R Pavel Ivlev v Entry Clearance Officer, New York

JurisdictionEngland & Wales
JudgeMr Justice Sales
Judgment Date09 May 2013
Neutral Citation[2013] EWHC 1162 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4770/2011
Date09 May 2013

[2013] EWHC 1162 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Sales

Case No: CO/4770/2011

Between:
The Queen on the application of Pavel Ivlev
Claimant
and
Entry Clearance Officer, New York
Defendant

Mr Laurie Fransman QC, Mr Duran Seddon (instructed by Gherson Solicitors) for the Claimant

Mr Andrew O'Connor (instructed by Treasury Solicitor) for the Defendant

Hearing dates: 27/11/12–29/11/12 and 29/4/13

Mr Justice Sales

Introduction

1

This is a claim for judicial review of a decision taken within the UK Border Agency ("UKBA") notified to the Claimant by a decision notice dated 28 February 2011 ("the decision notice") refusing to grant the Claimant entry clearance under the Tier 1 (General) Migrant category of the Points Based System for highly skilled migrants.

2

The Claimant is a lawyer of Russian origin. He has dual Russian/US nationality, having been naturalised as a citizen of the USA in March 2010. He was a senior member of a Moscow law firm (ALM Feldmans) which acted for some years through him and others for the Yukos group of companies (together, "Yukos") headed by Mikhail Khodorkovsky ("Mr Khodorkovsky") and for some of the leading figures in Yukos. The Claimant faces criminal charges in Russia relating to his involvement with Yukos as its lawyer. The Russian police have issued a so-called "Red Notice" through Interpol, calling for the arrest of the Claimant wherever he may be found.

3

The Claimant resides in the USA, which has decided not to arrest him or extradite him to Russia pursuant to the Red Notice. He practises as a lawyer in the USA. He wishes to have entry clearance to come to the United Kingdom to carry on his law practice here as well.

4

The decision notice purported to set out a decision made by a UKBA Entry Clearance Officer in New York ("the ECO"). In fact, as I explain below, it emerged in the course of the hearing and is now conceded by the Secretary of State that the UKBA New York office and the ECO in question understood that they were being directed by UKBA's head office in London to make the decision to refuse entry clearance for the Claimant. This was a misunderstanding on their part, since UKBA's London office intended only to provide advice for consideration by the ECO. However, the Secretary of State accepts that the net effect of this misunderstanding between the two offices is that the true operative decision to refuse entry clearance for the Claimant was taken by the acting head of the UKBA, Jonathan Sedgwick, at a meeting of officials in London on 14 February 2011.

5

Although, as recorded in the decision notice, the ECO concluded that the Claimant scored sufficient points to be granted entry clearance (i.e. a visa) in ordinary circumstances, the letter went on to say: "I have refused your visa application on this occasion because I am not satisfied that you meet all of the requirements of paragraph 320(19) of the Immigration Rules." Paragraph 320(19) provides that entry clearance may be refused by an ECO on the ground that exclusion from the United Kingdom is "conducive to the public good". The decision notice set out reasons to explain the decision to refuse entry clearance under paragraph 320(19) which had been drafted by Karen Evans, a UKBA official in UKBA's London office, to reflect the advice which Mr Sedgwick had decided should be given to the ECO in relation to the Claimant's case (and which the ECO understood to be a direction as to how to decide the application).

6

The Claimant challenges the decision set out in the decision notice on a range of grounds, including that there was in effect an unlawful surrender or abdication of responsibility for the decision from the proper decision-maker (who, according to the Immigration Rules, should have been the ECO) to Mr Sedgwick. The Claimant maintains that the criminal charges against him are politically motivated and without substance, such that they should have been disregarded by the British authorities when considering whether he should be granted entry clearance. He submits that the relevant decision-maker, Mr Sedgwick, erred in law in treating the outstanding criminal charges as a reason for refusing to grant him entry clearance.

The background to the claim for judicial review

7

Mr Khodorkovsky was one of the main shareholders and former head of Yukos, an important and valuable Russian group of companies involved in the oil industry. In October 2003, Mr Khodorkovsky was arrested by the Russian police on charges of fraud and tax evasion. In parallel with this, the Russian authorities levied a series of massive demands against Yukos for payment of tax, which eventually resulted in it being made bankrupt.

8

In August 2004 the offices of ALM Feldmans were raided by the Russian tax crimes unit seeking information relevant to Yukos's tax affairs. In November 2004 the General Prosecutor's Office in Moscow ("the GPO") raided the offices of ALM Feldmans and the homes of some of the lawyers in the firm seeking information relevant to Yukos and a bank called Menatep owned by Mr Khodorkovsky.

