R (Yee Kiong Lim and Yet Kiow Sew) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 30 November 2006 |
| Neutral Citation | [2006] EWHC 3004 (Admin) |
| Date | 30 November 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7094/2005 |
[2006] EWHC 3004 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Lloyd Jones
Case No: CO/7094/2005
Mr. Rembert De Mello QC (instructed by Christine Lee and Co.) for the Claimant
Mr. Steven Kovats (instructed by the Treasury Solicitors) for the Defendant
Hearing dates: 8 th November 2006
MR. JUSTICE LLOYD JONES:
This is an application by Mr. Yee Kiong Lim and his wife Mrs. Yet Kiow Sew for judicial review of the following decisions of the Secretary of State for the Home Department ("the Secretary of State").
(1) The decision of the 7 th September 2005 to cancel the work permit of Mr. Lim.
(2) The failure to grant Mr. Lim an in-country right of appeal against that decision.
(3) The decision of the 7 th September 2005 to detain Mr. Lim and Mrs. Sew.
(4) The decision of the 7 th September 2005 to remove Mr. Lim and Mrs. Sew to Malaysia.
Mr. Lim and Mrs. Sew are both citizens of Malaysia. On the 30 th December 2003 they were granted leave to enter the United Kingdom as visitors. On the 5 th April 2004 Mr. Lim applied for leave to remain and for a work permit. On the 26 th April 2004 the Secretary of State approved the issue of a work permit for Mr. Lim as a chef for Lucky Star Restaurants Ltd at the Lucky Star Restaurant, Norwich for a period of six months. Mr. Lim began working at the Lucky Star restaurant on the 1 st May 2004. On the 26 th May 2004 Mrs. Sew applied for leave to remain as the dependant of Mr. Lim. On the 10 th June 2004 the Secretary of State refused Mrs. Sew leave to remain and she subsequently left the United Kingdom. On the 26 th June 2004 the Secretary of State issued a work permit to Mr. Lim. On the 13 th August 2004 the Secretary of State granted Mr. Lim leave to remain until the 13 th August 2009. That grant stated Mr. Lim was "able to work as authorised by the Secretary of State". Mr. Lim subsequently left the United Kingdom. The Secretary of State granted Mrs. Sew entry clearance as the dependant of Mr. Lim and on the 13 th May 2005 they both entered the United Kingdom. Mrs. Sew was granted leave to enter as the dependant of Mr. Lim.
On the 31 st August 2005 immigration officers entered the Riverbank Restaurant at Norwich and found Mr. Lim and Mrs. Sew there. On the 7 th September 2005 immigration officers and police officers executed a warrant at the Riverbank Restaurant and arrested Mr. Lim and Mrs. Sew among others. They were both detained. In interview Mr. Lim maintained that he was not working at the Riverbank Restaurant but he had simply gone there, on both occasions when he had been seen there by the immigration officers, to collect food for use in the Lucky Star Restaurant. There was, accordingly, a dispute of fact as to whether Mr. Lim had acted in breach of a condition attached to his leave to remain in the United Kingdom.
On the same day, 7 th September 2005, Mr. Lim was served with a notice in which the immigration officer stated that he was satisfied that Mr. Lim was a person subject to administrative removal in accordance with section 10, Immigration and Asylum Act 1999 ("the 1999 Act") as a person who has failed to observe a condition of leave to enter or remain. Mr. Lim was also served with notice of a decision to remove him and directions for his removal. The failure to observe a condition on leave to remain alleged against Mr. Lim was that he was permitted to work at the Lucky Star Restaurant and that he was in fact working at the Riverbank Restaurant.
Also on 7 th September 2005, Mrs. Sew was served with a notice that she was a person subject to administrative removal in accordance to section 10 of the 1999 Act as a member of the family of a person on whom removal directions had been served. Mrs. Sew was also served with notice of a decision to remove her from the United Kingdom and removal directions.
