The Queen (on the application of Shahid Iqbal) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Karon Monaghan |
| Judgment Date | 24 January 2017 |
| Neutral Citation | [2017] EWHC 79 (Admin) |
| Docket Number | Case No: CO/559/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 January 2017 |
[2017] EWHC 79 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Karon Monaghan QC
Sitting as a Deputy High Court Judge:
Case No: CO/559/2016
Mr Biggs (instructed by Mayfair Solicitors) appeared on behalf of the Claimant
Mr Tankel (instructed by the Government Legal Department) appeared on behalf of the Defendant
Hearing dates: 6 December 2016
Karon Monaghan QC:
Introduction
This claim concerns a decision to refuse the Claimant entry to the UK as a Tier 2 (General) Migrant on 10 th February 2015 and to detain him until his release on 12 January 2015. This followed a decision to remove the Claimant, made under section 10(1) of the Immigration and Asylum Act 1999 ("IAA") dated 26 th January 2016. The decision to remove was based upon the Defendant's finding that the Claimant had submitted a certificate from Educational Testing Service ("ETS") to his sponsor in order for them to provide him with a Confirmation of Acceptance of Studies ("CAS"), for the purposes of an earlier application for leave to remain as a student. This is one of a large number of "ETS cheat" cases (as they have come to be known).
The Claimant contends that he had not engaged in any such deception and that the decision of 26 th January 2015 is susceptible to judicial review. The Claimant says that it is necessary for the court to decide the existence or non-existence of the relevant precedent fact upon which the exercise of the power under section 10 depended: that is, whether the Claimant had used deception in seeking leave to remain. The Claimant further contends that there was no lawful basis for the decision to remove him since he had not been "notified" of the section 10 decision and in addition he was outside the UK at the date upon which the Defendant says he was notified. The Claimant contends that if the decision under section 10 was unlawful, as having no lawful basis for it, then it must follow that his detention was unlawful.
It is necessary to say something about the unsatisfactory background to the hearing. I have set out in short form the Claimant's claim. In response the Defendant filed Summary Grounds of Defence on 30 th March 2015. These included generic claims concerning matters relating to the English language tests conducted by ETS, in particular that significant fraud in the taking of such tests by, for example, the use of proxy test-takers, had been uncovered. The Defendant also stated in her Summary Grounds that following a thorough investigation by ETS, once the allegations of widespread fraud became known, ETS informed the Defendant that the Claimant's test score had been cancelled "due to substantial evidence of invalidity being present". This was said to be because ETS's voice software had indicated that the Claimant's language test score was obtained by use of a proxy tester. The Defendant filed two generic witnesses statements (that is, not addressing the Claimant's case specifically) with her Summary Grounds which I will come back to. The Defendant's position was that the section 10 decision was lawfully made and that it was properly notified and that in consequence the detention was lawful. The Defendant had also contended that permission should be refused because of the alternative remedy available to the Claimant, namely an appeal to the First-Tier Tribunal.
At an oral renewal hearing on 26 th April 2016, permission to apply for judicial review was granted by HHJ Gore (sitting as a Judge of the High Court). I am told by counsel that an application had been made by the Defendant (I assume before that date) to stay this claim pending determination of a lead ETS cheat claim but that was unsuccessful. HHJ Gore gave the usual directions and therefore directed that detailed grounds for contesting the claim were to be filed and served along with any written evidence within 35 days of the date of his order (in accordance with CPR r54.14). On 6 th June 2016 the Defendant applied for an extension of time in which to file and serve her Detailed Grounds of Defence until 30 th June 2016 and that application was granted. I am told by counsel that a further application for a stay was made by the Defendant thereafter — again to await the decision in the lead ETS cheat case and again this was refused. However, the Defendant did not file and serve Detailed Grounds of Defence or any further evidence.
