not an effective remedy where (a) it would be necessary for the appellant to
give oral evidence on such an appeal and (b) facilities for him or her to do so
by video-link from the country to which they will be removed are not
realistically available. It accordingly holds, subject to (4) below, that
persons against whom such a decision is made will be entitled to challenge the
decision by way of judicial review; that is so whether or not their article 8
rights are engaged. In reaching that conclusion the Court follows the approach
of the Supreme Court in Kiarie and Byndloss to what are substantially
similar circumstances and distinguishes its previous decisions in Mehmood
and Ali and Sood. The Court finds that both conditions were
satisfied in the present cases and observes that condition (a) is likely to be
satisfied in TOEIC cases generally (see para. 91) and that in typical cases
condition (b) is likely to be satisfied also (see para. 90).
(4) Notwithstanding (3),
the Court at para. 99-127 accepts that in principle permission to proceed by
way of judicial review could be refused if the person in question could achieve
an equivalent remedy by an in-country human rights appeal under the 2014 Act
regime, subject to the Home Secretary’s power to certify the claim as wholly
unfounded. But such a remedy would only be equivalent if the three conditions
identified at para. 116 above are satisfied, which they were not in these
cases.
(5) Part (B) of the
judgment concerns a challenge to the certification of a human rights claim in a
particular case to which the 2014 Act regime applies. The Court finds that the
certificate is liable to be quashed. The decision does not directly depend on
the issue of whether the Appellant cheated in his TOEIC test, but the Court
makes some observations about the appropriateness of certification where that
is the determinative issue: see para. 156.
(6) The judgment also
discusses the authorities on the extent to which the article 8 rights of
students may be engaged by their removal prior to completion of their studies (see
paras. 84-88) and the obligations of the Secretary of State to facilitate
return in cases where a person who has been removed is successful in an
out-of-country appeal (see para. 133).
Lord Justice Floyd:
159.
I agree.
Lord Justice Irwin:
160.
I also agree.
