Upper Tribunal (Immigration and asylum chamber), 2017-12-13, JR/08596/2016
| Jurisdiction | UK Non-devolved |
| Date | 13 December 2017 |
| Published date | 11 December 2019 |
| Hearing Date | 07 November 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/08596/2016 |
Upper Tribunal
(Immigration and Asylum Chamber) Case Number: JR/8596/2016
|
Heard at Field House |
|
|
On Tuesday 7 November 2017 |
|
|
|
|
Before
UPPER TRIBUNAL JUDGE SMITH
Between
The Queen on the application of
MD JAYANAL [A]
MRS MAHDIA [B]
[M Z A]
Applicants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Applicant: Mr P Saini and Mr S Karim, Counsel instructed by M Q Hassan solicitors
For the Respondent: Mr C Thomann, Counsel instructed by Government Legal Dept
JUDGMENT
[Handed down on Tuesday 12 December 2017]
INTRODUCTION
-
This is an application for judicial review challenging three decisions made by the Respondent dated 31 May 2016 (“the First Decision”), 21 June 2016 (“the Second Decision”) and 5 October 2017 (“the Third Decision”). By the First Decision, the Respondent curtailed the First Applicant’s leave to remain and, by two separate decisions of the same date, curtailed the Second and Third Applicants’ leave in consequence. The Second Decision is a response to the pre-action protocol letter in relation to all three Applicants. The Third Decision accompanied the Respondent’s detailed grounds. I will come on to deal with the effect of that decision when looking at the detail of it.
-
Permission to challenge the First and Second Decisions was granted by Upper Tribunal Judge Frances following an oral hearing on 17 July 2017 for the following reasons (so far as relevant):-
“(2) The [First] Applicant’s leave was curtailed on grounds of deception in relation to his previous grant of leave to remain as a Tier 4 Student, under paragraph 323(ia) of the Immigration Rules. Leave to remain for his wife and child was curtailed under 323(ii); ceasing to meet the requirements of the Rules under which leave to enter or remain was granted.
(3) It is arguable that the Applicant’s deception was not relevant to the curtailment of his wife’s Tier 2 leave or that of her dependent child.
(4) The arguments made in respect to the Applicant have less force, but in the interests of the overriding objective and considering the family unit as a whole, all grounds are arguable.”
-
By an Order dated 30 October 2017, I granted the Applicants permission to amend their grounds to challenge also the Third Decision.
-
The underlying legal issues stem from an assertion by the Respondent that the First Applicant obtained a TOEIC (English language) certificate by use of a proxy test-taker (“the ETS allegation”).
BACKGROUND
-
The Applicants’ immigration history and background facts are as follows. The Applicants are all nationals of Bangladesh. The Third applicant is a child born here on 9 October 2011 but remains a Bangladeshi national as neither of his parents was settled in the UK at the relevant time.
-
The First Applicant entered the UK on 27 September 2009 with leave as a Tier 4 student valid to 31 October 2012. The Second Applicant entered the UK on 20 January 2011 as his dependent. The ETS allegation relates to a test which is said to have been taken on 15 November 2011 at Portsmouth International College. Using that certificate, the First Applicant applied for and obtained a Confirmation of Acceptance for Studies (“CAS”) from Blake Hall College and then applied on 6 October 2012 for further leave to remain as a student which was granted on 22 January 2013 to 28 February 2015. The Second and Third Applicants were dependent on that application.
-
On 9 January 2015, the Second Applicant sought leave to remain as a Tier 2 migrant and she was granted leave on 26 January 2015 to 28 January 2019. The First and Third Applicants were her dependents on that application. The leave of all three Applicants was curtailed on 23 July 2015 on the basis that their leave granted on 22 January 2013 had been obtained by deception.
