R Debashis Saha Linda Saha v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey,Rintoul |
| Judgment Date | 21 November 2016 |
| Neutral Citation | [2017] UKUT 17 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 21 November 2016 |
[2017] UKUT 17 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review
Notice of Decision/Order/Directions
The Honourable Mr Justice McCloskey, President and Upper Tribunal JudgeRintoul
Having considered all documents lodged and having also considered the submissions of Mr M Iqbal, of counsel, instructed by Jinnah solicitors on behalf of the Applicants and Mr S Kovats QC and Mr C Thomann, of counsel, instructed by the Government Legal Department on behalf of the Respondent at a hearing, conjoined with two related cases ( infra), conducted on 01, 02, 04 and 16 August 2016 and 19 December 2016.
R (on the application of Saha and Another) v Secretary of State for the Home Department (Secretary of State's duty of candour)
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(I) It is impossible to overstate the importance of the duty of candour in judicial review proceedings. Any failings by the Executive in this respect threaten the guarantees upon which judicial review is founded and are inimical to the rule of law.
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(II) A failure by the Executive to conduct judicial review proceedings with the necessary degrees of candour, efficiency and attention compromises the ability of its legal representatives to discharge their ethical and professional duties.
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(III) All of the aforementioned duties are encompassed within an overarching obligation of good faith rooted in respect for the rule of law.
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(IV) Failings of this kind may be reflected in various ways, including how the judicial exercise of discretion in the matter of costs is performed.
The Tribunal having identified certain common and inter-related issued in this case, the judicial review case of Mohammad Mohibullah (JR/2171/2015)1 and the statutory appeal of MA v Secretary of State for the Home Department (IA/39899/2014)2, a decision was made to hear these three cases together. Having battled against every increasing and profoundly frustrating odds, the panel has at last reached the stage of delivering the third of its three judgments in these conjoined cases in which the delivery of judgments was originally scheduled for August 2016. In passing, we dismissed the statutory appeal of Mr MA and allowed the judicial review challenge of Mr Mohibullah.
(1) The background to the growing number of judicial review challenges and statutory appeals in the field to which these two cases belong in relation to action taken on behalf of the Respondent, the Secretary of State for the Home Department (the “ Secretary of State”), frequently in the form of refusing to extend leave or cancellation of leave, relating to the scores purportedly obtained by some 30,000 foreign students in “TOEIC” English language proficiency tests. It is set out in extenso in SM and Qadir (ETS – Evidence – Burden of Proof) [2016] UKUT 229 (IAC) and in general terms in R (Gazi) v Secretary of State for the Home Department (ETS-Judicial Review) (IJR) [2015] UKUT 327 (IAC) at [2] – [4], which need not be reproduced here.
(2) As explained in R (Mahmood) v Secretary of State for the Home Department [2014] UKUT 439 (IAC), at [1] cases belonging to this sphere:
“… have gained much currency during recent months, stimulated by action taken on behalf of the …… Secretary of State …. in the wake of the BBC “Panorama” programme broadcast on 10 February 2014.”
As further explained in Mahmood, “ETS” denotes Educational Testing Services –
“… a global agency contracted to provide certain educational testing and assessment services to the Secretary of State”.
In all of these cases the impugned decision of the Secretary of State is based upon an assessment that the TOEIC Certificate of the person concerned was procured by deception.
(3) Permission to apply for judicial review was refused initially on the papers, by Order dated 11 January 2016. An oral renewal application followed, giving rise to an inter-partes hearing and an Order of Upper Tribunal Judge Allen, dated 21 April 2016, granting permission to apply for judicial review. This order incorporated a series of case management directions, the first whereof stated:
“The Respondent …. must file and serve detailed grounds, or where appropriate additional grounds, for contesting the application …. and any written evidence, or, where appropriate, additional evidence, within 3 days from the date this decision was sent.”
