The Queen (on the Application of Hussain) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales |
| Judgment Date | 20 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1376 |
| Docket Number | CO/2015/1404 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 October 2015 |
[2015] EWCA Civ 1376
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Sales
CO/2015/1404
Mr Michael Biggs (instructed by Mayfair Solicitors) appeared on behalf of the Applicant
The Respondent did not attend and was not represented
This is a renewed oral application for permission to appeal in relation to a decision of the Secretary of State to make a decision under section 10 of the Immigration and Asylum Act 1999 that the appellant should be removed on the ground that he had used deception in seeking leave to remain.
The Secretary of State's case is that the appellant, who was in the country as a student, cheated in taking an English exam and fraudulently obtained a TOEIC English language certificate. This is a case supported by evidence supplied by the examining organisation which administered the test in witness statements which are not before the court on this application.
The appellant brought judicial review proceedings in relation to the Secretary of State's decision and sought interim relief to restrain the implementation of that decision and removal directions made pursuant to it. The application for judicial review was dismissed on the papers by Upper Tribunal Judge Taylor in a decision dated 13 February 2015 on the grounds that the appellant had a right to challenge the Secretary of State's decision, dated 12 January 2015, by means of an out-of-country appeal brought pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002, which by virtue of section 92 of that Act, was required to be pursued out-of-country rather than in-country. Upper Tribunal Judge Taylor held that the Secretary of State was entitled to reach a decision that the applicant had been fraudulent on the basis of the information provided by the examination body, ETS, and also ruled that the factual issues should appropriately be dealt with through the applicant exercising his right to an out-of-country appeal to the First-tier Tribunal which provided an adequate alternative remedy on the basis of which judicial review should be refused in the court's discretion.
The application for permission to seek judicial review was renewed orally before Upper Tribunal Judge McGeachy, who, in a decision dated 1 April 2015, again refused permission to bring judicial review proceedings, essentially on the basis that the appellant had a right of appeal out-of-country which constituted an appropriate alternative remedy such that judicial review should not be pursued.
That ruling was on the basis of a then first-instance decision in a case called Shahbaz Ali. Shahbaz Ali went on appeal, and this court held (see [2015] EWCA Civ 744) that the reasoning in the decision at first instance refusing judicial review on the grounds of the alternative remedy in the form of an out-of-country appeal was correctly decided. Thus it has confirmed the correctness of the basis on which Upper Tribunal Judge McGeachy refused permission to this appellant to seek judicial review.
Mr Biggs on the present application accepts that Upper Tribunal Judge McGeachy's decision cannot be impugned on the basis on which it was presented and decided by him. However, Mr Biggs makes an application to amend the grounds of appeal so as to take a new point which has emerged since Upper Tribunal Judge McGeachy's...
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