R (on the Application of Mohamed Bilal Jan) v Secretary of State for the Home Department (Section 10 Removal)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice Bean,Mr C M G Ockelton,Latter,Latter UTJ,Bean J,C M G Ockelton
Judgment Date30 May 2014
Neutral Citation[2014] UKUT 265 (IAC)
Date30 May 2014

[2014] UKUT 265 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

Before

THE HONOURABLE Mr Justice Bean

Mr C M G Ockelton, VICE PRESIDENT

UPPER TRIBUNAL JUDGE Latter

Between
R (On the Application of Mohamed Bilal Jan)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Applicant : Mr Z Nasim, instructed by Mayfair, Solicitors

For the Respondent: Mr Z Malik, instructed by the Treasury Solicitor

R (on the application of Mohamed Bilal Jan) v Secretary of State for the Home Department(section 10 removal) IJR

  • 1. In assessing whether there is a proper basis for a challenge to a decision to remove an applicant, as a matter of general principle a decision will not be unlawful simply on the basis that there has been a failure expressly to explain why other options were not followed. However, there may be cases when an issue is raised before the decision is made relating to the course to be followed or to a particular mitigating circumstances relating to the applicant where that should be expressly considered in the decision.

  • 2. A statutory appeal exercisable out of country is regarded by Parliament as an adequate safeguard for those who are removed under s.10 of the Immigration and Asylum Act and in the absence of special or exceptional factors judicial review is not the appropriate remedy: R (on the application of Lim v Secretary of State for the Home Department [2007] EWCA Civ 773 ; R Nepal v Secretary of State for the Home Department [2009] EWCA Civ 359.

  • 3. The First-tier Tribunal has jurisdiction to consider issues of procedural fairness and the lawfulness of the exercise of discretion when deciding to make a removal decision under the ground of appeal permitting a challenge on the basis that the decision is “otherwise not in accordance with the law”.

1

This is a claim for judicial review challenging the respondent's decision of 26 July 2013 to remove the applicant from the UK under the provisions of s.10 of the Immigration and Asylum Act 1999 (“the 1999 Act”). Permission was refused on the papers on 16 January 2014 but following an application for oral reconsideration was granted on 24 March 2014 on the basis that properly arguable issues arose in the light of the judgment in Thapa v Secretary of State for the Home Department [2014] EWHC 659 (Admin).

The Background
2

The applicant is a citizen of Pakistan who arrived in the UK on 12 February 2011 with valid leave to enter as a Tier 4 (Migrant) Student until 14 June 2012, when he made an in-time application for further leave to remain in the same capacity on 14 June 2012 but his application was refused on 17 January 2013. He appealed against that decision successfully and he was granted further leave to remain until 3 November 2013 with a condition that he take no work except a work placement.

3

On 26 June 2013 he was encountered at a hairdresser's in Ilford working, so the respondent alleges: that would be a breach of the conditions attached to his leave to remain. He was detained and interviewed. He was, on the respondent's account, served with a notice of liability to removal (IS151A) and a notice of an immigration decision (IS151A part 2). The first notice notified the applicant that he was a person in respect of whom removal directions may be given in accordance with s.10 of the 1999 Act as a person who had failed to observe conditions of his leave to enter or remain. The statement of reasons set out on the form is as follows:

“You are specifically considered a person who has worked in breach of your conditions as a Tier 4 Student because you were encountered working today and you were granted leave to remain as a Tier 4 Student from 3 July 2013 to 3 November 2013 with conditions restricting you to no work.”

4

The second notice informed the applicant that a decision had been taken to remove him from the UK and that he was entitled to appeal the decision under s.82(1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) but only after he had left the UK. He then sought legal advice and his solicitors made representations on his behalf asserting that he had not breached the conditions of his leave and that his current detention was unlawful (letters of 29 July 2013, 13 August and 22 August 2013).

