Tareque Hossain v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Moylan,Lady Justice Asplin,Lady Justice Elisabeth Laing
Judgment Date05 June 2024
Neutral Citation[2024] EWCA Civ 608
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: CA-2023-00486
Between:
Tareque Hossain
Appellant
and
The Secretary of State for the Home Department
Respondent

[2024] EWCA Civ 608

Before:

Lord Justice Moylan

Lady Justice Asplin

and

Lady Justice Elisabeth Laing

Case No: CA-2023-00486

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Upper Tribunal Judge Gleeson UI-2022-000769

Royal Courts of Justice

Strand, London, WC2A 2LL

Michael Biggs (instructed by Liberty Legal Solicitors LLP) for the Appellant

Tom Tabori (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 27 February 2024

APPROVED JUDGMENT

This judgment was handed down remotely at 10.30am on 5 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lord Justice Moylan
1

The Appellant, Mr Tareque Hossain, appeals from the decision of Upper Tribunal (Immigration and Asylum Chamber) Judge Gleeson (“the UTJ”) dismissing his appeal from the decision of First-tier Tribunal (Immigration and Asylum Chamber) Judge Beg (“the FTTJ”) by which she dismissed his challenge to the Secretary of State for the Home Department's (“SSHD”) decision refusing him leave to remain in the United Kingdom.

2

There are three Grounds of Appeal but only two were pursued. The first, and the Appellant's “main argument”, is that the UTJ was wrong not to conclude that the hearing before the FTTJ was procedurally unfair because she departed from “her proper, supervisory, role” and improperly “descended into the arena”. The second is that the UTJ had been wrong to “find” that the Appellant's then counsel had not been concerned about the FTTJ's conduct and had also been wrong to rely on the fact that the Appellant's then counsel had not raised any objection to the FTTJ's conduct during the course of the hearing before her. I only deal with the second ground of appeal very briefly, reflecting the focus given to it during the course of the hearing before us, because it is clear that the success of the appeal depends on whether the challenge to conduct of the hearing by the FTTJ is, or is not, made out.

3

The Appellant is represented, as he was before the UTJ, by Mr Michael Biggs. The SSHD is represented by Mr Tom Tabori who did not appear below.

Factual Background

4

The Appellant is a national of Bangladesh. He entered the UK in February 2010 on a Tier 4 student visa which was valid until 30 April 2013. On 1 May 2013, he applied for leave to remain as a Tier 4 student which was granted from 11 June 2013 to 17 August 2015. On 26 June 2014, the SSHD curtailed the Appellant's leave with effect from 30 August 2014 on the basis that he had cheated in a TOEIC (Test of English for International Communication) examination, the results of which he had relied on in his May 2013 application. This decision attracted no right of appeal and the Appellant raised no challenge by way of judicial review.

5

On 27 August 2014, the Appellant was served with notice that he was liable to removal from the UK under s.10 of the Immigration and Asylum Act 1999 (“Removal of persons unlawfully in the United Kingdom”). On 29 August 2014, the Appellant made a further application for leave to remain as a Tier 4 student which was rejected on 7 October 2014. The Appellant has remained in the UK without leave.

6

On 31 May 2017, the Appellant made an asylum claim. This was refused on 18 September 2017. On 11 December 2019, the Appellant applied for leave to remain relying on his private and family life. This was refused on 17 April 2020.

7

The Appellant then submitted a pre-action protocol letter in respect of this last decision. However, because the asylum decision had not been served on him, it was agreed that that decision would be withdrawn and reconsidered, incorporating the Appellant's human rights claim. The Appellant then withdrew his asylum claim on 21 September 2020, prior to the service of any decision.

8

On 21 October 2020, the Appellant made a further application for leave to remain on the basis of his family and private life. This was refused by a decision letter dated 16 September 2021. It was determined that the Appellant had no family life as he had not referred to any partner, parent or dependent children in the UK. As for his reliance on his private life, this was also rejected principally on the grounds of suitability. This was based on the SSHD being satisfied that, when making his application for leave to remain, the Appellant had relied on a TOEIC certificate from the Educational Testing Service (‘ETS’) which had been “fraudulently obtained”. The ETS had undertaken “a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker”. The ETS had, accordingly, “cancelled” the results of the test which the Appellant had taken at Queensway College on 16 January 2013.