-
The Applicants made representations via their solicitors by letter dated 30 July 2015 (“the 30 July letter”) which led to a reconsideration of the decision (following judicial review proceedings challenging the July 2015 decisions and an agreement to reconsider reached by way of a consent order). Leave was curtailed again on 31 May 2016 by way of the First Decision. A pre-action protocol letter was sent to which the Second Decision is a response. The Third Decision described in the detailed grounds as a “fresh decision” was then taken on 5 October 2017 and served with the detailed grounds.
-
Turning then to the Third Decision, that was not written in response to any representations from or on behalf of the Applicants. It appears to result from a view taken by the Respondent that it was necessary to supplement or further explain her reasons for the First and Second Decisions and to take one or two additional points. The letter begins:-
“This letter is supplemental, and should be read in conjunction with the original decision of 3 [sic] May 2016.”
-
The Court of Appeal deprecated precisely that form of words in Caroopen and Myrie v Secretary of State for the Home Department [2016] EWCA Civ 1307. In the detailed grounds, the Third Decision is described as a review of the Respondent’s position ([6]). There is no express acceptance that the First and Second Decisions are unlawful although it might be thought to be implicit in the submission at [12] of the detailed grounds that it would be “futile” to quash “the index decision” to permit a further review. Mr Thomann submitted that the Third Decision is something of a hybrid, on the one hand simply supplementing reasons to be read with the earlier decisions and on the other taking additional points which were always open to the Respondent but were not raised earlier.
-
As a matter of housekeeping, I also raise at this stage the witness statements of the First and Second Applicants dated 19 October 2017 which were filed at the back of the bundle for the hearing but not formally lodged or served separately. Mr Saini accepted that my consideration of the Respondent’s decisions is a review on standard public law principles rather than determination of the existence of any precedent fact. Since the witness statements were not before the Respondent at the time of any of her decisions under challenge, Mr Saini accepted that I should not take them into account when considering the substance of the decisions. He said that the relevance is as to what the Applicants would have said if given the opportunity to make representations (and therefore relevant to the procedural fairness ground). Mr Thomann accepts that if the Respondent is asked to reconsider her decisions in light of this more recent evidence she will be obliged to do so and to take into account what is said in the statements.
GROUNDS/ ISSUES
-
The Applicants originally raised three grounds. I gave the Applicants permission to amend their grounds to introduce four further grounds challenging the Third Decision. I did not by my decision give permission to argue those further grounds. However, two of those grounds overlap with the original grounds albeit challenging the Third Decision and the hearing therefore proceeded on those grounds taken together. For that reason, it is appropriate to grant permission to the Applicants to argue grounds five and six of the amended grounds.
-
Ground four deals with the legal consequences of the Third Decision and since I give permission to the Applicants to challenge the Third Decision, it is appropriate also to grant permission on that ground. Ground seven is a distinct ground which I will deal with following consideration of the first six grounds so far as it remains necessary to do so.
-
Grounds one and five are a challenge to procedural fairness. There is one distinct issue raised in ground five concerning a new reason for curtailing the Second Applicant’s leave but otherwise there is considerable overlap between the challenge to all three decisions on this ground. These grounds assert in short summary that the First and Second Applicants should have been interviewed about the ETS allegation and other matters prior to curtailment or at the very least given the opportunity to make representations prior to the decisions being taken.
-
Grounds two and six are a challenge to the lawfulness of the curtailment and whether the Respondent acted irrationally in curtailing the Applicants’ leave and maintaining the decision to curtail. Ground three challenges the lawfulness of the exercise of the Respondent’s discretion. This ground imports also consideration of the Respondent’s treatment of the Third Applicant’s best interests.
-
Mr Thomann reformulated the grounds as amended into five issues as follows:-
-
Was the Respondent entitled to curtail the First Applicant’s leave by reason of his deception?
-
If so, did the Respondent have power to curtail also the Second and Third Applicants’ leave and on what basis?
-
Did the Respondent lawfully exercise her discretion when curtailing leave?
-
Has there been any procedural unfairness arising from the way in which the decisions were made?
-
Is there any error of law in the...
-
To continue reading
Request your trial