R (on the Application of Islam) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Silber |
| Judgment Date | 10 October 2016 |
| Neutral Citation | [2016] EWHC 2491 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2016 |
| Docket Number | Case No: CO/144/2016 |
[2016] EWHC 2491 (Admin)
Sir Stephen Silber (Sitting as a High Court Judge)
Case No: CO/144/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Biggs (instructed by Universal Solicitors) for the Claimant
Catherine Rowlands (instructed by GLD) for the Defendant
Hearing date: 20 September 2016
Introduction
Foreign Nationals seeking leave to remain in the United Kingdom as Tier 4 (General) Students have to prove an adequate aptitude in speaking and writing in English to acquire the requisite number of points so as to be granted leave to remain. They achieve this by obtaining the Test of English for International Communication ("TOEIC") certification. The Claimant, who is a national of Bangladesh, obtained this certification and thereby obtained leave to remain, but the Secretary of State for the Home Department ("the Secretary of State") was subsequently informed by the Educational Testing Service ("ETS") that an anomaly with the Claimant's speaking test indicated the use by the Claimant of a proxy and his test was therefore deemed "invalid". In consequence, the Secretary of State has exercised her powers to take steps to order the Claimant's removal.
The Claimant challenges the decision of the Secretary of State dated 12 February 2015 to give directions under section 10 (1) (b) of the Immigration and Asylum Act 19991 ("the 1999 Act") for his removal from the United Kingdom. He also seeks to challenge the allegation of deception brought against him as the issued IS.151A alleges that the Claimant is "specifically considered a person who has sought leave to remain in the United Kingdom by deception following information provided to us by the Educational Testing Service (ETS), that an anomaly with you (sic) speaking test indicated the presence of a proxy test taker".
Permission to pursue this application was granted by HH Judge Cooke QC after this application had been transferred from the Upper Tribunal.
In summary, the Secretary of State contends that this judicial review claim should be dismissed as it cannot succeed because there is an adequate alternative statutory remedy to redress his complaints available to the Claimant in the form of an out-of-country appeal which is prescribed in section 92 of the 1999 Act, which is set out in the Appendix to this judgment.
Mr Michael Biggs, counsel for the Claimant, contends that the time for considering whether there is an adequate alternative remedy available to the Claimant was at the permission stage, but permission was nevertheless granted even though the Secretary of State had contended in her Summary Grounds of Defence the alternative remedy point. So he submits that the alternative argument issue was dismissed when permission was granted and so the judicial review claim should proceed without any need to consider any further the adequate alternative remedy point. Ms Catherine Rowlands, counsel for the Secretary of State, submits that it is still open for the Court at the subsequent substantive hearing to dismiss the judicial review application on the basis that there is an alternative remedy available to the Claimant and that judicial review is a remedy of the last resort. I will return to consider this issue in paragraph 19 below.
Mr. Biggs contends that even if that submission is correct, there are still "special or exceptional factors" which mean that such an appeal is not an adequate alternative remedy available to him with the consequence that the judicial review application should proceed. This is strongly disputed by Ms Rowlands.
The Background to this Claim
The Claimant entered the United Kingdom with leave to enter and remain as a Tier 4 (General) Student on 2 September 2009 in order to study. He duly achieved an Edexcell level 5 BTEC diploma. On 27 December 2012, he applied for leave to remain as a Tier 4 (General) Student and in support of his application, he submitted the TOEIC certification following a test said to have been sat by the Claimant on 19 June 2012 in order to show that he met the English language requirement imposed by the Immigration Rules.
The significance of this certification was that in order to obtain leave to remain as a Tier 4 (General) Student, an applicant had to prove an adequate aptitude in speaking and writing in English to acquire the requisite number of points. Because he had obtained the TOEIC certification, the Claimant's application was successful and so on 11 March 2013, the Claimant was granted leave to remain as a Tier 4 (General) Student until 28 May 2014. In April 2014, the Claimant applied for further leave to remain in order to study for the degree of a Master of Business Administration at the University of Sunderland and he was given further leave to remain until 28 August 2015.
