R Hom Bahadur Thapa v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Helen Mountfield |
| Judgment Date | 11 March 2014 |
| Neutral Citation | [2014] EWHC 659 (Admin) |
| Docket Number | Case No: CO/1232/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 March 2014 |
[2014] EWHC 659 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Mountfield QC
Sitting as a Deputy High Court Judge
Case No: CO/1232/2013
Michael Biggs (instructed by Sam Solicitors) for the Claimant
Matthew Barnes (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 28 February 2014
Helen Mountfield QC:
The issues
The Claimant in this case is a young Nepalese man who came to this country in 1999 but is now faced with administrative removal on the basis of directions made under section 10(1)(a) Immigration & Asylum Act 1999 (IAA 1999).
This is an application for judicial review of the decision taken on 28 January 2013 by an immigration officer on behalf of the Defendant to make those directions, in exercise of her discretion under section 10(1)(a) IAA 1999, and also a decision to remove the Claimant from the jurisdiction and to return him to Nepal. The claim as advanced before me now proceeds on two grounds. (I am told that there is an outstanding application for permission from the Court of Appeal in relation to another ground on which permission was refused, but I say no more about that). As Mr Justice Walker observed in his order of 31 October 2010, the amended grounds raise points of considerable importance which extend beyond the facts of the present case. On the day of the hearing, I indicated that I would allow the application for judicial review, but reserved my reasons.
A preliminary issue was raised by the Defendant as to whether this was an apt case for me to exercise my discretion to consider the issues in an application for judicial review. It was said that there is an apt and obviously more suitable alternative remedy in an out-of-country appeal to the First Tier Tribunal (FTT).
The Claimant submitted that the issues in this case were apt for resolution in an application for judicial review, because they go not to the factual or legal merits of the decision taken under section 10(1)(a) IAA 1999 (as to which he accepts that an out of country appeal to the FTT is the apt remedy, other than in a sufficiently exceptional case), but to a prior stage of the decision-making process, namely, whether to make a decision under section 10 at all.
The Claimant in this case accepts that the decision-maker formed a view that he was working in breach of a visa condition (though he denies it and says that the officer was mistaken). His legal challenge is to decision-maker's assumption that a perceived breach led automatically to the making a direction for removal under section 10(1)(a) IAA 1999, thereby triggering only an out-of-country appeal; alternatively unfairness of the process through which that decision was taken.
It is common ground that as a matter of law, an immigration officer has a discretion as to the use or otherwise of s10 IAA 1999. The practical importance of this discretion is that if she or he exercises it so as to make directions for removal, the only right of appeal enjoyed by a person such as the Claimant is an out of country appeal to the FTT. That is the consequence of s82(2)(g) Nationality Immigration & Asylum Act 2002 (NIAA 2002), to which I shall return. Apart from the obvious procedural and costs difficulties which this causes (in terms of marshaling factual evidence as to contested facts; seeking access to a video link), it is obviously disruptive to a person such as the Claimant who is presently studying in this country. By contrast, if a perceived breach of conditions of permission to remain is dealt with by the curtailment route under the Immigration Act ( IA 1971), this triggers an in-country right of appeal to the FTT under s82(2)(e) NIAA 2002. As I shall explain, these are two distinct routes of appeal and there is no overlap, and no circumstances in which the appellant has any election as to which route to follow. Although it was pointed out in the case of SSHD v Lim [2007] EWCA Civ 773 that the difference between the success rates of the two routes is not very great, it was accepted by the Court of Appeal in that case that the in-country route has obvious advantages so far as the potential appellant is concerned, not least in being able to give evidence live without needing a video-link, and avoiding the disruption and potentially significant costs of return following removal if, ultimately, an appeal is successful. The means by which the choice is made by the Defendant as to which route of appeal is triggered is therefore potentially significant.
