R Kalluri v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 21 October 2015 |
| Neutral Citation | [2015] EWHC 4073 (Admin) |
| Date | 21 October 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8493/2012 |
[2015] EWHC 4073 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Lang
CO/8493/2012
The Queen on the Application of
Mr Z Malik appeared on behalf of the Claimants
Ms C Patry appeared on behalf of the Defendant
The Claimants seek orders for judicial review in respect of two matters. First, the Defendant's decisions to remove them from the United Kingdom. Second, the Defendant's failure to return the Claimants' passports and other personal documentation.
At the outset of the hearing, I granted the Claimants permission to amend their claim form to challenge the decisions to remove, made pursuant to the Defendant's decision letter of 7 November 2013, which superseded the decisions to remove made on 18 May 2012 against which the claim was originally brought.
The issues in the claim have, to some extent, evolved during the hearing following discussions in court and now are as follows:
(1) Whether, as submitted by the Defendant, this court ought to decline to decide Ground 1, namely the lawfulness of the removal decisions, because the Claimants have an alternative statutory remedy by way of appeal to the First Tier and Upper Tribunals, which they have exercised and continued to seek to exercise.
(2) If, as the Claimants submit, this court ought to determine Ground 1:
(a) can the Defendant establish, on the requisite standard of proof, that their leave to enter and remain was obtained as a result of deception by the husband and father of the Claimants, Mr Aredla; and
(b) on a proper construction of section 10 of the Immigration and Asylum Act 1999 (the IAA 1999), was it open to the Defendant to make decisions to remove the Claimants without first serving directions for removal in relation to Mr Aredla?
(3) Ground 2: is the Defendant's continued retention of the Claimant's passports and other documents unlawful?
Statutory Framework
The decisions to remove were made pursuant to Section 10(1) of the IAA 1999, the material parts of which provide that a person who is not a British Citizen may be removed from the United Kingdom in accordance with directions given by an immigration officer if, under subparagraph (b), he uses deception in seeking leave to remain or, under subparagraph (c), directions have been given for the removal under this section of a person to whose family he belongs.
Subsection 8 provides that where a person is notified that a decision has been made to remove him in accordance with section 10, any leave to enter or remain previously given is invalidated.
At the relevant time, Sections 82(1) and 82(2)(g) of the Nationality Immigration and Asylum Act 2002 (the NIAA 2002) conferred a right of appeal to the tribunal against an immigration decision that a person is to be removed from the United Kingdom by way of directions under Section 10(1).
History
The First Claimant is Mrs Sandhya Kalluri. The Second and Third Claimants are her two young children, born on 7 August 2006 and 15 February 2010 respectively. All three of them were born in India and are Indian nationals.
The First Claimant was given leave to enter the UK in about 2002 as the dependent spouse of her husband, Srinath Reddy Aredla, who had a work permit in the UK. Mr Aredla and all three Claimants were granted indefinite leave to remain on 10 December 2007.
Mr Aredla pleaded guilty to conspiracy to defraud the Defendant on 18 May 2012, on the basis of his involvement in fraudulent tier one applications. He was sentenced to six and a half years' imprisonment, and so he was automatically liable to deportation under the UK Borders Act 2007.
In the course of the criminal investigation following his arrest in August 2011, evidence emerged which led the Defendant to believe that Mr Aredla had gained leave to enter the UK as a work permit holder by deception, giving false information about his employer and his business address. The Defendant therefore served him with a form IS151A notice that he was liable to removal and, on 30 March 2012, he was served with an IS151A part 2 decision to remove. There was an out-of-country right of appeal.
On 18 May 2012, the Claimants were also served with IS151A liability to removal notices and IS15A part 2 decision to remove notices on the basis that they were the family members of someone who had obtained leave by deception. They too have an out-of-country right of appeal.
