Secretary of State for the Home Department v QY (China)

The respondent to this appeal, Ms Y, is a Chinese national who came to the United Kingdom lawfully as a student in June 2005. At the end of that year she obtained an extension. It was a condition of her stay that she was not to take paid employment for more than 20 hours a week during term-time. Just over a year later, in July 2006, immigration officers found her working apparently long-term and full-time at a restaurant in Felixstowe. Enquiries produced no persuasive evidence of college attendance.

She was detained and served with a notice of removal pursuant to s.10 of the Immigration and Asylum Act 1999. The legality of this procedure was contested by judicial review, but Wilkie J [2008] EWHC 3072 (Admin) rejected the challenge, and it has not been renewed. Meanwhile, however, the respondent has been kept in the United Kingdom by order of Owen J made in the judicial review proceedings as long ago as 4 August 2006. By the time her judicial review claim came on for hearing she had also claimed that removal, if otherwise lawful, would violate her article 8 rights. The Home Secretary, to whom this claim was made in the first instance, treated it as a discrete claim but rejected it and certified it as clearly unfounded.

The consequence of such certification, if valid, is that any appeal to the AIT must be conducted from outside the United Kingdom (Nationality, Immigration and Asylum Act 2002, ss.92(1) and (4)(a), 94(2)). While to an outside observer this might not seem a dramatic step, both the Home Office and immigrants’ advisers know that it is the end of the overwhelming majority of appeals: hence the store set by it in this and other cases.

I would wish to reserve the question, which has not been argued below or before us, whether the article 8 claim was in law capable of being advanced as a discrete claim rather than being an element for determination, if anywhere, in the decision whether or not to direct removal.

In the event, although he rejected all Ms Y’s challenges, both procedural and substantive, to the removal decision itself, Wilkie J allowed this one. He said:

51.

Mr Dunlop, for the Secretary of State, contends that the Article 8 argument really flows directly from my conclusions on section 10, but in my judgment that overstates the position. Whilst the section 10 decision being lawful means that if she is removed she can be removed without first having availed herself of an in-country right of appeal and has an out-ofcountry right of appeal, the Article 8 claim that she makes is separate and distinct, and would normally carry with it an incountry right of appeal, at which the whole question of her studies, both prior to and post the decision of 26th July, would fall to be considered by the AIT on the question whether removal would engage her Article 8 rights and whether it would be proportionate in the sense generally understood.

52.

The only reason that the claimant may be denied an incountry right of appeal is because the Secretary of State, on 25th March 2008, has certified her Article 8 claim as clearly unfounded, that is to say the allegation is so clearly without substance that the appeal would be bound to fail. That is an extremely high test and although there are difficulties with much of what the claimant has subsequently submitted, in particular her inconsistency as to which college it was that she was at during the period from February to July 2006, she has furnished subsequent material to show that she is currently engaged full time in education. As the Court of Appeal identified in the case of OA , it is by no means obvious that removing a student in the middle of their course does not engage their right to a private life and the circumstances may conceivably be such that the interference with her private life would be disproportionate. It may well be that an appeal in relation to the alleged breach of Article 8 would not succeed before an Immigration Tribunal, but in my judgment the circumstances looked at in the round are not so clear-cut that it can properly be said that the allegation is so clearly without substance that the appeal would be bound to fail.

53.

Accordingly, whilst I am entirely unpersuaded that a judicial review lies in respect of the section 10 decision to remove, in my judgment the decision of the Secretary of State to certify the Article 8 claim as clearly unfounded was one which was not open to her on the full facts of this case, and therefore that aspect of the judicial review claim must succeed.

With permission granted on sight of the papers by Arden LJ the Home Secretary appeals to this court on four grounds. A cross-appeal on the removal decision has been abandoned. It is convenient to deal with the fourth of the grounds at the outset.

It is said on behalf of the Home Secretary that Wilkie J erred in deciding the challenge to the certification of Ms Y’s article 8 claim for himself rather than by applying a traditional Wednesbury test to the Home Secretary’s judgment.

Such a submission can no longer be routinely made in the light of the recent decision of the House of Lords in ZT (Kosovo) [2009] UKHL 6. In the leading speech at §23 Lord Phillips said this:

Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.

In the same vein, Lord Brown at §75 said:

As I have said, the critical question for the Court's determination in these cases is: could the AIT possibly allow an appeal against the rejection of the claim or would it be bound to dismiss it (again, the opposite sides of the same coin)? Could the Court ever reach the position of saying: we ourselves do not think that an appeal to the AIT in this case would have been bound to fail but we think that it was reasonable for the Secretary of State to decide that it would? In my opinion it could not. If the Court concludes that an appeal to the AIT might succeed, it must uphold the challenge and allow such an in-country appeal to be brought.

Of the other members of the Committee, Lord Neuberger (§83), Lord Hope (§53-5) and Lord Carswell (§58) took a similar but more flexible position. All, it seems to me with respect, considered that, because of the essentially forensic character of the judgment he has to make, the court is generally as well placed as the Home Secretary and so, at least where there are no issues of primary fact, can ordinarily gauge the rationality of a certification decision by deciding whether it was right or wrong.

