R Mohd. Nawaz v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | John Freeman,Upper Tribunal |
| Judgment Date | 20 June 2017 |
| Neutral Citation | [2017] UKUT 288 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 20 June 2017 |
[2017] UKUT 288 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
on an application for JUDICIAL REVIEW
Upper Tribunal Judge John Freeman
Counsel for the applicant: Barnabas Lams
Counsel for the respondent: Natasha Barnes
R (on the application of Nawaz) v Secretary of State for the Home Department (ETS: review standard/evidential basis)
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(a) Deception in ETS cases is not a question of precedent fact, except in particular circumstances, for example those in Abbas [2017] EWHC 78 (Admin) .
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(b) There is no fundamental right to study in a foreign country; nor for children to be there with their would-be student parents; nor can a different standard of review fairly be applied in these cases to applicants with and without children.
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(c) It follows that the standard of review in all such cases is on ordinary judicial review principles, requiring fair consideration, bearing in mind both the potentially serious effects of deception findings in general, and the requirements of effective administration.
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(1) no anonymity direction is made, except as follows, unless specifically stated.
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(2) persons under 18 are referred to by initials, and must not be further identified.
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(d) Oral or other evidence of an applicant's English-language skills or attainments is unlikely to have any decisive effect in judicial review proceedings on the fairness of the decision under challenge, for the reasons given in Habib (JR/1260/2016) [20], and those at [21].
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(e) Evidence obtained by use of the Look-up Tool, and subject to the human verification procedure, is an adequate basis for the Secretary of State's deception finding in these cases, in the light of Flynn & another [2008] EWCA Crim 970 [24 – 27], and the evidence of both Dr Harrison and Professor French.
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(f) The lack of visible note-taking by the human verifiers does not provide any ground of challenge to the decision as insufficiently transparent, where there has been an offer (whether accepted or not) to provide a copy of a voice recording for analysis.
This is an application for judicial review of the decision of the respondent on 18 March 2016, to curtail leave to remain as a student for a citizen of Pakistan, born there on 25 November 1981. The respondent took the view that the applicant had engaged in deception by getting a certificate from a TOEIC [Test of English for International Communication], administered by ETS [Educational Testing Services], and later reported by them as having been taken for him by a proxy. This certificate was not used in any application for leave to remain. The decision letter did not give details of when or where the test had been taken; but the supplementary decision letter of 5 September 2016 says it was on 19 September 2012 at Elizabeth College (in London).
As it happened, this case came on straight after I had handed down my judgment in Ranjit Kaur (JR 8997-15), a copy of which is attached to this. I had provided copies for counsel in this case too, and made it clear to them that I was not prepared to go over the same ground again; but I would, and did consider any new evidence or arguments put forward.
The material put forward by Mr Lams fell into two main parts:
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a. proposed oral evidence by the applicant himself, and an argument based on Manchester City Council v Pinnock [2010] UKSC 45 as to why I should admit it; and
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b. challenges to the reliability of the respondent's evidence, based on what Mr Lams said were unresolved contradictions between Dr Harrison and Professor French (see Ranjit Kaur for an introduction), and on Flynn & another [2008] EWCA Crim 970.
The application to file a witness statement by the applicant (8 May 2017) was very late indeed (26 May), and Mr Lams did not apply to call him to give oral evidence till the start of the hearing; but I made it clear that I should not refuse to consider the proposed contents, so far as they seemed reasonably capable of being decisive. At the same time I allowed Miss Barnes to put in a statement by Adam Sewell, which provides an explanation for one of the points made by the applicant. Neither counsel opposed this course.
The applicant's further statement gave details of how he had passed an IELTS English-language test in 2008: however he had failed a TOEIC test in speaking and writing in December 2011, but passed in January 2012. On 19 September that year he had sat both speaking and writing tests at Elizabeth College, and he gives details of how he got there; on 23 October he had sat the listening and reading tests at Colwell College in Leicester. He says he passed the speaking and writing at Elizabeth College on 19 December, presumably meaning that was when he got the results, and also passed the listening and reading.
However, the applicant said, he had never sat the TOEIC test at Colwell College on 16 November 2011, still less given his date of birth for that as 7 May 1978, as the Home Office claimed. These details did not come from the decision letter, or the further letter of 5 September, but from a statement previously filed by Mr Sewell. His further statement explains that the 19 September 2012 tests at Elizabeth College had provided a date of birth exactly matching the applicant's; but the 16 November test at Colwell College had not, and had been included in his evidence by a mistake on his own part.
There was more to Mr Sewell's further evidence; but, as this point was not pursued before me by Mr Lams, realistically in the light of it, I need not go into it any further. What Mr Lams did pursue was the applicant's suggestion that, in the perhaps not entirely idiomatic words of his statement:
The Home Office allegations are false. I am a highly education individual and very competent in the English language. Before I came to the UK I had passed IELTS exam which is more tough than the TOEIC examination.
The applicant says he had completed an MBA at the University of Cardiff, and was studying for a PhD at Bolton when his leave was curtailed. Similar scenarios have featured in a number of previous ETS cases, including Habib (JR/1260/2016), briefly referred to in Ranjit Kaur. I had not dealt with that decision in any detail at all, partly because it could not help the applicant in that case, and partly because it had not been reported, or permission to cite it obtained.
However, though there is nothing so far to show that Habib has been reported, I note the terms of the Presidential Guidance Note of 2011, no 2, as updated from time to time:
14. Judgments of the Chamber on applications for judicial review (following grant of permission) in immigration judicial review proceedings 3 are automatically given a neutral citation (which includes the letters “IJR”) and reported, without keywords or italicised summary.
Though this does not seem to have happened yet with Habib, clearly it will; so Miss Barnes did not require permission to cite it. I shall return to the relevant parts in due course.
Mr Lams's argument on Pinnock is that the circumstances of this applicant's case required a higher standard of review, in terms of the spectrum discussed in Ranjit Kaur, because, as the decision letter itself had made clear, the decision involved the best interests of his child or children. The applicant's son is named in the letter before claim, though no date of birth or further details have been given there or since; nor was permission granted on anything to do with this point. However, the duty under s. 55 of the Children Act to consider his best interests is acknowledged in the decision letter, and so I shall consider Pinnock in the light of that.
Mr Lams took me straight to paragraph 74 of Pinnock:
In summary. Where it is required in order to give effect to an occupier's article 8 Convention rights, the court's powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view.
However, as so often, the background to that statement of principle needs to be considered. Mr Pinnock was the occupier of a house let him on a secure tenancy by the local authority, where he lived with his partner and some or all of their five children. Because of his family's behaviour, previous County Court proceedings had resulted in a ‘demotion of tenancy order’ under the Housing Act 1996. Since further proceedings were taken by the local authority within a year of this order, that provision entitled them to serve a notice seeking a possession order, subject to a statutory review by them. Unless this procedure had not been followed, the Court was then obliged to make the order sought.
That was the background against which the County Court judge in the current proceedings had decided (see paragraph 19 of the Supreme Court judgment) that his rôle was “limited to conducting a conventional judicial review”, and did not extend to resolving factual disputes. The local authority's decision to serve a notice within the time limited by the demotion order might be regarded as a condition precedent to the court's obligation to grant possession.
That was the legal basis on which Mr Lams argued that I should consider the facts of this case and hear evidence for myself. He did not go so far as to suggest that I should consider the best interests of the applicant's son for myself, and, in view of the basis on which judicial review was sought and permission granted, could not have done so; but he did argue that, because those interests were likely to be seriously affected by the decision under challenge, that decision needed to be...
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