On the 8 th September 2005 Mr. Justice Tugendhat granted an injunction restraining the removal of the Claimants from the United Kingdom. A Claim Form was issued on the 9 th September 2005. On the same day the removal directions were cancelled. On the 19 th September 2005 an Immigration Judge granted bail.
Following further representations on behalf of the Claimants to the Secretary of State, on the 12 th November 2005 the Secretary of State rejected the Claimants' human rights claims and certified them as clearly unfounded under section 94(2) Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). On the 17 th November 2005 Mr. Lim was granted temporary admission to the United Kingdom and permission to work at the Lucky Star Restaurant.
On the 16 th February 2006 Ouseley J considered the application for permission to apply for judicial review on the papers. He neither granted nor refused permission. He adjourned the matter for oral argument as to the correct basis for the review of the factual assessment of the alleged breach. In his observations, he invited further argument in particular as to whether the finding of a failure to comply with a condition attached to the leave to enter or remain is a precedent fact which the Secretary of State must prove on the balance of probabilities to the Administrative Court. He observed that if it was, it would mean that there was in reality an in-country right of appeal at least so far as that particular fact is concerned.
On the 31 st March 2006 Mr. Justice Bean granted permission to apply for judicial review and ordered that the following questions be determined as a preliminary issue.
"(1) Whether on this claim for judicial review the Defendant must prove on the balance of probabilities that the first Claimant breached the conditions of his leave,
(2) The relevance, if any, to the first question of (out of country) rights of appeal to the Asylum and Immigration Tribunal. In particular, whether the court should decline to entertain this claim on the ground that the Claimants have an alternative remedy in the form of a right of appeal out of country."
It is common ground between the parties that a decision on the status of Mr. Lim is likely to resolve, in addition, the status of Mrs. Sew.
The first issue.
Section 10 (1) of the 1999 Act provides in relevant part:
"10 Removal of certain persons unlawfully in the United Kingdom
(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if –
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;
…
(c) directions … have been given for the removal, under this section of a person … to whose family he belongs.
…
(7) In relation to any such directions, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the 1971 Act (administrative provisions as to control of entry), apply as they apply in relation to directions given under paragraph 8 of that Schedule.
(8) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force.
…"
On behalf of the Claimants, Mr. De Mello submits that section 10(1) is worded in a way which requires the immigration officer to show that the Claimant did not observe a condition attached to his leave to remain. He contends that the wording necessitates such an approach and that this is a matter of precedent fact or jurisdictional fact. On this approach it would become necessary to enquire whether Mr. Lim has or has not failed to comply with a condition of his leave to remain by working in the other restaurant as alleged. Mr. De Mello submits that the burden of proving such a breach is on the Secretary of State who must establish the facts which give rise to the power to remove.
Mr. Kovats, on behalf of the Secretary of State, submits that the function of the court on this claim for judicial review is to determine whether the Secretary of State reasonably concluded that Mr. Lim had failed to observe a condition attached to his leave to remain and that the existence of such a breach is not a precedent fact. He contends that a precedent fact approach in the present case would be repugnant to Parliament's decision to confine Mr. Lim to an out of country appeal.
In their natural meaning the words used in section 10(1) indicate that the power of removal arises only if the person concerned "does not observe a condition attached to the leave". An immigration officer is entitled to give a direction only if there has been such a failure to observe a condition of leave. On the face of the provision, it would not be sufficient that the immigration officer reasonably believed that the person concerned had failed to observe a condition of his leave. The discretionary power to remove exists if, but only if, the specified state of affairs i.e. that he has not observed a condition attached to the leave, does in fact exist. On the plain meaning of section 10(1) the power to remove is contingent on an actual failure to observe a condition and not on a reasonable suspicion that that has occurred.
Support for this reading of section 10(1) can be found in a consideration of the provisions governing the power to detain. As originally enacted paragraph 16 of Schedule 2 to the Immigration Act 1971 ("the 1971 Act") provided:
"…(2) A person in respect of whom directions may be...
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