5

On 24 September 2013 the judicial review claim form was filed. The details of the decision to be judicially reviewed at section 3 assert that it is an ongoing matter and the decision has not been served on the applicant or his representatives. A mandatory order is sought that the refusal/decision is served. However, the grounds raise further issues and challenge the respondent's decision to cancel the applicant's leave to remain as a student without giving him a right of appeal whilst in the UK.

6

The grounds argue firstly that the applicant was not served with the notice of decision and also assert that the respondent erroneously concluded that he was working in the UK in breach of his conditions. It is argued that the applicant was merely observing the trade of hairstyling as he has an interest and a fondness for it. It is then argued that the respondent failed to follow her own policy as set in the IDIs at chapter 50.6, that there was no firm evidence of the applicant working in breach of his conditions and that any breach was not of sufficient gravity to warrant removal. The second ground argues that the respondent erred by failing to give the applicant an in-country right of appeal and that an out of country appeal is not an effective remedy. It is then argued that the respondent acted disproportionately in exercising her discretion to take removal proceedings rather than refusing the application with a right of appeal on curtailment. It is further argued that the decision is flawed for want of service and that there was a failure to consider article 8 properly.

7

The grounds are supported by a witness statement from the applicant in which he agrees that he was present at the hairdresser's on 26 June 2013 but says that he went to see a friend who was working there and that he had always had a desire to learn hairstyling and cutting; he had asked the owner if he could observe at the shop; the owner had no issue with this and permitted him to do so once or twice a week. He denies that he was working.

8

At the hearing before us a further witness statement was submitted dated 4 April 2014. The applicant confirms that he was present at the hairdressers on 26 July 2013 but says that he was not cautioned or given any sort of warning that he was being formally interviewed. On his account, after the immigration officers came into the shop, he was asked his name and he gave his full name and date of birth. He was then asked to place his fingers in a biometric impression reader and did so. He was asked how many days he worked, how many hours and for how long but he confirmed that he did not work there but was observing. He mentioned that he attended the shop two days a week and had been doing so for the past two weeks. He asserts that he was not with a customer or cutting anyone's hair as claimed by the respondent and that he had never breached the conditions of his leave to remain. He says that following his arrest, he did not receive the notices of his liability to removal or of the immigration decision.

9

His evidence is in direct contradiction with the evidence now filed on behalf of the respondent. There is a witness statement from an immigration officer saying that when she and other officers went into the hairdresser's, there was one male employee, the applicant, with two customers. He was interviewed under caution and when asked how often he worked here he replied “two days a week, Friday and Saturday.” When asked how many hours he worked, he said “between 9.30 to 14.30 / 15.00”. When asked how much he was paid he said “I don't get paid I get paid in food”. He was asked how long he had worked there and he said he started two months ago. When was asked how the training related to his studies, he replied that after studies he worked, he loved the work. According to the witness statement, the applicant then finished off dealing with the customer, took off his robe and brushed the hair off him before the customer was allowed to leave. The applicant was then arrested.

10

The witness statement is supported by a copy of the notes of interview which, if correct, show that the applicant was cautioned and asked the questions already set out in the witness statement and further questions about any mitigating circumstances. The time of arrest, caution, entry and search are also recorded. The case record sheet has also been produced, repeating in substance what is set out in the witness statement and the notes of interview.

11

The grounds of defence argue that the applicant was personally served with the relevant notices and that this had been acknowledged by him. In consequence his detention was and remained lawful. The applicant was not entitled to an in-country right of appeal as statute provided for an appeal exercisable only once he had left the UK. On the evidence available to the respondent it was reasonable to conclude that the applicant was working in breach of his conditions and to make a removal decision under s.10 of the 1999 Act. There was no evidence to support the contention that the decision engaged article 8. The applicant had been granted leave to remain as a student for the purpose of studying. His arguments lacked substance and seemed little more than a last minute attempt to frustrate removal.

The Legislative Framework
12

We will now set out the statutory framework relevant to this application. It is provided by s.10 of the 1999 Act as follows:

  • “10 Removal of certain persons unlawfully in the United Kingdom

    • (1) A person who is not a British citizen may be removed from the...

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