9

Lawyers in the firm were also summoned for interview by the GPO. The Claimant was interviewed on 16 November 2004. According to him, an investigator with the GPO put pressure on him to answer questions about Yukos's affairs in breach of lawyer/client duties of confidentiality or face immediate detention. The Claimant provided some limited information and was allowed to leave. The Claimant fled Russia that evening and has not returned. The Claimant went to the USA.

10

On 28 December 2004, the GPO brought criminal charges against the Claimant for fraud, money-laundering and tax evasion. In January 2005, the GPO obtained the permission of a Russian court in Basmanny to issue and pursue those charges against the Claimant.

11

In early February 2005 the Claimant's home was searched. He then arranged for his wife and children to leave Russia and join him in the USA.

12

On 15 February 2005, the Moscow City Court quashed the order of the Basmanny Court and remitted the case to the Basmanny Court. In April 2005, the Basmanny Court transferred the Claimant's case to the court in Khamovnichesky, which later became seised with the criminal proceedings against Mr Khodorkovsky. In June 2005, the Khamovnichesky court granted permission to the GPO to commence criminal proceedings against the Claimant.

13

On 14 November 2005, the GPO issued a new indictment against the Claimant, charging him with conspiracy to embezzle oil from Yukos as part of an organised group and with money-laundering the proceeds. The charges against the Claimant are related to the criminal charges against Mr Khodorkovsky and other defendants connected with the management of Yukos. The Claimant is alleged to have set up offshore companies to assist them to embezzle funds from Yukos and direct them into offshore accounts.

14

On 17 November 2005, the GPO declared an international search for the Claimant and on 2 December 2005 the Basmanny Court issued a warrant for his arrest. The Moscow City Court upheld this decision as lawful. A Red Notice was issued by Interpol to seek to give effect to this warrant. Under a Red Notice, the police in other countries are asked to co-operate with the authorities in the state which has issued a warrant for the arrest of an individual, by detaining the individual and seeking to extradite them to the issuing state to face criminal charges there.

15

The Claimant has not, however, been detained by the US authorities. His position is that the charges against him are politically motivated and baseless, and that he would face an unfair trial, wrongful imprisonment and possible mistreatment if he were returned to Russia. The Claimant maintains that Mr Khodorkovsky has been pursued through the Russian criminal process on the basis of politically motivated charges, because he defied President Putin and accused his government and associates of corruption. Others associated with Mr Khodorkovsky have been pursued in a similar way, without good reason. The Claimant fears that he would be treated in the same way if he returned to Russia. He says that, with his help, Yukos used tax minimization schemes which were lawful. He has been afforded protection by the US authorities, who have granted him US citizenship. He has lived and worked in the USA since 2004.

16

The first trial of Mr Khodorkovsky and an associate involved with Yukos, Mr Lebedev, for fraud, embezzlement and tax evasion began in June 2004. They were convicted on 31 May 2005 of six of the seven charges against them and sentenced to nine years' imprisonment, reduced to eight years on appeal. Both of them have brought proceedings against Russia in the European Court of Human Rights for violation of their rights under the European Convention on Human Rights ("ECHR").

17

A second set of criminal charges was filed against Mr Khodorkovsky and Mr Lebedev in June 2008, alleging misappropriation from Yukos affiliated companies and money-laundering of the proceeds. Their trial on these charges commenced in March 2009. They were convicted on these charges in December 2010.

18

There has been considerable international criticism of both trials of Mr Khodorkovsky and Mr Lebedev, to the effect that the charges against them have been politically motivated, that action against them and Yukos has breached Russia's obligations under the ECHR and that the trials against them have not been fair and in compliance with Russia's obligations under Article 6 of the ECHR. In...

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    ...( Carltona Ltd v Commissioners of Works [1943] 2 All ER 560): cf, for example, R (Ivlev) v Entry Clearance Officer, New York [2013] EWHC 1162 (Admin). However, it was common ground that nothing turned on this and that there was no difficulty in the appeal proceeding with the involvement o......
  • Upper Tribunal (Immigration and asylum chamber), 2015-09-04, OA/03709/2014
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    ...seeking entry to marry a 14 year old girl) 8 See for instance Ivlev, R (on the application of) v Entry Clearance Officer, New York [2013] EWHC 1162 (Admin) at 9 Olufosoye v SSHD [1992] Imm AR 141, R v ex parte Cheema [1982] Imm AR 124, CA. 11 ...

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