Proceedings

9

The Appellant's appeal to the FTT from the SSHD's decision of 16 September 2021 was determined by the FTTJ in a decision promulgated on 31 May 2022, following a hearing at which the Appellant and two supporting witnesses gave oral evidence. The Appellant and the SSHD were both represented by counsel.

10

The issues determined by the FTTJ were, at [19]:

“The issues before me are firstly whether the appellant used deception in an application for leave to remain dated 29 August 2014. Secondly, whether he meets the requirements of paragraph 276 ADE of the Immigration Rules in respect of his private life. Thirdly, whether his removal would breach his rights under Article 8 ECHR.”

It is obviously important to note that the first, and indeed the critical issue, was whether the Appellant had “used deception”, namely by relying on a test certificate which had been, at [8], “fraudulently obtained by the use of a proxy test taker”.

11

Oral evidence was given by the Appellant and two supporting witnesses, Mr Islam and Mr Mazumder. Each of them was cross-examined by counsel for the SSHD. The Appellant's cross-examination included some questions about why he had chosen Queensway College, one or two questions about why Mr Islam had gone with him and some questions about what had happened when he took the test. Mr Islam was cross-examined about what he said had happened on the day of the test including the journey to the College and how long he had had to wait. Mr Mazumder was cross-examined about various aspects of his evidence including that he had recommended Queensway College to the Appellant, that he had helped the Appellant prepare for the test, and about the day of the test as he said that he had met the Appellant after he had finished.

12

During the course of each witness' evidence-in-chief and cross-examination, the judge asked a few questions. No complaint is, or could be, made about those questions. The focus of Mr Biggs' criticism of the FTTJ's conduct of the hearing is on the questions she asked after the cross-examination of each witness had concluded. I will deal with these further below but their extent can be seen by comparison with the length of the cross-examination on behalf of the SSHD: respectively approximately 4.5 (the FTTJ) and 8 (the SSHD) pages of the transcript for the Appellant; 2 and nearly 4 pages for Mr Islam; and 3 and 4 pages for Mr Mazumder. After the judge had concluded her questions, she gave an opportunity for both counsel to ask further questions. Only counsel for the SSHD did.

13

The FTTJ set out the legal and evidential approach she was required to take in respect of the allegation of deception. The judge did not find the Appellant a credible witness nor did she accept the evidence of Mr Islam or Mr Mazumder. She concluded, at [57], “taking the evidence as a whole”, that the Appellant “used deception” in his application for leave because he had not taken the English language test on which he had relied. She also dealt with the other elements of the case and dismissed the Appellant's appeal.

14

The Appellant was given permission to appeal to the UT. The main challenge to the FTTJ's decision was based on “procedural unfairness”. It was asserted that the FTTJ had “embarked on cross-examination” which involved “questioning in an ‘aggressive manner’ and so went beyond the Judge's ‘remit of being an independent adjudicator’”. For the purposes of that appeal, witness statements were provided by the Appellant, the Appellant's counsel before the FTT and both of the Appellant's witnesses.

15

The appeal was dismissed by UTJ Gleeson. She determined that the hearing before the FTT had not been unfair. She concluded, at [45], that: “A careful reading of the transcript shows that the Judge did ask many questions, but there is no indication that she did so in an aggressive manner”. She also considered, at [48], that, if there had been procedural unfairness, the Appellant's then counsel “would not have hesitated to say so at the hearing”.

Transcript of FTT Hearing

16

I propose to set out some of the passages relied on by Mr Biggs although in doing so I fully accept, as he submitted, that the transcript must be viewed as a whole and that a transcript does not fully convey what happened in a hearing.

17

Mr Biggs submitted that, in both of the following extracts, the FTTJ was pursuing her own line of enquiry which went beyond clarification questioning. She was testing the Appellant's case that he went to Queensway College with Mr Islam. He relied on both the extent and the nature of the questioning, which Mr Biggs suggested was better characterised as cross-examination and which, he submitted, went beyond the proper function of a judge as set out in Jones v National Coal Board [1957] 2 QB 55 and other cases.

“Q. Who told you about Queensway College?

A. I found it online.

Q. And which other colleges did you look at?

A. I found it, another one is...

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