Rehmat Ullah v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Hamblen,Lord Justice Haddon-Cave |
| Judgment Date | 03 April 2019 |
| Neutral Citation | [2019] EWCA Civ 550 |
| Docket Number | Case No: C2/2018/0236 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 2019 |
[2019] EWCA Civ 550
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL,
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Rintoul
JR/4589/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Hamblen
and
Lord Justice Haddon-Cave
Case No: C2/2018/0236
Sonali Naik QC (instructed by Abbott Solicitors) for the Appellant
Shakil Najib (instructed by the Government Legal Department) for the Respondent
Hearing date: 7 March 2019
Approved Judgment
(A) Introduction
This is the appeal of Mr Rehmat Ullah (“the Appellant”) from the decision of 13 December 2017 of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Rintoul) refusing his claim for judicial review of the Respondent's decisions of 12 March and 16 April 2016 to cancel his leave to enter the United Kingdom and to require him to attend on a stated date for departure from the country.
The appeal raises the question of the principles arising when, after unsuccessfully resisting an appeal to the First-tier Tribunal from a decision to grant indefinite leave to remain in the United Kingdom (“ILR”), the Respondent finds fresh evidence suggesting to him that the original claim to ILR had been fraudulent.
(B) Background Facts
The Appellant is now 67 years old, having been born on 4 January 1952. He entered the UK unlawfully, when aged 43, in 1996. On 16 November 2011 he applied for indefinite leave to remain (“ILR”) in the UK on the basis of having been in the country for 14 years. His application was refused on 9 March 2012, but an appeal from that refusal was allowed by the First-tier Tribunal (“FTT”) (Tribunal Judge Turkington) in a decision promulgated on 11 June 2012. Following that decision, the Appellant was granted ILR.
At some time in 2013, a “denunciation” of the Appellant was sent to the Respondent by an unknown member of the public, apparently bringing into question the basis upon which the Appellant had applied for ILR in 2011 and on which the FTT had found in his favour.
According to the Grounds of Defence to the judicial review claim, the letter sent to the Respondent in 2013 alleged that the Appellant had obtained a passport and visas under a date of birth different to that claimed in the application for ILR. It included a photocopy of a passport (numbered J359567) issued at Abu Dhabi on 5 November 2000 and a copy of a further passport (numbered B488351) issued on 6 December 1995, with an original entry of a birth date of 4 January 1952, which had been amended to 20 February 1960.
According to the Appellant, after the grant of ILR, he visited Pakistan twice in 2013 and encountered no difficulty with immigration officials on return to the UK. On 4 December 2015, he left the UK again to visit Pakistan. On return to the UK, on 16 January 2016, he was detained. He was interviewed and it was put to him that he had not resided in the UK for 14 years at the time of his ILR application, since on 10 June 2004 he had made an application in Islamabad for a visitor visa to the UK. He was refused leave to enter following that interview but was granted a temporary admission, pending further investigations.
The Respondent asserts that the investigations revealed, first, that J359567 was submitted to the British Embassy in Abu Dhabi on 10 November 2001 for the purpose of obtaining a UK visitor's visa. The family name given was “Rehmatullah” and the date of birth was stated to be 20 February 1960. Secondly, the same passport was, it appears, submitted to the High Commission in Islamabad on 2 April 2003 in order to obtain a further visit visa for the UK; similar family details were given. Thirdly, the passport was submitted to the same High Commission on 10 June 2004, again to obtain another visit visa.
These features were put to the Appellant at an interview with immigration officials on 12 March 2016. He denied making the visa applications and insisted that he was in the UK at the relevant times. He acknowledged that J359567 contained his photograph, but denied that the signature was his; he claimed the passport was fraudulent. As for passport B488351, issued in 1995, he blamed the agent who had brought him to the UK in 1996, whom he had not seen since then, but he could not explain how the agent had obtained a recent photograph of him. He mentioned that there had been a burglary at his house in Pakistan on a date that he did not specify.
