M.d.m.h. (bangladesh) For Judicial Review Of Adecisions Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2014] CSOH 143 |
| Published date | 19 September 2014 |
| Court | Court of Session |
| Date | 19 September 2014 |
| Docket Number | P197/14 |
OUTER HOUSE, COURT OF SESSION
[2014] CSOH 143
P197/14
OPINION OF LORD JONES
In the petition
MDMH (BANGLADESH)
Petitioner;
for
Judicial review of decisions of the Secretary of State for the Home Department
Petitioner: Forrest; AN Solicitors
Respondents: Pirie; Office of the Advocate General
19 September 2014
Acting on behalf of the Secretary of State for the Home Department, an immigration officer decided that the petitioner was liable to be removed from the UK. The petitioner had a right of appeal out‑of‑country, but applied, instead, for judicial review of the decision. The petition was dismissed on the ground that the petitioner had not exhausted the alternative procedure.
Introduction
[1] The petitioner is a national of Bangladesh. On 11 February 2014, the Secretary of State for the Home Department (“SSHD”) issued a decision that he was liable to be removed from the United Kingdom and, on 18 February 2014, she issued a direction for his removal on 1 March 2014. Both decisions are challenged in these proceedings and the petitioner asks the court to reduce each of them. The respondent avers in his answers to the petition that, when first orders were granted in this case, the SSHD cancelled the removal directions and that, the date for removal having passed, there is no practical need now to reduce that decision.
[2] The case came before me on 1 and 2 July 2014 for a preliminary hearing on the respondent’s first plea in law, which is to the effect that the petition should be refused, because the petitioner has an alternative statutory remedy that is effective in the circumstances of his case.
[3] The issues which fall to be resolved are (i) whether the petitioner has an alternative statutory remedy, the existence of which bars recourse to the court’s supervisory jurisdiction; and, if so, (ii) on what legal basis are proceedings barred.
The factual background
[4] The following narrative is based on the petitioner’s averments which are admitted by the respondent. On 2 August 2009, the petitioner was granted leave to enter the UK and to remain until 31 August 2012, in order to study at Edinburgh School of Business. He entered the UK in September 2009 and began his studies. On 6 August 2012, the petitioner applied to the SSHD for further leave to remain in the UK, on the basis of his successful application to St Agnes College in Essex to undertake an approved course of study there. He was granted leave to remain until 30 November 2014. The SSHD revoked St Agnes College’s sponsor licence and, on 16 October 2013, the petitioner received a letter from the SSHD advising him that his leave to remain in the UK was to be curtailed as at 15 December 2013. He was told that, before that date, he was either to leave the UK or submit a fresh application for leave to remain. On 13 December 2013, he submitted such an application, on the basis that the London College of Business Management and Information Technology (“the London college”) had agreed to sponsor him for a course of study which had started on 1 December 2013 and was to last until 30 November 2015.
The area of dispute on the facts
[5] It is averred on behalf of the petitioner that, in February 2014, he was living at an address in Edinburgh. That is admitted by the respondent, but the reason for the petitioner’s doing so is disputed. The petitioner avers that he was unable to attend the beginning of his course at the London college because (i) he was awaiting the SSHD’s decision on his application for leave to remain and (ii) he was unwell. The respondent denies these averments and avers that the petitioner was required by the London college to attend an induction day in London on 11 February 2014 at 9:30 am. At 8 am on that date, immigration officers found the petitioner at the Edinburgh address. Other occupants present told the officers that the petitioner had been living there for the previous “couple of years”. He was arrested, taken to a police station and interviewed under caution. In their respective pleadings, the petitioner and the respondent give conflicting accounts of what was said during the interview.
The decision of 11 February 2014 and grounds of challenge
[6] Following the interview, the petitioner was notified that he was regarded as a person in respect of whom removal directions may be given, in accordance with section 10(1)(b) of the Immigration and Asylum Act 1999 (“the 1999 Act”), being a person who used deception in seeking leave to remain in the UK. The statement of reasons communicated to the petitioner was in the following terms:
“You are specifically considered a person who has used deception in seeking leave to remain in the UK. You have submitted an application to the Home Office to study for an ACCA qualification at (the London college). The course was due to start on 01-12-2013. During an interview under caution, you could not give any details relating to the course you were studying or the location of the college. You further could not provide details for where your accommodation was in London.