During the currency of that leave to remain, the Claimant was served with the letter dated 12 February 2015 which is the subject of the present claim and which explained that the Secretary of State had decided to remove the Claimant from the United Kingdom on the grounds that the Claimant had cheated on his TOEIC. An 1S151A Part 1 form was sent to the Claimant giving formal notice of the removal decision. It is this decision and this notice, which are the subject matter of the present application.
The inquiry leading to the decision that the Claimant had cheated followed a BBC 1 Panorama documentary broadcast on 10 February 2014 and which disclosed a major problem with the administration of English language tests for the purpose of making applications for leave to remain by ETS. At ETS English language test centres, tests were undertaken by persons subject to immigration control in order to establish their English language aptitude. The BBC investigation revealed, by the use of covert recording devices, that there was significant and widespread fraud in the taking of such tests.
In particular, oral English tests set by ETS taken via a computer link were sat not by the actual candidate, but were taken instead by 'proxy' test takers. In a written Parliamentary answer on 14 July 2014, Mr James Brokenshire M.P., a Home Office Minister, said that enquiry was ongoing, but that the analysis to that date suggested that there were more than 29,000 invalid results and more than 19,000 questionable results from tests administered by ETS in the United Kingdom.
Following the Panorama broadcast, ETS had undertaken a review of the validity of test scores awarded by it at various test centres in the United Kingdom. The Secretary of State's evidence explained that this review involved examining recordings of the candidates' answers in the 'speaking' elements of the test. When voice recognition software indicated that the same voice had been used for a number of tests, the test results were flagged as suspicious. They were then separately verified by two members of ETS staff who had training in voice recognition. Only if the computer software and both human verifiers independently concluded that the same voice had been used, the test was held to be "invalid" on the basis that a proxy had been used.
On 20 June 2014, ETS informed the Defendant that a number of test scores had been cancelled as "invalid". A witness statement from Ms Susan Amissah, who is a litigation case worker employed by the Home Office, produced the ETS report which showed that the Claimant's score was "invalid" and therefore cancelled. The significance of the conclusion that the score was "invalid" is that it shows a higher degree of certainty than the conclusion sometimes found for invoking section 10, which was that a candidate's TOEIC was only "questionable".
The Issues
To understand the nature of the dispute, it is necessary to bear in mind in relation to the Claimant's desire to use judicial review to challenge the Secretary of State's decisions first, that deception has been used to obtain leave to remain and second, to remove that person that:
i) Judicial review "is always a remedy of last resort" per Baroness Hale in R (Cart) v Upper Tribunal [2012] 1 AC 663 at paragraph 19 (emphasis added);
ii) It is not the practice of the court to use the power of judicial review "where a satisfactory alternative remedy has been provided by Parliament" per Lord Phillips in R (Cart) v Upper Tribunal (supra) at paragraph 71;
iii) Section 92 of the Nationality, Immigration and Asylum Act 2002 provides that an out-of-country appeal is the appropriate remedy for those removed under section 10 of the 1999 Act;
iv) "…except when such 'special or exceptional factors' can successfully be invoked so as to give rise to a right to judicial review, the court must accept that an out of country appeal is regarded by Parliament as an adequate safeguard for those who are removed under s10 of the 1999 Act" (per Aikens LJ in RK (Nepal) v Secretary of State [2009] EWCA Civ 359 [33] (emphasis added) and quoted with approval by Beatson LJ giving the only reasoned judgment of the Court of Appeal in R (on the application of Mehmood and Ali) v Secretary of State (supra) at paragraph 51 and see also his comments at paragraph 49);
v) "The existence of disputes of fact are rarely likely to constitute 'special or exceptional factors'" ( R (on the application of Mehmood and Ali) v Secretary of State (supra) at paragraph 52 (emphasis added));
vi) "Matters of procedural fairness arise in many cases can, be considered in the appellate process, and are rarely likely to constitute 'special or exceptional factors'" R (on the application of Mehmood and Ali) v Secretary of State (supra) at paragraph 53 (emphasis added) approving Coulson J in R...
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