By the first of the decisions under challenge, made on 12 March 2016, the Appellant's Leave to Enter was cancelled. The Notice included the following:
“At the time of the application on 16 November 2011 you claimed that you had been living continuously in the United Kingdom since 2 nd January 1996 and had at least fourteen years continuous residence in the United Kingdom, however during further interview today you admitted that the photograph shown to you in Pakistani Passport No: J359567 issued in Abu Dhabi, UAE on 5/11/2000 was that of you; you also acknowledged that the details in the visit visa application for 2004 were those of yours. Furthermore, Home office records show that on 3 separate occasions visit visas (10/11/01, 7/5/03, 30/6/04) were issued to you.
I am therefore satisfied that there is substantial evidence to conclude that at the time of your application in 2011 you had not been in the United Kingdom continuously for 14 years as claimed.
I therefore cancel your leave to enter the United Kingdom.
I have cancelled your continuing leave. If your leave was conferred by an entry clearance, this will also have the effect of cancelling your entry clearance.”
The Appellant sought administrative review of the decision. Following that review, the decision of 12 March was maintained and the cancellation of the Appellant's leave to enter was confirmed. The review decision of 16 April 2016 included the following:
“The Border Force officer has sight of the Home Office records relating to your application for ILR, the appeal determination in your favour of 11 June 2012, all remaining papers relating to visa applications made with the Pakistan passport J359567, including a copy of the bio data page of that passport and had conducted two interviews with you to test the credibility of the evidence held. I am satisfied that the decision maker did undertake all pertinent and necessary enquiries available to him and that the decision to refuse you leave to enter was therefore lawful.
In your grounds for Administrative Review you further raise the common law principle “Res Judicata” and assert that, as a competent authority has determined in your favour on the issue of evidence of your claim to 14 years continuous residence in the UK at the time of your successful appeal, the Home Office cannot reopen the matter. However the Court has accepted that “there may be circumstances in which the executive may re-open a decision without appealing a determination of an adjudicator, for example, because there is fresh evidence, say of deception of the adjudicator about the facts on which the challenged decision was based…” ( Boafa [sic] [2002] EWCA Civ 1294). The Home Office were not aware of the evidence relating to the three visa applications between 2001 and 2004 at the time of your appeal. I am satisfied that this constitutes new evidence and that had this been put before the Judge they would not have found as they did. I am therefore satisfied that the circumstances of Boafa [sic] apply to this case and that the Home Office are entitled to reopen this matter.”
(C) The Proceedings
These judicial review proceedings were begun by claim form issued on 21 April 2016. Permission to apply for judicial review was granted by Upper Tribunal Judge Bruce by a decision of 15 August 2017 on two grounds, as follows:
“She submitted first that the new evidence relied upon by the Secretary of State for the Home Department did not fall within one of the exceptions set out at paragraph 35 of Secretary of State for the Home Department v TB [2008] EWCA Civ 997. In the absence of any explanation from the Secretary of State as to why it was not produced before Judge Turkington that ground is arguable.
Second, she submitted that there was procedural unfairness in that the Applicant was not given an opportunity to address the matters put to him in an interview on the 11 th March 2016 before his leave was cancelled on the 12 th. That ground is arguable.”
The application was heard by Upper Tribunal Judge Rintoul on 22 November 2017 and was dismissed by his decision of 13 December 2013. Dealing with the first ground of challenge, the judge said the following (at paragraph 14):
“14. There is little dispute, if any, that the relevant test to be applied in this case is whether the Secretary of State's evidence falls within the exceptions set out in TB which is in effect as Mr Najib submitted the test to be applied in Ladd v Marshall. That is a three part test. The first part of the test is whether the evidence now relied upon could with reasonable diligence have been discovered earlier prior to the appeal. Second, whether that evidence was likely to have had an impact on the case, that is, that it had an important if not necessarily decisive influence in immigration decisions and, third, the evidence must be apparently credible although not incontrovertible.”
He examined the case under each of the Ladd v Marshall headings and found them satisfied. He held that there was, therefore, no merit in ground 1.
As for ground 2, the crux of the judge's decision can be found in paragraph 18 where he said this:
“18. Turning to the second ground I consider that in addressing the issue of procedural unfairness it is important to note that in this case there...
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