This discrete direction and the others contained in the Order were a reflection of the timetable then prevailing which was geared to an early, expedited hearing scheduled for early May 2016. Other directions fixed time limits for the provision of skeleton arguments. Another of the directions stated:
“Where there are genuine and compelling grounds for seeking any modification of any of the above directions, these must be communicated in writing to the Tribunal and the other party or parties at the earliest possible date, accompanied by an appropriate request for application and (where relevant) any agreement between the parties on the modification.”
A further direction specified that any interlocutory application of any kind be filed and served not later than 7 days before the scheduled hearing date (06 May 2016).
(4) The direction relating to detailed grounds of defence may be juxtaposed with the AOS (with summary grounds of defence) dated 12 October 2015, which included the following passage:
“The Respondent submits that the claim is not reasonably arguable for the reasons set out herein and that permission should be refused. If permission is granted, then the Respondent reserves the right to amend and/or expand upon the arguments set out below, in Detailed Grounds of Defence.”
The substantive hearing which was arranged for 06 May 2016, regrettably, disintegrated. The Secretary of State's case was in disarray at this stage. Further directions and orders, on that date and subsequently, had to be issued: five in total during a period of some 10 weeks. During this period there were three further listings before the Tribunal for case management and interlocutory purposes. In tandem, there was progressive disclosure of documents by the Secretary of State and ETS. Furthermore, the process whereby the three expert witnesses were seeking to agree and refine the issues was advancing.
(5) The skeleton argument provided on behalf of Mr and Mrs Saha on 29 April 2016, in compliance with the first set of case management directions, made clear, consistent with their judicial review claim form, that the basis of their challenge to the Secretary of State's decisions was Wednesbury irrationality. This was repeated when, in compliance with a direction addressed to all parties, these Applicants provided a “Position Statement” approximately one month in advance of the re-scheduled trial date.
(6) This regrettable excursus into procedural matters has been rendered necessary by the following facts and considerations:
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(a) No detailed grounds of defence were, in the event, served on behalf of the Secretary of State.
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(b) The substantive hearing, was conducted on 01, 02 and 04 August 2016.
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(c) The submissions of Mr Iqbal on behalf of Mr and Mrs Saha were made on the third of these three days.
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(d) The riposte of Mr Kovats QC, on behalf of the Secretary of State, was that he was taken by surprise by Mr Iqbal's submissions.
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(e) The Tribunal, while making no ruling on the merits of Mr Kovats' submission, having reached the end of the third of the three scheduled hearing days, opted for the pragmatic course of directing that Mr Kovats' submission in reply be provided by close of business the following day.
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(f) Within the time limit directed, the Secretary of State's legal representatives proceeded to serve and lodge the written submission directed. This was accompanied by new evidence, not authorised by any direction of the Tribunal and not previously served or, indeed, foreshadowed in any way. This included Mr Saha's TOEIC Certificates, provided for the first time. The other items consisted of an Excel spreadsheet purportedly depicting Mr Saha's TOEIC test scores: undated and unsigned and unaccompanied by any witness statement; a new witness statement of a Home Office employee dated three days before these hearings began; an “Operation Bodger Progress Report” – redacted, unsigned and undated; and a new witness statement of another Home Office employee, prepared on the day following the completion of the hearings. The latter statement purports to be expert opinion evidence. It contains, inter alia, averments which are sweeping, generalised and unparticularised. All of these new materials were simply served and lodged. They were unaccompanied by any explanatory witness statement or letter. Moreover, there was no accompanying application to vary the Tribunal's previous directions. Nor was there any application to have the new evidence admitted.
(7) Given the extensive procedural history rehearsed above, these post-hearing developments were startling. Moreover, they occurred in circumstances where the Tribunal had announced during the hearing (which ended on 04 August 2016) its intention to circulate, in all three cases, draft embargoed judgments by 11 August 2016 and to list the cases for hand down purposes on 16 August 2016. This timetable was demolished as a result. The Tribunal was, instead, put to the trouble of formulating and issuing still further directions, dated 07 August 2016 (see Appendix 1), making a formal ruling, with further directions (Appendix 2) and issuing still further directions (Appendix 3).
(8) Following the events detailed in [6] – [7] above, a progressively deafening silence, bilaterally, developed. Neither party...
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