You have been unable to give any credible information with regards to the course you are studying.
You also admitted that the previous visa you applied for to study at St Agnes College was purely for obtaining leave to remain in the UK not to study at the college. As such you have used deception in seeking your leave to remain and have therefore breached Section 10(1)(b) of the Immigration and Asylum Act 1999, an offence under Section 24A(1)(a) of the same act.”
(The quote is accurate.)
[7] The petitioner asserts that the SSHD erred in law, because her decision is irrational. The essence of his complaint is summarised in these averments:
“Clear and unequivocal evidence of deception is required before a decision that a person is liable to be removed can rationally be reached… the evidence before the immigration officers on 11 February 2014 that the petitioner had been guilty of deception was neither clear nor unequivocal.”
Relevant statutory provisions
[8] As is noted in paragraph [2] of this opinion, the respondent argues that there is a statutory remedy open to the petitioner, the existence of which bars recourse to judicial review. There is no dispute about what are the relevant statutory provisions. Section 82(1) of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) provides that, where an immigration decision is made in respect of any person, he may appeal to the First-tier Tribunal (“FTT”). The term “immigration decision” is defined to include a decision that a person is liable to be removed from the United Kingdom by way of directions under, among other provisions, section 10(1)(b) of the 1999 Act, i.e. as a person who has used deception in seeking leave to remain. Section 92(1) of the 2002 Act provides 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 section 92 applies. Section 92 does not apply to an appeal against immigration decisions of the kind which are under challenge in the present application. (Section 92(2)) It was common ground between the parties, therefore, that the petitioner has a right of appeal against the decision that he is liable to removal, which must be exercised, if at all, after he has left the United Kingdom.
[9] Rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 230) provides that the tribunal may give directions to the parties relating to the conduct of any appeal. The rule gives wide powers to the tribunal for regulating its own procedure. Mr Pirie, who appeared for the respondent, drew attention, in particular, to the provision that directions may provide for a hearing to be conducted or evidence given or representations made by video link or by other electronic means.
Submissions for the respondent
[10] Mr Pirie opened his argument by referring to one English and two Scottish authorities. These were:
R (Lim and another) v Secretary of State for Home Department (2007) EWCA 773; [2008] INLR 60 (“Lim”);
McGeogh v Electoral Registration Officer, Dumfries and Galloway 2011 SLT 633 (“McGeogh”); and
M v Secretary of State for the Home Department 2014 SLT (“M”).
Later, in the course of his submissions, he cited McGinty v Scottish Ministers 2014 SC 81.
[11] Counsel for the respondent relied particularly heavily on the English decision. As in this case, Lim concerned non-United Kingdom nationals who had entered the country lawfully and who were made the subject of a removal direction under section 10 of the 1999 Act. The reason for the SSHD’s decision in that case, however, was that Mr Lim had breached a condition of his leave to remain. Notwithstanding that Mr and Mrs Lim had an out-of-country right of appeal, on the same statutory basis as the present petitioner, the Administrative Court gave permission to apply for judicial review. At the trial of a preliminary issue, the judge held that the alternative remedy of an out-of-country appeal did not provide adequate protection against the possibility that the removal decision was unlawful. The Court of Appeal held that the lower court should have declined to entertain the claim, on the ground that the claimants had an effective remedy in the form of a right of appeal out-of-country.
[12] In light of Mr Pirie’s reliance on McGeogh and Lim, there was some discussion about the legal basis on which the court might hold that the existence of an alternative statutory remedy barred resort to the supervisory jurisdiction of the Court of Session. The question was whether the court has a discretion to entertain an application for judicial review where such a remedy exists and has not been exhausted. More is said about that later in this opinion.
[13] Counsel then set out the circumstances in which the decision of 11 February was taken, drew attention to the terms of the pleadings and cited the relevant...
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