The Queen (on the application of Veronica Gaogalalwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 06 July 2017 |
| Neutral Citation | [2017] EWHC 1709 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 July 2017 |
| Docket Number | Case No: CO/1573/2017 |
[2017] EWHC 1709 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Priory Courts, B4 7NA
Mr Justice Garnham
Case No: CO/1573/2017
Deborah Revill (instructed by Salam & Co Solicitors) for the Claimant
Naomi Candlin (instructed by Government Legal Department) for the Defendant
Hearing dates: 15 th June 2017
Approved Judgment
Introduction
Mrs Veronica Gaogalalwe applied, with the permission of His Honour Judge Wall QC, for judicial review of decisions of the Secretary of State for the Home Department dated 30 September 2016 and 25 November 2016. By the first of those decisions, the Secretary of State refused the claimant indefinite leave to remain in the United Kingdom; by the second, she ordered the claimant's detention pending her removal from the United Kingdom. Only the first of those two challenges is now pursued.
The claimant has been represented before me by Ms Deborah Revill; the defendant by Ms Naomi Candlin. I am grateful for their helpful and economic submissions.
At the commencement of the hearing today, I gave Ms Revill permission, on the claimant's undertaking to lodge the amended pleading and pay the appropriate fee, to amend her grounds to advance a fourth ground in addition to the three set out in her statement of facts and grounds.
I also gave the defendant permission to rely on detailed grounds of defence, a signed version of a witness statement from Ms Rachel Green and an expert report from Professor Peter French, all of which had been served late. Given that the claimant had sight of all that material for long enough to deal with it, I concluded that she would not in fact be prejudiced by its admission.
Background
The claimant, who was born on 28 November 1972, is a national of Botswana. She first came to the United Kingdom on the 1 April 2006, gaining entry pursuant to the terms of a visitor's visa which was valid until the 15 September 2006. Prior to the expiration of that visa, she sought and obtained leave to remain as a student. Thereafter, she commenced a number of courses of study and was granted successive extensions of her leave to remain as a student. Her latest leave expired on the 28 February 2015.
In support of her application for Leave to Remain as a Tier 4 General Student in September 2013, the claimant submitted a certificate of completion of the Test of English for International Communication (or "TOEIC"). That TOEIC certificate was provided by an organisation called the Educational Testing Service (or "ETS").
While present in the UK, the claimant says she obtained a number of qualifications. Those qualifications included a BTEC Higher National Diploma in Business Studies from EDEXEL, an Advanced Diploma in Business Studies from Cardiff Metropolitan University (in October 2012), a BA (Hons) (in 2013) and a Masters in Business Administration (in 2014). Ms Revill says the claimant was taught in English throughout.
In 2009 the claimant met a Mr James Warren, a British citizen, whom she married in August 2014. On 26 February 2015, the claimant applied for leave to remain as a spouse of a British citizen. That application was refused on 1 April 2016. The claimant was made the subject of a certificate under section 94 of the Nationality, Immigration and Asylum Act 2002. That certification had the effect that she was not able to exercise her right of appeal until she had left the UK. She has not exercised that right of appeal.
On the 12 April 2016, according to Ms Revill, the claimant instructed solicitors to make a further application on her behalf for indefinite leave to remain. She did so, first, on the basis of her ten year residence in the United Kingdom and second, on the basis of her family and private life in the United Kingdom. On 31 May 2016 the claimant received a letter from an organisation called CAPITA, on behalf of the Secretary of State, indicating that she had no leave to remain in the United Kingdom and should make arrangements to leave. Receipt of that letter was something of a shock to the claimant, who believed that by then her solicitor would have made an application for indefinite leave to remain. In fact, no such application was lodged until 13 June 2016.
By letter dated 30 September 2016, the decision letter in the present case, the application for indefinite leave to remain was refused on the ground that the claimant had overstayed her leave to remain since 1 April 2016, when the application to remain as a spouse of a British citizen was refused. The Secretary of State indicated that the claimant had had no leave to remain in the UK between 1 April 2016 and the date the application was received in June 2016, a period in excess of 28 days. Accordingly, it was said, the claimant was in breach of the Immigration Rules and, in particular, could not satisfy the requirements of paragraph 276B(v) of the Immigration Rules.
The letter set out the requirements of 276B of the Rules, sub-paragraph (v) of which provides as follows:
"(v) The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded…."
