R Islam v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Michael Fordham |
| Judgment Date | 14 December 2017 |
| Neutral Citation | [2017] EWHC 3614 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 December 2017 |
| Docket Number | CO/3340/2017 |
[2017] EWHC 3614 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Michael Fordham QC
(Sitting as a Deputy Judge of the High Court)
CO/3340/2017
APPEARANCES
Mr J McLanachan (instructed by Direct Access) appeared on behalf of the Claimant.
Mr T Fisher (instructed by the Government Legal Department) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
Introduction
The claimant in these judicial review proceedings came to the United Kingdom in July 2002 with a student entry clearance. In the years since then he obtained repeated grants of leave to remain. He has subsequently married, and he and his partner now have two children who were born here in 2012 and 2016. The final of the many applications for leave to remain that was made, and granted, was an application dated 19 th November 2011. That application was accompanied by a language certificate dated 18 th October 2011. That certificate recorded the claimant's success in oral and written English language tests conducted at an institution known as Elizabeth College.
On 25 th August 2012, the claimant sought indefinite leave to remain (ILR) based on the length of his UK residence. That application was granted on 7 th May 2013. The current position is that the claimant remains entitled to ILR. There is no document before the court which records or indicates that the Secretary of State is intending revocation or considering revocation of the ILR. Mr Fisher, on behalf of the Secretary of State, confirmed that that was his understanding, although of course what she considers and does in the future is a matter for the Secretary of State.
On 14 th November 2014, the claimant applied for naturalisation to be recognised as a British citizen. That application was refused by the Secretary of State on 15 th January 2016 in what I will call “Decision Letter No. 1”.
In order to understand the context of that refusal, it is helpful to quote from R (Abbas) v Secretary of State for the Home Department [2017] EWHC 78 (Admin) [2017] 4 WLR 34 at para.5. As the judge in that case recorded, but as is equally applicable here:
“This is the latest in a long line of cases arising from action taken by the Secretary of State in the wake of a BBC ‘Panorama’ programme broadcast in February 2014. That programme revealed that there had been widespread fraud in the taking of language tests provided by an entity called Educational Testing Services (ETS), a non-profit organisation based in the United States. The fraud principally consisted of the taking of tests by a person other than the person named on the certificate as subsequently issued. Following the programme ETS reviewed all of the tests taken at centres in the UK. The conclusion of the review process was that many thousands of tests had been taken by someone other than the person named on the certificate. ETS provided the results of its review to the Secretary of State. The Claimant's test was one of those identified as fraudulent by ETS …”
Quoting from the same case at para.10, the judge helpfully there describes the two-stage review test undertaken by ETS:
“After the Panorama programme the review conducted by ETS was in two stages. First, all voice tests from UK test centres were assessed by voice recognition technology. These assessments led to a very large number of tests being considered to be suspect. Second, all suspect tests were analysed by ETS staff trained in voice recognition analysis. Every suspect test was analysed by two ETS staff acting independently. Only if both analysts confirmed that the test was an example of an individual having taken tests in place of many candidates was the test deemed to be invalid.”
Arising from that two-stage test, itself the subject of a witness statement in other proceedings by a Mr Millington in June 2014, there came into being and available to the Secretary of State a tool known as the Lookup Tool. Exhibited in these proceedings to a witness statement of a Mr Edwards is a page taken from that Lookup Tool which records in the case of the claimant that the two tests which he had taken had been assessed to be invalid.
Decision Letter No.1 informed the claimant that:
“ETS has a record of your speaking test using voice verification software. ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker.”
The letter went on to explain that the test scores had now been cancelled by ETS; that on the basis of the information provided to her by ETS, the Secretary of State was satisfied that the certificate was fraudulently obtained, and that the claimant used deception in the application of 19 th November 2011. The letter went on that the claimant's complicity in fraud contributed to an extremely serious attack on the maintenance of effective immigration controls and the public interest and explained that the application had been refused “as the Secretary of State cannot be satisfied that you meet the good character requirement for naturalisation.” Finally, Decision Letter No.1 said this:
“If you believe the decision to refuse your application was not soundly based on nationality law, policy or our procedures and you wish it to be reconsidered, you must complete form NR and pay a fee.”
The claimant did request reconsideration and that request led to an adverse decision dated 26 th September 2016 (“Decision Letter No.2”). It is Decision Letter No.2 which is the trigger and focus for this claim for judicial review. Three grounds are advanced, with the permission and upon directions of His Honour Judge Wood QC, given on 3 rd October 2017.
Procedure
The claimant submits that there has been procedural unfairness in this case. The starting point is that Decision Letter No.1 is said to have been a decision that was incompatible with common law standards of procedural fairness. Three points are made in particular: first, that it was unfair that the claimant had not been alerted to an adverse impression against him so that he could deal with it; second, that documents said to support the decision were never disclosed during the decision-making process; and thirdly, that the claimant should have been interviewed and allowed to make oral representations.
I accept that, viewing the decision in Decision Letter No.1 in isolation, and if it stood alone, it would be a decision incompatible with procedural fairness standards, so far as the first of those three matters is concerned. I do not accept that the second or the third can be invoked as constituting unfairness.
In R (Thamby) v Secretary of State for the Home Department [2011] EWHC 1763 (Admin), Sales J, as he then was, analysed the position so far as procedural fairness and naturalisation applications are concerned. He explained at para.40 that the claimant has a right to have his application fairly considered under the statutory scheme. At para.66 he approved, as echoing previous Court of Appeal authority in Fayed [1998] 1 WLR 763, the observations of Blake J in MH [2008] EWHC 2525 at paras.41 and 42. As Blake J had there put it:
“[T]he principle of common law fairness … would be satisfied where a gist of the issues of concern would enable the claimant to make sensible submissions before an adverse decision is reached … The essence of the requirements of fairness in this context is an effective opportunity to disabuse the decision maker of some decisive adverse consideration.”
As Sales J himself put it (at para.67):
“[W]here the indication available in the materials available to an applicant when he makes his application does not give him fair notice of matters which may be treated as adverse to his application, and hence does not give him a reasonable opportunity to deal with such matters, fairness will require that the Secretary of State gives more specific notice of her concerns regarding his good character after she receives the application, by means of a letter warning the applicant about them, so that he can seek to deal with them by means of written representations …”
Sales J added this (at para.72):
“I consider that where the Secretary of State considers there is material which might support a conclusion that there has been a deliberate attempt to deceive her, she should draw that material and her concerns to the attention of the applicant and give him an opportunity to make written representations to address her about them.”
It is those passages and that principle, in my judgment, that would support the first of the three matters that are relied on.
So far as the second and third matters are concerned, Blake J, in the passage that Sales J cited at para.65 of Thamby, said this:
“Full disclosure of underlying documents or statements is unlikely to...
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