The Queen (on the application of Malvinder Kaur) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Karen Steyn |
| Judgment Date | 15 March 2017 |
| Neutral Citation | [2017] EWHC 481 (Admin) |
| Date | 15 March 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3723/2016 |
[2017] EWHC 481 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Karen Steyn QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/3723/2016
Tom Tabori (instructed by Expert Law Solicitors) for the Claimant
William Hansen (instructed by Government Legal Department) for the Defendant
Hearing dates: 22 February 2017
Karen Steyn QC:
A. Introduction
The Claimant seeks to challenge the lawfulness of the Defendant's decision of 16 March 2016 to give her notice of her liability to removal from the United Kingdom, pursuant to s.10 of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014). In addition, the Claimant challenges the lawfulness of her detention by the Defendant from 16 March 2016 until 13 April 2016.
The claim was filed in the Upper Tribunal (Immigration and Asylum Chamber) on 29 March 2016. In view of the challenge to the lawfulness of the Claimant's detention, which is not within the scope of the Upper Tribunal's jurisdiction, the claim was transferred to the Administrative Court on 27 June 2016.
By an order dated 20 September 2016, Rhodri Price Lewis QC, sitting as a Deputy High Court Judge, granted the Claimant permission. The Judge made the following observations:
"The Claimant's leave to remain was curtailed for having used deception in order to obtain that leave on the basis of ETS SELT Source Data showing the Claimant's TOEIC certificate as having been found 'invalid'. That is the very material that the President of the Upper Tribunal, Immigration and Asylum Chamber, expressed serious concern about in SM and Qadir v Secretary of State for the Home Department [2016] UKUT 00229 (IAC). This 'generic evidence' was found to suffer 'multiple frailties'. The position should be reconsidered in the light of that case and with the opportunity for the Claimant to put forward any evidence of her own as was done by the Appellants in SM and Qadir."
As I explain below, the essential issue before me is whether the claim should be dismissed on the grounds that the Claimant had an adequate alternative remedy, in the form of an out-of-country appeal to the First-Tier Tribunal ("FTT"). The Claimant contends that (a) she has no right to bring an out-of-country appeal (the right she once had, having lapsed), and so she has no alternative remedy; (b) if she has a right to bring an out-of-country appeal, she contends this alternative remedy is not adequate or there are special or exceptional factors justifying the Court exercising its judicial review jurisdiction; and (c) in any event, she contends the Secretary of State has acted conspicuously unfairly in requiring the Claimant to pursue an out-of-country appeal rather than a judicial review. In addition, I am asked to address the Claimant's challenge to the legality of her detention.
B. The Defendant's application for a preliminary issue to be determined
On 26 January 2017 the Defendant filed an application for the question whether the claim should be dismissed on the grounds the Claimant has an adequate alternative remedy to be determined as a preliminary issue. At the hearing before me, Counsel for the Claimant agreed that this issue should be determined as a preliminary issue.
I raised the question whether the Defendant's application for the alternative remedy question to be determined as a preliminary issue (rather than as a matter that would potentially be relevant to the grant of relief at the end of a substantive hearing) constituted, in effect, an application to set aside the permission decision, contrary to CPR r.54.13. Counsel for the Defendant drew my attention to R (Islam) v Secretary of State for the Home Department [2016] EWHC 2491 (Admin) in which such an argument was raised and rejected by Sir Stephen Silber at [19]–[26].
In the circumstances, in particular having regard to the fact that the parties both agreed to this procedural course, and the fundamental principle that judicial review is always a remedy of last resort, I considered it appropriate to accede to the Defendant's application for the determination of a preliminary issue.
C. The Facts
The Claimant is a national of India. She entered the United Kingdom lawfully on 22 February 2011 with a valid Tier 4 General Student visa. She successfully applied on two further occasions for limited leave to remain as a Tier 4 General Student with the effect that on 9 December 2013 the Claimant had leave to remain in the United Kingdom until 20 March 2017.
