The King (on the application of Hammad Tazeem) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Tim Smith |
| Judgment Date | 18 July 2023 |
| Neutral Citation | [2023] EWHC 1828 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3351/2022 |
[2023] EWHC 1828 (Admin)
Tim Smith
(sitting as a Deputy High Court Judge)
Case No: CO/3351/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jay Gajjar, Muhammad Zahab and Stefanie Alvarez (instructed by SAJ Legal) for the Claimant
William Irwin (instructed by Government Legal Department) for the Defendant
Hearing date: 3 rd May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
Mr Tim Smith (sitting as a Deputy High Court Judge):
Introduction and Procedural Matters
This claim is a challenge brought by the Claimant against a decision by the Defendant to cancel his leave to enter the UK.
The claim lists four grounds of challenge which may conveniently be summarised as follows:
a) Ground 1: in failing to give the Claimant notice of the allegation/concern about the authenticity of the documentation for his English qualifications the Defendant adopted an unfair procedure
b) Ground 2: the decision to cancel the Claimant's leave to enter the UK was irrational and/or procedurally unfair
c) Ground 3: the Defendant's rejection of the Claimant's application for administrative review of the decision cancelling his leave to enter was irrational and/or procedurally unfair
d) Ground 4: the Claimant was detained unlawfully by the Defendant
Permission to proceed to a substantive hearing was granted by Susie Allegre (sitting as a Deputy High Court Judge) on all four grounds on 17 th January 2023, whereupon the Defendant filed Detailed Grounds of Defence on 23 rd February 2023. Subsequently the Claimant sought permission to amend his Grounds. This was permitted by Order of the Court dated 23 rd March 2023. The Defendant filed amended Detailed Grounds of Defence on 29 th March 2023.
It was on this basis that the case proceeded before me.
Background Facts
The Claimant is a 20 year old student from Pakistan. On 3 rd September 2022 he was granted leave by the Defendant to enter the UK and remain for a course of study at De Montfort University in Leicester. The course was a three-year bachelor's degree in Business and Management preceded by a one-year foundation course.
Admission by the University to study the course was conditional upon the Claimant demonstrating a sufficient command of English. The Claimant's case is that he had demonstrated this by providing a results card for his intermediate examination by the AJ and K Board of Intermediate Education in Mirpur, and that prior to registering for the course he also took and passed a test for proficiency in English conducted by the Oxford International Education Group (“OIEG”).
The claim bundle includes a one-page screenshot, apparently from OIEG's website, which appears to indicate in a drop-down field that the Universities whom OIEG supports include De Montfort University. More relevantly there is also an email dated 1 st July 2022 (obtained subsequently by the Claimant) from a Rochelle Barker of OIEG bearing the subject heading “Hammad, Tazeem 632675” addresses to an email address at Maria Consultancy and copied to “wkwan” at OIEG which advises:
“To all
Hammad, Tazeem with the student number: 632675 passed their credibility interview.
I can confirm, I, Rochelle Barker, conducted this interview with the above applicant”
On 8 th September 2022 the Claimant left Pakistan for the UK. He arrived at Heathrow Airport on 9 th September 2022 at around 18:00 hours.
Prior to being permitted to enter the UK the Claimant was interviewed by Ms Richards, one of the Defendant's Heathrow Border Force desk officers. The interview took place at 21:30 hours on 9 th September and was conducted by Ms Richards with the Claimant alone. Ms Richards has said in a written note that:
“On arrival the passenger was asked where had just come from, however despite asking him three times he did not appear to understand what I was asking until I rephrased the question to, “have you come from Pakistan””
This note did not purport to be a witness statement but Ms Richards did subsequently provide sworn witness evidence having consulted her notes.
Ms Richards's witness statement goes on to record that she asked the Claimant a question about his intended course of study which he answered in the same way as it was answered on his form. She then asked him a question about his previous course of study which she says he was unable to answer at all.
