R Immigration Law Practitioners, Association v Tribunal Procedure Committee and Another
| Jurisdiction | England & Wales |
| Judge | Professor Christopher Forsyth |
| Judgment Date | 09 February 2016 |
| Neutral Citation | [2016] EWHC 216 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 February 2016 |
| Docket Number | Case No: CO/2884/2015 |
[2016] EWHC 216 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Professor Christopher Forsyth
(Sitting as a Deputy Judge of the High Court)
Case No: CO/2884/2015
& CO/2883/2015
The Queen on the application of
and
Shivani Jegarajah (instructed by Direct Access) for the Claimants
William Hansen (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 9 December 2015
Approved Judgment
Introduction
These applications for judicial review are made by two claimants who are married to each other and are nationals of India. Claimant One (PRIYANKA ANN JOSHI) has been in the United Kingdom since September 2005 with entry clearance as a student while Claimant Two (DINY THOMAS) has been in the United Kingdom since May 2008 with entry clearance as a student dependent. Claimant One (with Clamant Two as her dependent) in the years since 2005 made various applications for leave to remain. The details of these applications need not concern us, save to remark that Claimant One has succeeded in obtaining both a bachelor's and a master's degree from UK universities in the period since 2005. Some of the applications for leave to remain were refused but at no time were the couple in the UK without leave to remain.
On the 26 th June 2014 with her existing leave to remain due to expire on the 14th July 2014, Claimant One made a further application for leave to remain in order to undertake PhD Studies at Bradford Regional College. The claimants must have expected this application for leave to remain to be granted but some time thereafter (on the 25 th September 2014) that college's sponsor licence was revoked by the Secretary of State. This meant that Claimant One was no longer in possession of a valid "Confirmation of Acceptance for Studies" from a licensed college which was necessary for further leave to remain as a student to be granted.
In these circumstances UK Visas and Immigration wrote to Claimant One on the 5 th January 2015 stating that Claimant One's application (of the 26 th June 2014) would be suspended for sixty days, i.e. until the 6th March 2015 so that she could "withdraw her application, submit a fresh application in a different category, leave the UK or obtain a new Tier 4 sponsor". Claimant One attempted to find a new Tier 4 sponsor, i.e. a university that would accept her for PhD studies, but failed to do so within the 60 days allowed.
As the end of the 60 days suspension approached and with it her leave to remain in the UK, Claimant One made a further application. This was an application for leave to remain in the UK in a category not covered by other forms. In this application, made on the 4 th March 2015, she sought an extension of her leave to remain on the ground that she needed more time to find another college sponsor for her PhD. But she also prayed in aid her medical condition (hypothyroidism and sinus tachycardia) and, significantly, said this: "…I would like to apply under other purposes not covered by Immigration Law and under my rights to private and family life guaranteed by article 8 of ECHR [and I] request that you grant me leave to remain in the UK for a period which you deem fit and appropriate in my circumstances."
UK Visas and Immigration responded to this application in a letter of the 1 st May 2015 explaining that Claimant One already had an application under consideration (the application of the 26 th June 2014). In accordance with published guidance the previous application would be treated as varied and would not be considered further.
There thus remained only the application of the 4 th March 2015 to be determined. The decision on this application was made on the 6 th May 2015 but it was only served on Claimant One on the 11 th June 2015. That decision was to refuse the application and, in addition, to certify the human rights claim made in it as "clearly unfounded". This meant that any appeal against the refusal was "out of country" (Nationality, Immigration and Asylum Act 2002, section 94(1)). The Claimants had to leave the UK before they could appeal against the decision of the 6 th May. (In fact, the Immigration Act 2014, section 15 has removed the right of appeal against decisions of this type (and replaced it with "administrative review" under the Immigration Rules) but the right of appeal of persons in the Claimant's position is preserved by the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2771) articles 9 and 11.)
Since the decision of the 6 th May 2015 had not yet been served on them the Claimants were taken wholly by surprise when at 6.15am on the 11 th June 2015 the UKVI carried out an "enforcement visit" at the Claimants' home. The Claimants were detained in obviously stressful circumstances. They were served with both the letter refusing the application of the 4 th March 2015 (the date on the decision letter being changed in manuscript from the 6 th May to the 11 th March). In the interests of clarity I shall refer to this as the decision of the 6 th May, since that was the day on which it was made. The Claimants were also served with removal notices on the 11 th June.
Procedural history of the applications for judicial review
On the 18 th June 2015 the judicial review claim form was filed with the Claimants still in detention. An interim relief hearing was ordered by Picken J on the 19 th June and it took place on the 26 th before Patterson J. Although an acknowledgement of service had been filed by the Secretary of State this did not come to the attention of the court. The Secretary of State was not represented by counsel. The Claimants were ordered to be released and a stay on their removal until the outcome of the applications for judicial review was ordered.
The applications for permission came before Cranston J on the 27 th July 2015 who did not grant permission but ordered that the two applications be joined and determined at a "rolled up" hearing in the special circumstances of the case. That "rolled up" hearing took place on the 9 th December 2015 before me.
General Analysis
Although the decision in respect of which judicial review is sought is stated in the claim form to be "the Decision of the Secretary of State for the Home Department to remove the First Claimant and her Dependent dated 11/6/15 [i.e. the removal directions] and unlawful detention" (section 3 of the Claim Form) the claimants' actual "Grounds upon which permission is sought" reveals a rather broader attack. In particular the Claimants allege that the decision of the 6 th May 2015 (refusing the application for further leave of the 4 th March) amounted to an abuse of power and was thus a nullity; and, although not put in quite this way by the claimants, if the decision of the 6 th May was a nullity, then the Claimants continued to have leave to remain under section 3C of the 1971 Act (this provides for the "automatic" extension of leave pending a variation decision; section 3C is will be explained in para 27 below). They were thus, so the Claimants' argument ran, not over stayers and the removal orders were improper.
One undeniable fact dominates these proceedings. The Claimants as nationals of India have no right to be in the United Kingdom unless they had valid leave to remain. In the absence of such leave they are liable to be removed and taken into detention pursuant to that end. And by the 11 th June 2015, the only possible ground on which the Claimants would have leave to remain would be if the decision of the 6 th May 2015 to refuse the application of the 4 th March was invalid or a nullity. This thus emerges as the primary issue for decision.
But the claim form also claims relief for "unlawful detention". This will then be the second issue to determine in this judgment. The claim for unlawful detention is essentially a private law claim but it was never pleaded as such and oral evidence was not led and tested by cross examination. But I have reached the conclusion (explained below) that the officers who took the Claimants into detention were protected by paragraph 16 (2) of Schedule 2 of the Immigration Act 1971; so it is not necessary to decide the private law issues.
The primary issue for decision: was the decision of the 6 th May a nullity?
If the decision of the 6 th May was invalid – as the Claimants assert – there must be shown to be some error or misconduct by officials prior to the decision being taken on the 6 th May 2015. The difficulty that the Claimants face is that the allegations of bad faith and abuse of power in paragraphs 25–27, 30–32 of the claimants' Grounds (and see also Claimant One's witness statement) all relate to the conduct of the immigration officers who carried out the enforcement visit on the 11 th June 2015. The officers were said to be "extremely rude" and accused the claimants of lying when they said that they were awaiting a decision on their outstanding application. This was clearly a fraught and difficult occasion. And it is unfortunate to say the least that the occasion led to the first Claimant having a two panic attacks necessitating medical treatment. But none of this touches, or can touch, the validity of the decision of the 6 th May.
Then the allegation is also made by the Claimants that service of the decision of the 6 th May was suppressed in order to deny the Claimants' access to the...
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