The Queen (on the application of Amit Sood) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lady Justice King,Lord Justice Richards |
| Judgment Date | 28 July 2015 |
| Neutral Citation | [2015] EWCA Civ 831,[2015] EWCA Civ 83 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2014/3382 |
| Date | 28 July 2015 |
[2015] EWCA Civ 831
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Ms D Gill
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Beatson
and
Lady Justice King
Case No: C4/2014/3382
Hugh Southey QC (instructed by Duncan Lewis Solicitors) for the Appellant
Lisa Giovannetti QC and Mathew Gullick (instructed by Government Legal Department) for the Respondent
Hearing date: 15 July 2015
I. Introduction
The sole issue in this appeal concerns the circumstances when, notwithstanding a person's right to an "out-of-country" appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), it is appropriate for his case to be dealt with in judicial review proceedings.
The appellant, Amit Sood, now aged 31, is a citizen of India who entered the United Kingdom as a Tier 4 (General) Student Migrant on 18 January 2010 on a visa valid until 31 July 2012. On 27 November 2012, his leave to remain was extended until 19 January 2014.
These proceedings arise as a result of three decisions made on 29 June 2014 by the respondent to this appeal, the Secretary of State. They were: (a) to remove the appellant from the United Kingdom, pursuant to section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act") ( "the section 10 removal decision"); (b) to refuse an application he made on 16 January 2014 for variation of his leave to remain as a Tier 4 (General) Student Migrant ( "the variation decision"); and (c) to detain him pursuant to the powers in Schedule 2 to the Immigration Act 1971 ("the 1971 Act") ( "the decision to detain").
The notice of the section 10 removal decision (in form IS151A Part 2) was served simultaneously with a notice also dated 29 June (in form IS151A) which stated that the Secretary of State was satisfied that the appellant was liable to be removed because he had used deception in seeking leave to remain in that the English language test he had taken on 25 July 2012 furnished with his application for leave contained "an anomaly" with his speaking test which "indicated the presence of a proxy test taker".
In these proceedings, filed on 3 July 2014, the appellant claims that the Secretary of State's refusal to vary the appellant's leave, and her conduct in detaining him were unlawful. Thereafter, removal directions set for 4 July 2014 were cancelled and, on 28 July 2014, the appellant was released from detention. Blake J refused permission to apply for judicial review of the challenged decisions on the papers on 11 August 2014, and the appellant's renewed application for permission was refused in an order dated 14 October 2014 by Ms D Gill, sitting as a Deputy Judge of the High Court: see [2014] EWHC 3876 (Admin). On 4 February 2015 I granted him permission to appeal against that order, but did not grant him permission to apply for judicial review.
Mr Southey QC has recently been instructed on behalf of the appellant. In the light of his review of the case, two applications were made on behalf of the appellant. The first, on 16 June 2015, is to adduce evidence that was not before the Deputy Judge. The evidence included a second witness statement of the appellant dated 5 June 2015, and a report by Dr Philip Harrison, a forensic consultant specialising in the analysis of speech, audio and recordings dated 5 February 2015, which criticised the evidence of Rebecca Collings and Peter Millington relied on by the respondent in all cases which challenged removal decision made on the ground of deception in language testing. Their evidence has been described as "generic" evidence because it does not provide the exact reason why ETS invalidated the certificate of a particular person or provide evidence relating to that person's personal circumstances but is based on the analysis of voice recognition software reviewed by two members of ETS's staff trained in voice recognition. I refer to the generic evidence at [19] and [32] below. The second, made formally by application notice filed on 1 July, is to amend the grounds of appeal. Although Ms Giovannetti QC, on behalf of the respondent, submitted that the grounds were neither pleaded in the judicial review claim, nor the subject of an application to amend the judicial review grounds, the court considered both on a de bene esse basis; i.e. without deciding whether the applications should be granted. At the conclusion of the hearing, we stated that the appeal would be dismissed. I now give my reasons for that decision.
The appellant has a right pursuant to section 82(1)(g) of the 2002 Act to an "out-of-country" appeal in respect of the section 10 removal decision. He has, for the reason I give at [29] below, no right of appeal against the decision to refuse his application for variation of his leave to remain. It is clear law that the court will permit a substantive challenge to a removal decision by the Secretary of State pursuant to section 10 of the 1999 Act to proceed by judicial review rather than by the appeal channel provided by Parliament, here an out-of-country appeal, only where that person can show there are "special or exceptional factors": see R (Lim) v Secretary of State for the Home Department [2007] EWCA Civ 733, R (RK (Nepal)) v Secretary of State for the Home Department [2009] EWCA Civ 359; and R (Anwar and Adjo) v Secretary of State for the Home Department [2010] EWCA Civ 1279, reported at [2011] 1 WLR 2552 and, most recently, R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744.