The Claimant's case, in short, is that the fact of a discretion triggers a duty to exercise it, and be seen to do so, fairly and rationally. This includes giving adequate reasons, and acting consistently with the Secretary of State's approach to illegal entrants, and with published policies set out in s7 and 50 of the Home Office's Enforcement Instructions & Guidance. He also submits that fairness requires that the Defendant should convey to the Claimant the basis for exercising her discretion to make directions for removal under s10 IAA 1999 rather than following the curtailment route. There is no evidence that the decision-maker in this case recognized that there was any discretion as to whether or how to enforce, and if, despite the absence of evidence to this effect, there was any exercise of discretion, the Claimant says she exercised it unfairly.
The Defendant submitted that it is an obvious corollary of the statutory scheme that the normal route for dealing with a person caught breaching conditions of his leave to remain is a direction under s10 IAA 1999; that whilst there is a discretion to act via the curtailment route, there is no duty specifically to make mention of the exercise of discretion when making a decision to enforce under s10 IAA 1999; that what fairness demands by way of reasons is context-specific; and that the duty to give reasons at the point of making a s10 decision is limited, since an out-of-country appeal is the primary route envisaged for challenge of a removal decision. She also submitted that the Claimant did in fact receive a sufficient gist of the reasons for the decision to enable him to understand it.
Before addressing the rival contentions on these propositions, I must set out the facts and the law.
The facts
The facts may be relatively shortly stated. The claimant is a Nepalese national who is now 24 years old. He entered the UK lawfully on 4 October 2009 under the terms of a valid student visa. On 22 January 2011, he was granted further leave to remain on a Tier 4 (General) student visa, which was valid until 31 December 2011. Under the terms of that leave, the Claimant was entitled to work for up to 20 hours a week during term time, and for unlimited periods of time out of term time. I understand that he exercised his limited right to work by working in the kitchen at the Royal Nepalese Restaurant in South East London.
On 30 December 2011, the Claimant applied for further leave to remain as a Tier 4 (General) student. This application was granted on 18 February 2012, with further leave to remain until 22 June 2013, but this time without permission to work. Thus, at the relevant time, the Claimant was lawfully present in the United Kingdom, but could not lawfully engage in any work here.
The incident which gives rise to the present challenge occurred on 28 January 2013. The Claimant was in the Royal Nepalese Restaurant. He says, in his witness statements of 31 January 2013 and 29 October 2013 that he was there visiting friends, with whom he used to work when he had a visa which permitted this, and was not himself working. There are conflicting accounts of what happened in the Royal Nepalese Restaurant on 28 January 2013. The Claimant says he was talking to his friends, and not working. He says that he became flustered by being questioned by immigration officers, but they are wrong to consider from his manner he was being evasive.
The Defendant's case is that they believed him to be working illegally in the Royal Nepalese Restaurant. The first detailed evidence of this is set out in the witness statement of 12 June 2013, made by Maggie Khay, who is a UKBA Officer who attended the Royal Nepalese Restaurant on 28 January 2013 as part of an arrest team. She does not suggest that she herself saw the Claimant working. She says that on that day, she entered the kitchen area where a fellow immigration officer, a Mr Murray, was escorting the Claimant away from the preparation and cooking area. There is no direct evidence from Mr Murray. Ms Khay reports that she was told by him that he had seen the Claimant cutting up meat in the kitchen. She did not interview the Claimant under caution. Nonetheless she highlights what she regards as various inconsistencies and evasions in the Claimant's statements to her. She says that she asked a co-worker, Sanjeev Lamsal, if the Claimant worked in the restaurant and he said that Claimant had worked there for over a year. (I am not a tribunal of fact, but I note that there is a statement in the bundle from Mr Lamsal dated 20 October 2013, in which Mr Lamsal says that he told the officer that he used to see the Claimant during working hours 'some time in late 2011' – ie over a year ago. There is a similar statement from a Mr Bhandari who also worked at the restaurant, dated 23 October 2013).
This is the evidential basis upon which it was decided that the Claimant was...
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