R (on the application of Mahmood) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | The Honourable Mr Justice McCloskey |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] UKUT 439 (IAC) |
| Date | 04 December 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2014] UKUT 439 (IAC)
In the Upper Tribunal
Immigration and Asylum Chamber
In the matter of an application for judicial review
R (on the application of Bilal Mahmood) v Secretary of State for the Home Department (candour/reassessment duties; ETS: alternative remedy) IJR
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(1) The lodgement of permission and/or interim relief papers in a judicial review application is a beginning, not an end.
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(2) If an application for permission is overtaken by supervening events or is otherwise rendered moot, there is a duty on the Applicant's solicitors to take appropriate and immediate action. This will include proactively communicating with this Chamber and the Respondent's representatives.
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(3) From the inception of the proceedings and in particular following receipt of the Respondent's Acknowledgement of Service, there is a duty on every Applicant's legal representatives to conscientiously reassess the viability and propriety of their client's application for judicial review and to consider whether any further procedural step is required. If the Acknowledgement of Service renders the challenge unsustainable, appropriate withdrawal steps must be initiated promptly.
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(4) Unjustifiable delays in the finalising and execution of proposed consent orders and lack of communication with the Upper Tribunal in this context are unacceptable.
Judicial review and alternative remedy
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(5) A person whose leave is invalidated on the basis that the Secretary of State considers deception has been used in connection with an application for leave will, at present, normally have an out of country right of appeal.
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(6) The availability of that right is, presumptively, an adequate alternative remedy to be pursued by the person concerned. As a result, a judicial review challenge to the Secretary of State's decision will fail, in the absence of evidence showing special or exceptional circumstances.
Following consideration of the documents lodged by the Applicant and the Respondent's Acknowledgment of Service
Decision of The President , The Honourable Mr Justice McCloskey
This is another of the currently plentiful crop of soi-disant “ETS” judicial review cases. These have gained much currency during recent months, stimulated by action taken on behalf of the Secretary of State for the Home Department ( “the Secretary of State”), the Respondent herein, in the wake of the BBC “Panorama” programme broadcast on 10 February 2014. “ETS” denotes Educational Testing Services, a global agency contracted to provide certain educational testing and assessment services to the Secretary of State. In order to secure leave to remain in the United Kingdom, by virtue of the relevant provisions of the Immigration Rules it was incumbent on the Applicant to provide evidence that he had obtained a specified type of English language qualification. The action taken on behalf of the Secretary of State, which the Applicant challenges by these proceedings, was based on an assessment that the English language certificate on which he relied had been procured by deception.
The Applicant challenges the Secretary of State's threefold inter-related decisions dated 08 May 2014 and 12 May 2014 respectively, to refuse him leave to remain, to remove him from the United Kingdom and to give directions for his removal. These decisions are expressed to be based on the Applicant's alleged deception:
“ You are specifically considered a person who has sought leave to remain in the United Kingdom by deception. Following information provided to us by ……. ETS ……… that on 23 October 2013 an anomaly with your speaking test indicated the presence of a proxy test taker”.
On 16 May 2014, the Applicant was granted interim relief in the form of an order restraining the Secretary of State from removing him from the United Kingdom. At that stage, none of the Respondent's evidence was available. A substantial volume of additional material evidence has now been provided via the Respondent's Acknowledgement of Service.
The Applicant's case is, firstly, that, as a matter of fact, the Respondent provided him with 60 days leave within which to make a further application (presumably for leave to remain) and that such application was duly made, with the result that the impugned decisions are “unfair and unlawful in all the circumstances”. No particulars of the alleged unfairness or illegality are provided. Secondly, it is contended that the failure to afford the Applicant a period of 60 days within which to obtain a new CAS from a different sponsor and to have his leave varied is at variance with the Respondent's policy. Thirdly, there is a complaint that deception has not been established by the Respondent to the requisite standard: notably, this ground is based on the non-provision of the supporting evidence. Finally, there is a brief and unparticularised complaint that the Applicant's rights under Article 8 ECHR have been violated.
