R Shahbaz Ali v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Helen Mountfield |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] EWHC 3967 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4034/2014 |
| Date | 27 November 2014 |
[2014] EWHC 3967 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Helen Mountfield QC
(Sitting as a Deputy High Court Judge)
Case No: CO/4034/2014
Zane Malik and Niaz Shah (instructed by Mayfair Solicitors) for the Claimant
Rory Dunlop (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 5 and 6 November 2014
Helen Mountfield QC:
Introduction
The decisions under challenge
This is a challenge by an application filed on 28 August 2014 to three decisions communicated by the Defendant to the Claimant on 11 August 2014. The decisions were presented to the Claimant almost simultaneously, but the first to be served was the decision to remove the Claimant from the United Kingdom ('the removal decision'), followed almost immediately by a decision to refuse to vary his pre-existing leave to remain as a Tier 4 (General) Student ('the refusal decision'). The third was a decision to detain the Claimant ('the detention decision'). He was, indeed, detained between 11 August 2014 and 1 September 2014 pending removal. It is common ground that it is only if the challenge to either the removal or the refusal decision succeeds that the challenge to the detention decision arises.
Procedural history
The challenge is brought by permission granted by Mrs Justice Lang. On 15 September 2014, she granted permission and ordered that the claim be expedited and heard before 7 November. It is apparent from her written reasons that she incorrectly understood that the Claimant was still in immigration detention. Since that decision, there have been unsuccessful attempts by both the Defendant and the Claimant to wrest the determination of the substantive claim from the hands of a single Administrative Court judge. First, on 30 September 2014, the Defendant applied to have the matter transferred to the Upper Tribunal. She repeated submissions made in the Summary Grounds of Defence as to why the matter was not apt for determination in the Administrative Court; pointed out that the Claimant was no longer in detention; and asked for the hearing on 5 November 2014 to be vacated since, it was submitted, the case was more apt for determination by the Upper Tribunal. This application was refused by Dingemans J on 27 October 2014. Then, on 30 October 2014, the Claimant's solicitors wrote to the court saying that this was a test case which would 'undoubtedly affect thousands of similar/potential cases' and in the circumstances, asking for the matter to be listed before a Divisional Court or 'a full High Court' by which they apparently meant a panel of two or three judges. That application was opposed by the Secretary of State, and had not been determined by the time of the hearing on 5 & 6 November 2014. By the date of that hearing, which took place before a single deputy High Court judge, no one sought to suggest that I should adjourn the hearing. There was, however, as explained below, a live issue as to whether the Administrative Court ought to determine the merits of the application at all.
Background
It is a condition of receipt of leave to remain as a Tier 4 General (Student) Migrant awarded under the Points-Based system in Part 6A of the Immigration Rules that an applicant can prove an adequate aptitude in speaking and writing in English to acquire the requisite number of points for this. On 10 February 2014, a BBC 1 Panorama documentary disclosed a major problem with the administration of English language tests for the purpose of making applications for leave to remain by an organisation called Educational Testing Services ('ETS'). At ETS English language test centres, tests were undertaken by persons subject to immigration control 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 by 'proxy' test takers. In a written Parliamentary answer on 14 July 2014, Mr James Brokenshire, a Home Office minister, said that enquiry was ongoing, but 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 undertook a review of the validity of test scores awarded by it at various test centres in the United Kingdom. The Defendant's evidence before me 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. The Claimant was one of those whose scores were treated as invalid in this way.
The Claimant's circumstances
The Claimant is a Pakistani national who, until the impugned decisions were taken, had leave to remain in the United Kingdom from 2011 as a Tier 4 (General) Student Migrant under the Points-Based system. The Claimant's original application for leave had been accompanied by a certificate provided by ETS which stated that he had undertaken and passed an English language test, in which he had obtained 100% in the speaking element. The original leave was due to expire on 30 December 2013, but the Claimant applied to renew it on 29 December 2013. This had the effect of extending his leave under section 3C of the Immigration Act 1971 ('the 1971 Act') pending a determination of the application for renewal.
However, following the ETS notification on 20 June 2014, the Defendant concluded that the Claimant was someone who had used deception to seek leave to remain. It was on the basis of that conclusion that the Defendant reached the impugned decisions in this case.
Early on the morning of 11 August 2014, immigration officers served the removal and refusal decisions on the Defendant at his home. The removal decision was served at 6.19am and dated 11 August 2014. The removal decision stated that the Defendant had decided to remove the Claimant under section 10(1)(b) Immigration & Asylum Act 1999 ('the 1999 Act') as someone who had used deception in seeking leave to remain.
The refusal decision was served at 6.21am. That decision was dated 7 July 2014, but stated that the Defendant had decided to refuse the Claimant's application to continue his leave to remain and that 'in view of the earlier section 10 removal decision, you do not have a right of appeal against this decision – see section B' (emphasis added).
Section B of the refusal decision, headed 'Right of Appeal' stated:
'This decision is not an immigration decision under section 82. Section 82(2)(d) [of the 1999 Act] concerns 'a refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain'. This is not the situation in this case, as the effect of the prior section 10 decision means that any existing leave to enter or remain in the United Kingdom was invalidated under section 10(8) so you have no leave to enter or remain at the time the decision to refuse to vary leave to remain was notified'.
The Claimant was taken into immigration detention. On 26 August 2014, directions were set for his removal on 31 August 2014. However, following service of the application for judicial review, removal directions were cancelled and on 1 September 2014, the Claimant was released.
The Claimant has made a witness statement in these proceedings in which he denies having cheated in his ETS test, or having used a proxy tester.
This claim is one of a number which I understand to be pending either in the Administrative Court or the tribunal system which arise from variation or removal decisions taken in the light of the widespread ETS deception disclosed in the Panorama disclosure. The fact of such widespread deception (which does not appear to be in dispute) does not in itself, of course, prove that any individual was a participant in it.
The Legal Framework
Relevant legislation
For those subject to immigration control, leave is granted or refused under section 3 of the 1971 Act. Grants of leave for a finite period can be extended, and if an application to extend a period of leave is made during the currency of an existing one, the application itself has the effect of continuing the leave pending the making of either a decision to vary that leave or to refuse to do so. The relevant legal provision is section 3C of the 1971 Act which provides:
" Continuation of leave pending variation decision
(1) This section applies if
a. a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
b. the application for variation is made before the leave expires and
c. the leave expires without the application for variation having been decided.
(2) The leave is...
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