Ms Richards explains that in light of the Claimant's apparently poor command of English (despite the fact that his reason for entry was to pursue a course of higher education study) the Claimant was referred for further interviews.
The Claimant was then interviewed again at 23:43 hours on the same day by another of the Defendant's Border Force officers, Mr Badal. Mr Badal has produced a sworn witness statement in this case. Whilst he does not append any verbatim records of the second and third interviews with the Claimant Mr Badal's statement indicates that he checked his contemporaneous notes of the interviews before finalising his witness statement. Those hand-written notes are appended to his witness statement.
At this point I note that there is a dispute between the Claimant and Mr Badal as to what happened at the second and third interviews. The Claimant has filed a witness statement in the proceedings in which he gives his own account of the interviews. Where there is a dispute on a material issue of fact between the two witnesses I note it in the summary I give below.
Mr Badal's account of the second interview includes the following elements:
a) The Claimant requested an Urdu interpreter at the outset of the interview. When asked by Mr Badal why he wanted an interpreter Mr Badal's notes record that the Claimant answered “Because I cannot speak in English”. Mr Badal does not understand Urdu and was unable to conduct the interview using Urdu. He therefore arranged for an Urdu interpreter from the Defendant's approved supplier, Big Word, to assist. (By contrast the Claimant's witness statement records that he had asked for an interpreter because, in summary, he was tired after a long journey and anxious at being interviewed by an official at the conclusion of what was his first solo journey overseas; that the officer conducting the interview spoke quickly with a strong British accent; and that the officer spoke with him abruptly in a hostile manner frequently speaking over him. Mr Badal denies that he spoke quickly or over the Claimant, or that he has a strong British accent)
b) At the outset of the interview the Claimant was asked through his interpreter whether he was “fit and well to be interviewed” and he confirmed that he was
c) During the interview the Claimant was asked twenty five questions about his degree course and the Oxford International English Test he took beforehand to demonstrate his proficiency in English. Mr Badal's hand-written notes of the question and answer session he conducted with the Claimant run to 7 pages. The Claimant signed each of those pages
Mr Badal explains that the results of this second interview gave him cause for concern as to whether the Claimant's level of proficiency in English was what he had represented it to be. Mr Badal therefore referred his findings and his concerns to a more senior Border Force officer, Mr Brown. In discussions they concluded that the Claimant should be served with notices cancelling his leave to enter and requiring him to return to Pakistan. The relevant notices were drafted by Mr Badal and reviewed by him with Mr Brown.
Having concluded that the Claimant should be refused entry Mr Badal then accompanied the Claimant to an interview room at 02:32 where he commenced a third interview with him. This third interview was more procedural than investigatory and was for the purpose of presenting and explaining to the Claimant the decision to cancel his leave to enter. Mr Badal's witness statement records the following elements of this third interview:
a) The Claimant again requested an Urdu interpreter at the outset and one was arranged for him from Big Word
b) The Claimant again confirmed through his interpreter at the outset that he and the interpreter understood one another well and that he was fit and well to conduct the interview. Mr Badal adds that at this point the Claimant appeared to him to be alert and “attentive and responsive”
c) In view of the decision to cancel the Claimant's right of entry Mr Badal had generated two other documents in advance of the interview. One was a form by which, if signed, the Claimant would waive his right to an administrative review of the decision to cancel his leave (the “AR Waiver Form” IS301) and the other was a separate document explaining the content and effect of the AR Waiver Form (the “AR Waiver Explanation form”). The forms were explained to the Claimant through the interpreter. Mr Badal said that the Claimant “chose to take his time” to consider the form as explained to him. He then answered “No” to the question on the form asking “Do you intend to make an application for Administrative Review of the decision to refuse you entry to the UK?”. Finally Mr Badal confirms that in his view the way in which the AR Waiver Form was completed is consistent with the answers the Claimant was giving verbally as he was taken through the form by the interpreter. The form was then signed and dated by the Claimant; Mr Badal had indicated where to sign with a cross because (according to his evidence) the Claimant had said...
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