Mr Southey submitted that in the case of this appellant there are two factors which qualify as "special or exceptional" so as to justify him proceeding by way of judicial review. The first is that, as the result of a letter from the Home Office dated 8 February 2014, the appellant had a legitimate expectation that, if he took a further English language test, it would be taken into account in considering whether he met the English language requirements, and that this would be done while he was in the United Kingdom. Mr Southey also relied on what he described as "linkage" between the submissions that the decision to remove the appellant under section 10 of the 1999 Act was unlawful and the legality of his detention. Mr Southey submitted that the link was that the appellant was detained because he was said to have used deception in the July 2012 English language test. He also relied on the decision to refuse his application to vary his leave, contained in what he described as a composite decision dealing with leave and section 10. In short, he submitted that these circumstances constituted "special or exceptional factors" that should have led to the Deputy Judge concluding that his case should be considered by way of judicial review rather than by the statutory appeal.
In sections II and III of this judgment I set out or summarise the relevant legislation and the factual background. Section IV summarises the judgment below, and section V briefly considers the relationship between the section 10 notice and the variation decision. Section VI contains my reasons for concluding that the Deputy Judge was right to refuse permission to apply for judicial review.
II. The statutory provisions
These appeals are governed by the legislation in force prior to the significant amendments to the legislation governing the immigration appeal system made by the Immigration Act 2014, including the replacement of "in-country" appeals by administrative review. Those amendments took effect from October 2014 for new Tier 4 applications, and from 6 April 2015 for other categories of applicant.
Section 3(1) of the Immigration Act 1971 ("the 1971 Act") provides that a person who is not a British citizen shall not enter the United Kingdom "unless given leave to do so … [and] may be given leave to enter … or … leave to remain … either for a limited or for an indefinite period". By section 3(3)(a), "a person's leave … may be varied … by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions" attached to it. Section 3C relates to those with limited leave to enter or remain who apply for variation of the leave before their leave expires. It provides that in such a case the leave "is extended by virtue of" the section during the period pending a decision on the application, in which an "in-country" appeal could be brought, the withdrawal of the application, or where the applicant leaves the United Kingdom: see section 3C(2) and (3).
The material parts of section 10 of the 1999 Act provide:
"(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;
(b) he uses deception in seeking (whether successfully or not) leave to remain;
…
(2) Directions may not be given under subsection (1)(a) if the person concerned has made an application for leave to remain in accordance with Regulations made under section 9.
…
(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him."
The material...
To continue reading
Request your trial
-
Nabeel Ahsan v The Secretary of State for the Home Department
...since it was inherent in the statutory scheme. 42 The second such decision is R (Sood) v Secretary of State for the Home Department [2015] EWCA Civ 831, which was heard the day after the decision in Mehmood and Ali was handed down. That decision was of course treated as authoritative as re......
-
Secretary of State for the Home Department v Muhammad Shehzad and Another
...of State for the Home Department [2015] EWCA Civ 744, [2015] 1 WLR 461 and R (Sood) v Secretary of State for the Home Department [2015] EWCA Civ 831, [2016] Imm AR 61 it was held that there is only an out of country appeal in such cases and that judicial review is not normally available. 5......
-
The Queen (on the application of Malvinder Kaur) v Secretary of State for the Home Department
...[2015] EWCA Civ 744, [2016] 1 WLR 461 at [24]–[26], R (Sood) v Secretary of State for the Home Department [2016] EWCA Civ 831, [2016] Imm AR 61 at [16] and [19], and Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615 at [11]. 11 The Claimant's TOEIC test ......
-
Krystof Kedra Against The Advocate General For Scotland
...143; R (Mehmood) v Secretary of State for the Home Department [2015] EWCA 744; R (Sood) v Secretary of State for the Home Department [2015] EWCA Civ 831. There is no special or exceptional circumstance averred here. Decision [21] The petition was lodged before 22 September 2015 and accordin......
-
Court Of Appeal Dismisses Ryanairs Appeal In Connection With A Divesture Order Requiring Ryanair To Reduce Its Stake In Aer Lingus To No More Than 5%
...Iberia and Vueling. Information on Ryanair's appeal is available here. Footnotes 1 Ryanair v. Competition and Markets Authority [2015] EWCA Civ 83. 2 The CC closed on Apr. 1, 2014. Its functions were transferred to the Competition and Markets 3 Most of the minority stake was acquired in 200......