The Respondent's evidence is to the effect that the Applicant's English language qualification was secured as a result of the relevant test having been attended and taken by a person other than the Applicant, described in this series of cases as a “proxy”, with the result that the Applicant secured the certificate by deception. This evidence contains the outworkings of the case made summarily in the texts of the impugned decisions. A period of some six weeks elapsed between the initiation of these proceedings and the provision of the Acknowledgement of Service. A further period of around ten weeks has elapsed since the latter event. Nothing further has been received from the Applicant's legal representatives
In this particular case, a significant feature of the conjoined applications for permission and interim relief was the Applicant's professed inability, due to (it was said) being in custody, to provide certain material documents, in particular an alleged letter from the Respondent of February 2014 (of unspecified date) to the effect that the Applicant “……… would be given 60 days to submit a fresh application”and the “ fresh application” allegedly made by the Applicant in March 2014. It was stated in Form T480, the Claim Form, that these materials would be forthcoming. However, some four months later, they have not been provided. On the working assumption – which is rebuttable – that the Respondent's Acknowledgement of Service and attachments are accurate and comprehensive, it appears that these materials do not exist. Applications for permission are determined on evidence, both visible and reasonably inferred. There is a clear onus on the Applicant to provide all material documents in his possession, custody or power. I determine this application on the basis that the materials alleged by him in his application to exist are either non-existent or irrelevant.
The analysis immediately above operates to dispose of the first of the Applicant's grounds. At this remove, some four months after the initiation of these proceedings, the Applicant has failed to provide the documents underpinning his two key assertions. Furthermore, they do not form part of the materials lodged by the Respondent with the Acknowledgement of Service. There is no basis for inferring, even to the level of arguability, that these documents exist. Thus the first ground has no substance. It has no merit in any event having regard to the statutory framework within which the key decision, the first, was made. This was a decision to refuse the Applicant's application for leave to remain in the United Kingdom on the ground that he had practised deception, under paragraph 322 (1A) of the Immigration Rules, which states unequivocally that where this has occurred, leave to remain is to be refused. I consider that, in tandem, the existence of this power and the decision to exercise it on the basis of the evidence proffered constitute, by some measure, the most important legal consideration in the matrix under scrutiny.
The second of the Applicant's grounds falls in tandem with the first, since it is based on the existence of alleged documentary evidence which has not been provided: see my analysis in [5] and my assessment of the first ground in [6]. I consider that the policy invoked has no function in a deception case of this kind. Furthermore, and in any event, there is nothing in the policy document which purports to relax or dilute the operation and exercise of the legal rule in play viz paragraph 322(1A) of the Immigration Rules ( supra). I repeat: this is the dominant ingredient in the framework under consideration.
The third of the Applicant's grounds, being a complaint that his private life rights under Article 8 ECHR have been infringed, is, in my estimation, nothing more than a makeweight. It is a paradigm example of pure assertion devoid of accompanying particulars and without a shred of supporting evidence. All that is disclosed in the grounds is that the Applicant is a citizen of Pakistan, now aged 27 years, who has been in the United Kingdom as a Tier 4 student since 14 December 2011. To describe the evidential basis for the private life which he asserts as threadbare is generous. I consider that this bare and evidentially impoverished ground is distant from the threshold of arguability. Furthermore, it withers to the point of extinction in the wake of the recent decision of the Supreme Court in Patel v Secretary of State for the Home Department [2013] UKSC 72:
“ It is important to remember that Article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to...
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Appeals
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Table of Cases
...[2009] EWHC 2387 (Admin), [2010] HRLR 2, [2010] UKHRR 300 6.48, 6.49 R (Bilal Mahmood) v Secretary of State for the Home Department [2014] UKUT 439 (IAC), [2015] INLR 358, [2015] Imm AR 193 6.50 R (Cart) v The Upper Tribunal [2009] EWHC 3052 (Admin), [2010] 2 WLR 1012, [2010] 1 All ER 908, ......