The Claimants issued their application for judicial review on 3 August 2012 on two grounds. Under their first ground, they alleged that the notices were invalid because they did not personally obtain leave to enter or remain by deception under section 10(1)(b) of the IAA 1999, and subparagraph (b) and subparagraph (c) of Section 10(1) did not apply because Mr Aredla had not yet been served with removal directions. They also alleged that the first Defendant had not proved to the required standard that Mr Aredla had obtained leave to enter and remain by deception. In the alternative, the Claimants submitted that they should have been afforded an in country right of appeal. Their removal would engage Article 8 ECHR, as they had been resident in the UK for a number of years and removal would prevent them from visiting Mr Aredla in prison.
Their second ground was that the seizure and retention of their identity documents was unlawful and contrary to Article 8 ECHR.
The Defendant responded by letter on 28 September 2012, stating that, in the light of the human rights claims raised, she was willing to reconsider their case and invite them to withdraw their claim. Copies of their passports were returned to them.
On 7 April 2013, counsel for the Claimants filed a response stating that the Defendant's offer was insufficient since they sought the right to appeal to the First Tier Tribunal and to have the decisions to remove quashed. By this stage, the children's birth certificates had been returned and copy passports but not the original passports.
On 10 July 2013, Deputy High Court Judge Gill granted permission to apply for judicial review on both grounds. She also considered it arguable that a tribunal appeal would not be an adequate alternative remedy.
The Defendant did reconsider their cases and issued a fresh decision on 7 November 2013. In summary, she concluded that:
(1) their leave to remain was cancelled with effect from 18 May 2012;
(2) they were not entitled to leave to remain under the Immigration Rules.
(3) their removal would not be in breach of Article 8, particularly since there was no intention to set removal directions until Mr Aredla was deported;
(3) on consideration of the evidence, the Defendant was satisfied that Mr Aredla gained leave to enter and to remain by deception;
(4) applying the Court of Appeal's judgment in RJ (India) v the Secretary of State for the Home Department [2012] EWCA Civ 1865, Section 10 of the IAA 1999 did not require a sequential serving of notices and decisions to remove under Section 10. Although actual removal of a family member under subparagraph (c) could only take place after removal directions had been given to the principal, this only applied to the implementation of the decision to remove.
(5) in the light of the human rights claims raised by the Claimants, they would be afforded an in country statutory right of appeal.
(6) the 2012 IS151A Part 2 notices were withdrawn.
In relation to point (4) in the Defendant's letter, I do consider that RJ (India) provides the answer to the point relied upon by the Claimants in this case.
On 11 November 2013, the Defendant served notices of decision to remove, IS151B, on each of the Claimants with an in country right of appeal. The Claimants duly exercised their rights of appeal to the First Tier Tribunal (FTT).
The FTT hearing took place on 3 November 2014. The Claimants did not attend and were not represented, and there is an issue as to whether or not they were properly notified.
In a decision promulgated on 23 February 2015, the FTT dismissed the appeals for the following reasons: (i) there was sufficient evidence upon which the Defendant could properly conclude that Mr Aredla had used deception to obtain leave to enter and remain; (ii) under Section 10 IAA 1999, the Defendant had power to give directions for the removal of the Claimants on the basis they were members of his family; (iii) removal of the Claimants would not be in breach of Article 8.
The Claimants appealed against this decision, on the grounds that the hearing should not have proceeded until after the judicial review claim had been determined, and also that the FTT had erred in the conclusions it had reached.
Following the usual procedure for application for permission to appeal, the application was first considered by a judge of the FTT. On 30 April 2015, the judge of the FTT refused permission to appeal concluding that the grounds disclosed no arguable material errors of law:
"It is not arguable, as submitted in the grounds that the Judge erred in:
(a) proceeding to hear the appeals before the Judicial Review application against the removal decision was concluded because the Respondent's reasons for refusal letter dealt with all issues covered by the JR application and were matters that were within the jurisdiction of the Tribunal.
(b) accepting the assertions made in the reasons for refusal letter as to the...
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