R Shakeel Faraz v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Thomas |
| Judgment Date | 28 February 2018 |
| Neutral Citation | [2018] EWHC 1364 (Admin) |
| Docket Number | CO/5761/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 February 2018 |
[2018] EWHC 1364 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Andrew Thomas QC
(Sitting as a Deputy Judge of the High Court)
CO/5761/2017
Ms J Victor Mazeli (instructed by Mym solicitors) appeared on behalf of the Claimant.
Mr R Evans (instructed by the Government Legal Department) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
This is a renewed application for permission to claim judicial review in respect of essentially two matters, first of all the decision on 3 rd September 2015 of the Secretary of State to refuse the claimant's application for leave to remain and secondly the issue of notice of removal on 10 th September 2017.
The claimant has also alleged that his detention was unlawful on the grounds that the notice curtailing leave to remain, so the notice of removal, should not have been served in this case. It is quite clear that that is entirely dependent on any issue concerning the two primary grounds I have already indicated.
Permission was refused on the papers by HHJ Coe QC on 25 th January 2018. The claimant renews his application today before me and his case has been presented with considerable vigour by Ms Victor Mazeli on his behalf and I have heard submissions also from Mr Richard Evans on behalf of the Secretary of State.
The claimant is 36 years of age and a national of Pakistan. He first came to the United Kingdom in 2011 on a 6-month student visa. He applied initially for leave to remain thereafter as an entrepreneur, then as a student, then as a post-study migrant and then again as a student. His application was refused in May 2013. He appealed and in February 2014, his appeal was allowed by the First-tier Tribunal in the sense that the rejection was set aside and the Secretary of State agreed to reconsider. Submissions were made in support of the application before that reconsideration took place. Those submissions were made by the solicitors then acting on the claimant's behalf, a firm named Farani Javid Taylor solicitors who have a central London address.
The application was refused by the Secretary of State and a decision letter was issued on 3 rd September 2015. Although the detailed reasons were set out in a letter addressed to the claimant it is common ground that in fact the letter was sent to his solicitors. It was sent by registered post and a certificate number appears within the record. There is no evidence of that letter being returned to the Secretary of State as undelivered.
The claimant's case is that he was unaware of that decision. His solicitors never told him that they had received such a letter. He made no attempt, himself, either directly or through his solicitors to contact the Home Office. He has made a witness statement in support of his application which was before the court in which he asserts that he had made several attempts to check through the solicitors whether or not they had received a decision and was told that they had not. Since these events, he says, although there is no corroboration of this, that he has spoken to the solicitors and they have confirmed that they did not receive that letter. I will return to that matter in due course.
The claimant carried on living in the United Kingdom until he was encountered in September 2017 and detained. A notice of removal was issued on the basis that he was a person in the United Kingdom who did not have leave to remain in the United Kingdom.
There are three applications that arise on this claim. The claimant wishes to claim judicial review of the September 2015 decision. He states that he did not have notice of that decision at the time and any challenge to that decision of course would now be out of time as a claim for judicial review. In any event, service of that notice is important because service of the notice would have curtailed the leave which he had to remain at that stage by serving notice of the rejection of his application, further application for leave to remain.
The second issue is whether there are grounds to challenge the decision set out within the letter of 3 rd September 2015, on the grounds that the Secretary of State determined that the certificate relating to the Test of English for International Communications, the “TOEIC” certificate, that had been produced by the claimant had been fraudulently obtained. It was a certificate issued by Elizabeth College. The Secretary of State in that decision notice reviewed the evidence relating to the circumstances in which that certificate was granted and determined that the claimant must have used a proxy to sit a test for him. That is a conclusion which the Secretary of State has reached concerning a large number of the tests sat at Elizabeth College.
The third issue is whether there are any grounds to challenge the remaining parts of the decision letter of 3 rd September 2015, because there were other grounds on which that application was rejected not least the absence of a valid certificate of acceptance for studies in support of the claim for leave to remain as student.
On the first issue, Ms Victor Mazeli submits that there is evidence from which the court can conclude that the notice of the decision was not received. On the defendant's behalf, Mr Evans takes me to s.8ZB of the Immigration Leave to Enter and Remain Order 2000 which contains a presumption about receipt of notice. It states that:
“Where notice is sent in accordance with Art.8ZA, it shall be deemed to have been given to the person affected unless the contrary is proved. Where the notice is sent by postal service on the second day after it was sent by postal service in which delivery or receipt is recorded if sent to a place within the United Kingdom or on the 28 th day after it was posted if sent to a place outside the United Kingdom.”
That section, as with the corresponding section of the Interpretation Act 1978 gives rise to a rebuttable presumption that where a document is posted it shall be deemed to be served unless the contrary is proven. Ms Victor Mazeli submits that there is evidence to the contrary in that the claimant himself has made a witness statement stating that from his enquiries that notice was never received. He says that he that was in regular touch with his solicitors at the time. Had the letter been received it is inconceivable, it is submitted, that it would not have been drawn to his attention by his solicitors.
In addition to that, the claimant has...
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