R Mohammad Mohibullah v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | McCloskey J,The Honourable Mr Justice McCloskey |
| Judgment Date | 12 October 2016 |
| Neutral Citation | [2016] UKUT 561 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 October 2016 |
[2016] UKUT 561 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review
The Honourable Mr Justice McCloskey, President and Upper Tribunal Judge Rintoul
Having considered all documents lodged and having also considered the submissions of Mr N Armstrong, of Counsel, instructed by Bindmans solicitors on behalf of the Applicant Mr S Kovats QC and Mr C Thomann, of Counsel, instructed by the Government Legal Department on behalf of the Respondent at a hearing conducted on 01, 02, 04 and 15 August 2016 and having considered the further written submissions on behalf of both parties completed on 01 November 2016.
R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC — ETS — judicial review principles)
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(i) Where there is a multiplicity of decision making mechanisms, some generating a right of appeal and others not, there is a public law duty on the decision maker to be aware of the options and to take same into account when opting for a particular mechanism.
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(ii) Where a Tier 4 Student is considered to have made false representations, thereby being liable to discretionary curtailment of leave and has been withdrawn from a course, thereby being liable to mandatory curtailment action there is a duty on the Secretary of State to consider both of the corresponding sections in the “Curtailment of Leave” policy guidance.
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(iii) A failure to give effect to policy guidance without justification is in breach of the Lumba principle and renders the ensuing decision vulnerable to being quashed.
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(iv) Where a curtailment of leave decision is underpinned by the Secretary of State's decision that leave to remain had been procured by deception, the appropriate standard of review is the Wednesbury principle rather than proof of the precedent fact of deception.
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(v) A decision which has a conspicuously unfair impact on the subject may qualify for condemnation as unreasonable, or irrational, in contravention of the Wednesbury principle.
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(vi) The student's knowledge of an allegation by ETS that he has procured his TOEIC certificate by deception will normally suffice to convey the gist of the case against him, thereby rendering the Secretary of State's decision making process (in this respect) procedurally fair.
| Chapter Number | Subject | Para Number |
| I | Introduction | (1) – (2) |
| II | The Broader Canvas | (3) – (4) |
| III | This Applicant's Challenge | (5) – (8) |
| IV | The Impugned Decision | (9) – (10) |
| V | The Blakehall College Issue | (11) – (31) |
| VI | First Ground of Challenge | (32) – (75) |
| VII | Second Ground of Challenge | (76) – (84) |
| VIII | Delay | (85) – (88) |
| IX | A Footnote | (89) – (92) |
| X | Omnibus Conclusion and Relief | (93) |
Appendix 1: Ruling on reception of evidence, dated 04 August 2016
Appendix 2: Further reception of evidence ruling, dated 05 August 2016
Appendix 3: Post – hearing Directions to the parties
“CAS”: Confirmation of acceptance for studies.
“ETS”: Educational Testing Services — the US corporation contracted to the Home Office to provide various services relating to English language testing and certificates.
“HTS”: Highly trusted sponsor status (from 6 April 2015, “Tier 4 sponsor status”), an accreditation given by the Home Office to certain approved institutions providing full time educational courses.
“IELTS”: International English Language Testing System.
“SELT”: Secure English Language Test.
“TOEIC”: Test of English for International Communication.
“UKVI”: United Kingdom Visas and Immigration, an agency of the Home Office.
(1) The hearing of this application for judicial review was conjoined with the related case of Saha (JR/10845/2015) and the statutory appeal in the case of MA v Secretary of State for the Home Department [2016] UKUT 450 (IAC) [39899/2014] as all three cases were considered to raise certain common issues. Judgment has been given in MA. On the date when judgment was to be promulgated in Saha, an unwelcome and unexpected evidential development on behalf of the Secretary of State intervened and, regrettably, those proceedings are not yet completed, and this judgment was delayed, in consequence: see further [92] infra.
(2) In the course of the hearing it became necessary for the Tribunal to make certain rulings ex tempore and, post-hearing, to promulgate certain directions. All are contained in the Appendices hereto.
(3) 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.
(4) 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, which is –
“ … 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.
(5) Mr Mohibullah is challenging the Secretary of State's decision, dated 18 December 2014, to curtail his leave to remain in the United Kingdom. This decision was made under paragraph 323A (a)(ii)(2) of the Immigration Rules (the “Rules”). His case is that this decision was impelled and dictated by the anterior decision, some four months previously, of the third level educational establishment where this Applicant was studying, Blakehall College, to withdraw him from his course consequential upon a communication from the Secretary of State's agents that he had procured his TOEIC Certificate by fraud.
(6) The first limb of this Applicant's ensuing legal challenge is that the Secretary of State's decision was unlawful as it evaded the statutory scheme under Section 10 of the Immigration and Asylum Act 1999 (the “1999 Act”) and/or paragraphs 321A and 323 of the Rules. In outline, the Applicant complains that the procedural protections enshrined within these provisions, including rights of appeal, were unlawfully circumvented by the course taken by the Secretary of State and were also in breach of the prevailing policy. The second limb of this Applicant's challenge is that the Secretary of State erred in law in concluding that he had engaged in deception on the ground that the precedent fact of deception had not been established. It is further contended that the decision was vitiated by procedural unfairness.
(7) At the outset we draw attention to one important agreed fact. It is accepted by the Applicant that the voice which is audible on the computerised voice files generated at the time when he supposedly underwent the speaking element of his TOEIC test is not his.
(8) The central elements of the Secretary of State's case are, first, the contention that the Wednesbury principle, rather than precedent fact, is the appropriate standard of review and that the impugned decision withstands this species of challenge; second, that the impugned decision is not vitiated by procedural unfairness; third, that there was no improper purpose in the communication with MM's college; and, finally, there was no illegality in pursuing the selected decision making course rather than making a curtailment of leave decision under the Immigration Acts and/or the Rules (both of which would have attracted a right of appeal). The final limb of the Secretary of State's case is that this Applicant's challenge is defeated by delay.
(9) The impugned decision of the Secretary of State is contained in a letter dated 18 December 2014. The operative passage therein is the following:
“ This decision has been made in line with the Immigration Rules and the Tier 4 policy guidance. You were granted leave to remain as a Tier 4 (General) student until 30 May 2015 in order to complete a course of study at Blakehall College. However, the Home Office was informed by Blakehall College on 13 August 2014 that you ceased studying with them. Home Office records have been checked and there is no evidence that you have made an application to change your sponsor or made a fresh application for entry clearance, leave to enter or leave to remain in the United Kingdom in any capacity. Therefore, as you have been excluded, or withdrawn from your course of studies, as notified by your Tier 4 sponsor, your leave is curtailed under paragraph 323A(a)(ii)(2) of the Immigration Rules until 21 February 2014.”
This letter was the impetus for these proceedings, which were duly initiated on 20 February 2015.
(10) The Applicant is a national of Bangladesh, aged 28 years. He has been lawfully present in the United Kingdom since 25 October 2009, following which he undertook...
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