R Abdul Hannan Sheikh v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Andrew Henshaw |
| Judgment Date | 31 January 2019 |
| Neutral Citation | [2019] EWHC 147 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1239/2017 |
| Date | 31 January 2019 |
[2019] EWHC 147 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Henshaw QC (sitting as a Judge of the High Court)
Case No: CO/1239/2017
Shahadoth Karim (instructed by Hafiz & Haque Solicitors) for the Claimant
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing date: 6 November 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Andrew Henshaw QC
Mr Andrew Henshaw QC:
| (A) INTRODUCTION | 2 |
| (B) BACKGROUND FACTS | 3 |
| (C) ISSUE 1: SERVICE OF DECEMBER 2015 REFUSAL | 6 |
| (1) Service of Refusal Letter: facts | 7 |
| (2) Service of refusal decision: law | 9 |
| (3) Discussion | 12 |
| (D) ISSUE 2: UNFAIRNESS/IRRATIONALITY | 14 |
| (E) ISSUE 3: POWER TO DETAIN | 16 |
| (F) ISSUE 4: LEGALITY OF CONTINUED DETENTION | 22 |
| (1) The law | 23 |
| (2) Application to the present case | 33 |
| (G) ISSUE 5: SENIOR COURTS ACT SECTION 31(2A) | 36 |
| (H) OVERALL CONCLUSIONS | 36 |
(A) INTRODUCTION
The Claimant challenges:
i) a decision by the Defendant on 7 February 2017 that the Claimant is liable to administrative removal as an overstayer, and
ii) his detention pending removal from 28 February 2017 to 9 August 2017 when he was released on immigration bail.
The issues can conveniently be summarised as follows:
i) whether the Defendant's decision of 4 December 2015 rejecting the Claimant's application for further leave to remain, made on 27 August 2013, was validly served on the Claimant on or about 10 January 2016 (as the Defendant says) or only on or shortly after 16 February 2017 (as Claimant says);
ii) whether the Defendant has acted unfairly or irrationally, including by not issuing a “ 60-day letter” giving the Claimant the opportunity to find a new sponsor before refusing his further leave application;
iii) whether the Defendant had the power to detain the Claimant on 28 February 2017;
iv) whether the Claimant's detention was unlawful as being contrary to public law as expressed, in particular, by the Hardial Singh principles; and
v) if the Defendant did act unlawfully in any respect, whether no relief should be granted on the basis that it is highly likely that the outcome for the Claimant would not have been substantially different (section 31(2A) of the Senior Courts Act 1981).
(B) BACKGROUND FACTS
The Claimant was born in September 1976 and is a national of Bangladesh. He arrived in the United Kingdom on 29 April 2007, with an entry clearance as a student, valid from 1 April 2007 to 1 April 2009. The Claimant was subsequently granted successive extensions in his leave to remain as a student until 28 February 2014. However, on 10 April 2014 his leave to remain was curtailed so to expire on 27 August 2013.
The Claimant applied on the same date, 27 August 2013, for further leave to remain as a Tier 4 (General) Student. He enrolled with Barking and Dagenham College and obtained a Certificate of Acceptance for Studies. However, shortly therefore the College was removed from the register of sponsors register, and informed the Claimant of this. The Claimant says he was advised by the college to wait for a ‘60 day’ letter, i.e. a notification from the Defendant giving him 60 days to find an alternative college place or to arrange his departure from the UK.
The Claimant's evidence is that on 8 August 2014 he changed his address through the Defendant's online system and, having received no confirmatory email, on 15 August 2014 he telephoned the Defendant to confirm the change of address. The reason for the change was his move from 38 West Road, London to a flat in Siege House, Sydney Street, London.
Over a year later, on 16 November 2015 the Claimant's then legal representatives, UK Legal and Immigration Experts Limited (“ UKLIE”), wrote to the Defendant enclosing a letter of authority from the Claimant and requesting a 60-day letter. The letter stated that the College had in December 2013 advised the Claimant to complete certain forms and send them to the Defendant, which the Claimant had done; and that the College advised the Claimant to away a 60-day letter from the Defendant. UKLIE's letter further stated:
“On 08/08/2014 our Client states that he updated his correspondence/home address (last known address) through online using Home Office change of address guidance. On 15/08/2015 [sic] he called Home Office and took confirmation from them regarding his change of address. He confirms that till date he has not received any correspondence from Home Office.”