The letter went on:
"Consideration has been given to your application and it is noted from the above immigration history that following the refusal of your application for Leave to Remain as a Spouse of a Settled Person, on 1 April 2016, you did not seek to regularise your position in the United Kingdom until 13 June 2016 when you applied for Indefinite Leave to Remain under 10 years Long Residency."
Therefore you were without lawful leave between 1 April 2016 and the date of your application, a period of over 28 days. As such, you are in breach of immigration rules and therefore cannot satisfy the requirement of Paragraph 276B(v). You have provided no exceptional, compelling or compassionate grounds on which the lateness of your application should be disregarded.
The letter then addressed what was entitled "General Grounds for Refusal." It read as follows:
"In addition to the consideration in Parts 2–8 of the immigration rules, Paragraph 322 sets out the grounds on which applications should normally be refused.
In your application for leave to remain as a Tier 4 General Student dated 23 September 2013 you submitted a TOEIC certificate from Educational Testing Service ("ETS").
ETS has a record of your speaking test. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker. Your scores from the test taken on 28 March 2012 at London School of Technology have now been cancelled by ETS. On the basis of the information provided to her by ETS, the SSHD is satisfied that your certificate was fraudulently obtained and that you used deception in your application of 23 September 2013.
At the time you took your test, as you will have been aware, ETS was an approved provider of Secure English Language Tests (SELT) for UK immigration purposes. Its role as a SELT provider was to help ensure that those who seek to enter or remain in the United Kingdom are able to speak English. As recognised in Para 117B(2) of the Nationality, Immigration and Asylum Act 2002, those who can speak English are less of a burden on taxpayers and are better able to integrate into society. Although you did not rely on your TOEIC certificate for the purposes of your current application for leave to remain, your complicity in the fraud nonetheless contributed to an extremely serious attack on the maintenance of effective immigration controls and the public interest more generally.
Accordingly, I am satisfied that your presence in the UK is not conductive to the public good because your conduct makes it undesirable to allow you to remain in the UK. As false representations have been made in relation to a previous application, it is refused under paragraph 322(2), of the Immigration Rules as below:
322(2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave.
In your current application, at Section D10 of the SET (LR) form, you said that you have never used deception when seeking leave to remain. You go on to contest the Secretary of State's refusal of your previous application in this regard. Although note has been made of this, you have provided no evidence to support your contention and accordingly the refusal for previously employing deception is maintained.
As you fall for refusal under General Grounds you do not meet the requirement of 276B (iii) of the Immigration Rules and therefore your application for indefinite leave to remain is to be refused."
The Secretary of State then considered the application for indefinite leave to remain on the basis of the claimant's family and private life, explaining that the application had been considered under the 10-year partner and private life routes contained within Appendix FM and paragraphs 276ADE (1)-CE of the Immigration Rules, and outside the Rules on the basis of exceptional circumstances.
"There has not been a significant change in your circumstances since your previous refusal, except that you have been in the UK for a longer period. It is still not accepted that there would be insurmountable or...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2018-06-27, HU/06237/2017
...whether a case had been held to be invalid or questionable. I was referred to the cases of Ahsan [2017] EWCA Civ 2009, Gaogalalwe [2017] EWHC 1709 (Admin), Nawaz (ETS: review standard/evidential basis) [2017] UKUT 00288 (IAC), KS (India) [2018] EWCA Civ 836. Miss. Shaw referred me to the ca......
-
Upper Tribunal (Immigration and asylum chamber), 2018-04-24, HU/18088/2016
...4. At the hearing before me, Mr Melvin on behalf of the Secretary of State sought to rely upon the judgments in R (ota) Gaogalawe [2017] EWHC 1709 (Admin); R(ota) Nawaz [2017] UKUT 00288 (IAC) and MA [2016] UKUT 450 (IAC). He submitted that it was clear from the determination that the Judge......
-
Upper Tribunal (Immigration and asylum chamber), 2018-04-27, IA/00923/2016 & others
...(IAC) and Professor French’s conclusion therein at paragraphs 37 and 38. I was also referred to the case of Veronica Gaogalalwe [2017] EWHC 1709 (Admin) at paragraph 34, which deals with whether the Secretary of State can meet the legal burden of showing, on the balance of probabilities, th......
-
Upper Tribunal (Immigration and asylum chamber), 2017-09-20, IA/34454/2015
...reasoning given by the judge. He referred the Tribunal to a decision of the High Court in R (on the application of Veronica Gaogalalwe) [2017] EWHC 1709 and that the Appellant on that appeal was in the same position as the Appellant in the current appeal (see paragraphs 40-45). Thus he subm......