This hearing was listed thereafter with a time estimate of one day for the full hearing of this claim. According to counsel for the Defendant, Mr Tankel, some discussions took place during July with a view to compromising the claim. There was correspondence that I have seen which indicates that the Secretary of State had agreed to withdraw the decision of 10 February 2015 (refusing leave to enter) (see letter dated 15 July 2016) on terms that were ultimately not agreed. The Defendant, however, did not then or at any time thereafter file or serve Detailed Grounds of Defence or further evidence. As Mr Tankel fairly says, this appears to have been borne out of a misplaced hope on the part of the Defendant that the case would "develop differently".
Instead on 5 th December 2016 – the day before the hearing – the Defendant wrote to the Claimant and the Court stating that she would withdraw the decision under section 10, enclosing a draft consent order confirming in its preamble that the decision was withdrawn and that it should therefore "be treated as having no legal effect". The preamble also stated that: "The Defendant agrees that "notice of a decision purportedly pursuant to section 10 of the Immigration and Asylum Act 1999… was not given to the Claimant until after he returned to the UK". The terms of the draft consent order required the Claimant to withdraw his claim save his claim for damages for unlawful detention which it was said should be transferred to the Queen's Bench Division ("QBD"). Later in the day (about 6pm), the Defendant served some further evidence on the Claimant. The only relevant evidence it appears from argument before me concerns the "Look up Tool" which I will come back to. Suffice it to say for now that it was not filed with the court and it was not drawn to my attention until the afternoon of this hearing.
Accordingly the claim came before me for a full hearing without the Defendant having filed or served Detailed Grounds of Defence. The Defendant had served a Skeleton Argument shortly before the hearing in which she argued that the whole matter should be transferred to the QBD. This would be in respect of the detention claim only since everything else had fallen away. The Claimant submitted to me that that was not the appropriate course because the Defendant does not concede that the decisions were unlawful and so it is necessary to determine the legality of the decisions for the purposes of determining whether the detention was lawful or unlawful: if unlawful, the claim can then be transferred to the QBD for damages to be assessed. The Defendant's counsel made clear to me, however, that the Defendant was not ready to proceed on the legality question and that she did not wish me to go ahead with this hearing because there were no Detailed Grounds of Defence (and indeed, as became clear later on and as I will come back to, relevant evidence on which the Defendant would have wished to rely had not been filed). The Claimant was adamant that the hearing should proceed and reminded me that CPR r 54.14 precludes the Defendant from taking any part in the proceedings because she has failed to file Detailed Grounds and she had not applied for relief from sanctions.
At the outset of the hearing I determined that the claim should proceed in the Administrative Court. The question whether the decisions were lawful is a matter for this court to determine on ordinary public law principles, bearing in mind that the Defendant still asserts that they were lawful and that in consequence the detention was lawful. If I conclude that the detention was unlawful, it is at that point that the matter should be transferred to the QBD for the assessment of damages. I also determined that I should proceed to hear the claim. This is because there was simply no good reason why the Defendant was not ready. It was apparent some time ago that a stay would not be granted and that a settlement was not going to be achieved. There was no explanation provided by the Defendant at all as to the reasons for failing to file and serve Detailed Grounds of Defence. At best I have counsel's deduction that it was borne out of "misplaced hope". That is not a good explanation. It was not even clear why the decisions under challenge had been withdrawn or indeed, at certain points in oral argument, which decisions had been withdrawn (whether the section 10 decision or the decision to refuse entry only). Certainly it was not conceded that the decisions were unlawful. Mr Tankel (to whom I am very grateful for the considerable assistance he was able to provide to me in difficult circumstances) conveyed his instructions that the decision of the 26 th January (on which the other decisions rested) was revoked because the Claimant asked the Defendant to revoke it. This notwithstanding (as Mr Tankel was also able to inform me) that the Defendant intended to make a new decision – against which (if unfavourable), the Claimant would not have the right of appeal (the rules on appeals having changed since the date of the earlier decision).
Having decided to go ahead with the hearing, that left the question of the Defendant's position since she is barred from taking part in these proceedings unless I directed otherwise. Mr Biggs agreed that...
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