The Defendant's evidence is that the Claimant's August 2013 application for further leave to remain was refused on 4 December 2015. A decision letter bearing that date (“ the Refusal Letter”) gives three reasons for the refusal:
i) that the Claimant relied on a fraudulent TOEIC English language test certificate in support of his application, which therefore fell to be refused under Paragraph 322(1A) of the Immigration Rules;
ii) that the Claimant's educational institution, Barking and Dagenham College, as at the date of the decision was not on the Tier 4 register of licenced sponsors, so that the Claimant was not entitled to any points under Appendix A to the Immigration Rules; and
iii) that the Claimant was not entitled to any points for maintenance under Appendix C to the Immigration Rules.
The Refusal Letter also stated that a decision had been made to remove the Claimant from the UK by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006, to which I refer further in § 72 below.
The Defendant's evidence is that the Refusal Letter was sent by recorded delivery (reference number 6511 6608 0GB) to Fairah and Co Solicitors, PO Box 572, Brentford, Middlesex, TW8 1AF in December 2015; that it was returned undelivered, marked “ no such address” on 8 January 2016; and that it was the same day re-sent by recorded delivery (reference number 6511 6619 5GB) to the Claimant's last known residential address, namely, 38 West Road, London, E15 3PY.
On 29 April 2016 the Defendant replied to UKLIE's letter of 16 November 2014 stating:
“Unfortunately, we cannot issue a curtailment notice to your migrant, as the leave the migrant submitted an application for on 27 August 2013 to study at Barking and Dagenham College has never been granted. Therefore, no[] curtailment letter will be issued as there is no leave to be curtailed.”
The Claimant's new solicitors, Hafiz & Haque, wrote to the Defendant on 25 May 2016 requesting her to reconsider her position and issue the Claimant with a 60-day letter in order to “ regularise his immigration status”. Hafiz & Haque wrote to the Defendant again on 22 June 2016 to similar effect.
The Defendant on 18 July 2016 issued a “ Notice of Removal”, stating inter alia:
“You are a person with no leave to enter or remain in the United Kingdom (UK). You have not given any reasons as to why you should be granted leave to remain or why you should not require leave to remain. Therefore you are liable for removal.
…
A decision has been made to curtail/revoke your leave so that it expires with immediate effect. The following reasons are given:
…
You entered the United Kingdom on 29/04/2007 with a multi entry student visa valid until 01/04/2009. You applied and was granted a further five student visas with the last expiry of 28/02/2014. On 28/06/2013 your leave was curtailed and given a new expiry date of 27/08/2013. You have not made any successful further applications to the Home office to regularise your stay in the United Kingdom. On 18/07/2016 you were encountered working illegally at Love 2 Laundry … You have therefore breached Section 10(1)(a) of the Immigration and Asylum Act 1999. (As amended by the Immigration Act 2014.)”
The notice gave a removal window of 3 months from 21 July 2016.
Hafiz & Haque responded to this notice (and to a letter from the Defendant dated 18 July 2017, presumably serving the notice) on 21 July 2017, inviting the Defendant to withdraw it. Their letter included the following:
“The documents which have been given by Mr Sheikh show that his previous application is still pending. Home Office did not make any decision regarding his previous matter. He states that he has been in touch with Home Office regularly and made up to date his correspondence and till date he did not receive any correspondence from you.
We refer to your letter of 18 July 2016. On that day he was encountered by Home Office alleging that he was working illegally … Our client denies all alleged allegations made by HO as he states that he was there to visit his friend Mr … who is the owner of that shop. …”
On 7 February 2017 the Defendant issued a “ Notice of Removal Window” referring to the July 2016 notice, providing fresh notice of a new removal window, and including a One Stop Notice under section 120 of the Nationality, Immigration and Asylum Act 2002. The Claimant states in his witness statement (and his pre-action protocol letter) that this was given to him by hand.
On 11 February 2017 the Defendant wrote to the Claimant notifying him that he was to be removed from the United Kingdom to Bangladesh on 28 February 2017.
The Claimant's solicitors sent a pre-action protocol letter to the Defendant on 13 February 2017, to which the Defendant responded on 16 February 2017 maintaining his position and setting out the Defendant's account of events. It is common ground that, on the same day or very shortly thereafter, the Defendant provided to the Claimant's solicitors a...
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