On 10 February 2014, the BBC's Panorama programme revealed that widespread fraud had been used in the Test of English for International Communication ("TOEIC") — which is required in order for a person to be credited with the necessary points under the Immigration Rules — at several language test centres run by Educational Testing Services ("ETS"). In particular, the programme investigators discovered the use of "proxies" to take the oral English tests set by ETS.
Following the programme, ETS reviewed the validity of test scores it had awarded, including by undertaking voice analysis of the voice recordings submitted for the spoken English component. Where tests were found to be "invalid" or "questionable", the test certificates were cancelled. This resulted in the cancellation of thousands of test certificates. The general background is described more fully in the decisions of the Upper Tribunal in R (Gazi) v Secretary of State for the Home Department (ETS – Judicial Review) [2015] UKUT 00327 at [6]–[15] and SM and Qadir v Secretary of State for the Home Department (ETS – Evidence – Burden of Proof) [2016] UKUT 229 (IAC) at [8]–[26], as well as by the Court of Appeal in Mehmood and Ali 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].
The Claimant's TOEIC test result was found by ETS to be "invalid" by reason of an anomaly in the speaking test which indicated the presence of a proxy test taker. Having been supplied with ETS's findings, on 27 August 2014 the Secretary of State served on the Claimant notice of her liability to be detained and to be removed (Form IS.151A). The statement of reasons stated:
"You are specifically considered a person who has sought leave to remain in the United Kingdom by deception following information provided to us by Educational Testing Service (ETS), that an anomaly with your speaking test indicated the presence of a proxy test taker."
On the same day, the Secretary of State served a notice of her decision to remove the Claimant from the United Kingdom, pursuant to s.10 of the Immigration and Asylum Act 1999 (Form IS.151A Part 2, hereafter "the 2014 Removal Decision"). The notice informed the Claimant of her entitlement to appeal the decision under s.82(1) of the Nationality, Immigration and Asylum Act 2002 "after you have left the United Kingdom". In other words, she was given notice of her right to bring an out-of-country appeal against the 2014 Removal Decision.
The Claimant did not leave the United Kingdom and has not (as yet) sought to exercise her right to bring an out-of-country appeal. Instead, she lodged an in-country appeal in the FTT on 21 September 2014 which was (unsurprisingly) struck out on 5 November 2014. The Claimant then filed a judicial review claim in the Upper Tribunal on 27 November 2014.
As the Upper Tribunal explained in Roohi and Patel v Secretary of State for the Home Department [2015] UKUT 00685 (IAC) at [1]–[2], many claims were stayed awaiting the judgments of the Court of Appeal in Mehmood & Ali and Sood ( supra). "When those judgments were both available, the Tribunal's staff began, on judicial authority, a process of writing to the individual claimants inviting them to say whether, in the light of the authoritative statements of the law now available, they wished to proceed with their claim and, if they did, requiring them to submit amended grounds within a specified timescale, failing which their applications would be automatically struck out" ( Roohi at [2]).
The Claimant was amongst those to whom the Upper Tribunal wrote. She did not submit amended grounds within the time specified in the Upper Tribunal's direction dated 14 August 2015 and so, on 3 September 2015, the Claimant's judicial review claim was struck out. On 12 October 2015 the Claimant applied to amend her grounds. The Upper Tribunal treated this as an application to re-instate the claim. On 21 January 2016 Upper Tribunal Judge Jordan refused the application.
As indicated above, on 16 March 2016 the Secretary of State served a further Notice of Removal, informing the Claimant that she was "liable to removal from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014)" ("the 2016 Removal Decision"). The reasons given were in these terms:
"On 27/08/14 you was served IS151A and IS151a part 3 as LTR by Deception, you failed to adhere to your reporting conditions and became an absconder from 29/10/14. Your JR was concluded on 10/09/15, no further applications was made to the Home Office to regularise your stay in the UK. You are now a person liable to be detained and removed from the UK." ( sic)
The Claimant was detained on 16 March 2016. Removal directions were set two days later, with a view to removing the Claimant to India on 31 March 2016, and served on the Claimant on 21 March 2016. This claim was filed...
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