It may be that it was because Mr Drabble QC, for the respondent, was seeking a result that would allow him to reopen the primary facts (though not before us) that Mr Dunlop for the Home Secretary took the stand he did. But in the present case there was no call for it. The practical effect of ZT (Kosovo) is that judicial review in a ‘pure’ certification case like the present is akin to review for error of law.

To their Lordships’ reasons for adopting this position I would respectfully add another which seems to me important. It is that in making a certification decision the Home Secretary acts as judge in his own cause, because to certify a claim when rejecting it is to render an appeal against the rejection extremely difficult to pursue. This too would seem to call for close judicial scrutiny.

I consider therefore that Wilkie J committed no error of legal principle in approaching certification as, effectively, an issue on which he must reach his own conclusion. There was no particular element of the case which called for a more deferential approach.

Since the above passage was drafted the decision of a different constitution of this court in R (AK, Sri Lanka) v Home Secretary [2009] EWCA Civ 447 has come to our attention. While it does not respond in quite the same terms as we have done to ZT (Kosovo), it is a decision on Rule 353. We have therefore not considered it necessary to invite further submissions in the light of it.

The fact that members of the House in ZT (Kosovo) reserved the possible need to respect the Home Secretary’s primary fact-findings is, however, a reminder that a certification challenge is still by way of judicial review. It ought logically to fasten only upon the same materials as the Home Secretary had, or (I would accept) ought to have had, before her when deciding whether to certify. The Home Secretary’s contention is that Wilkie J erroneously brought into account evidence which had not been in the hands of the Home Office at the material time.

On 25 March 2008, when the certificate was issued, the evidence before the Home Office consisted, in addition to the evidence arising from the raid on the Felixstowe restaurant, of a statement in which Ms Y said that she had been enrolled as a student at Great Chapel College in London up to 27 November 2006, together with documentation indicating full-time attendance at an unrecognised institution, Forbes College, from February to December 2006. Neither was compatible with what had been found on the raid.

At the Administrative Court hearing, however, there was a witness statement made by Ms Y on 19 May 2008, annexing documentary evidence of attendance at a number of courses between January 2007 and May 2008. It is submitted by Mr Dunlop for the Home Secretary that it is only by taking this evidence into account that the judge can conceivably have found in Ms Y’s favour, and that to do so was contrary to legal principle. Such fresh evidence may support a fresh claim within Rule 353, but it cannot logically affect the validity of the certification once made.

For the respondent Mr Drabble QC points out that in the leading case of Razgar [2004] AC 368 post-decision expert evidence was admitted in support of judicial review. He submits that in order to do as much justice as possible in asylum cases the courts will frequently look at post-decision material. Mr Dunlop accepts that for certain purposes such as disposal this is right, as the decision of Richards J in Razgar [2002] EWHC 2554 Admin, §20, illustrates; but he contends that the material adduced in the present case is off limits.

For my part I think it unnecessary for our present purpose to resolve this debate, not least because the introduction in late 2004 of Rule 353 has formalised the process of reconsideration. What is necessary is, first, to recall that Wilkie J held the decision to remove to be legally beyond challenge. The reasons include his finding that a proper opportunity had been given to Ms Y to put her case before the decision was taken. What we are now concerned with is the extent, if any, to which an entirely lawful decision impinges on Ms Y’s right to respect for her private life.

As to this, the judge’s decision is, if I may so, Delphic. While he said no more (§52) than that “it is by no means obvious that removing a student in the middle of their course does not engage their right to a private life and the circumstances may conceivably be such that the interference with her private life would be disproportionate”, it is Mr Dunlop’s submission that to overset certification on this bald ground is to hand every overseas student who breaches the terms of their stay an in-country article 8 appeal against removal.

OA (Nigeria)[2008] EWCA Civ 82, the case from which Wilkie J drew the proposition I have just quoted, was on any view an unusual case. Without setting out the detail, it concerned a student who had done her best to comply with the rules but had been misled and cheated by people she relied on. Mr Dunlop’s submission is that whatever Ms Y has now arranged for herself cannot have created a measure of private life which it is disproportionate to disrupt by removing her. To say that it can have done so is to say that it is always arguably unlawful to remove a student in the very circumstances which according to the Immigration Rules render them liable to removal.

To this powerful argument Mr Drabble responds that, notwithstanding the finding that the s.10 decision to remove was properly reached, there remains for article 8 purposes a factual dispute about the background to the case, including the question whether Ms Y was in truth working in breach of condition or was in continuous education.

Even if it did not have this asserted consequence, which would of course unravel the entire removal decision, I would consider the argument to be untenable. The premise on which not only the Home Secretary but Ms Y has to approach article 8 is that an otherwise lawful removal is imminent. The question is then whether any consequent disruption of her private life may lack justification under article 8(2). It is difficult to see how the elements of this calculation can include the matters which have already been the subject of a lawful decision. On the contrary, it seems to me at present (see §4 above) that the reverse is probably the case: the removal decision was apt to embrace any article 8 issue.

At all events Mr Drabble is straightforward in allocating his entire article 8 case to Ms Y’s evidence of a succession of courses of study until almost the eve of Wilkie J’s decision in October 2008. He accepts with equal candour that but for the injunction granted by Owen J in August 2006 Ms Y would not have been here at all; that but for the issue of the judicial review proceedings challenging the removal decision Owen J could not have made his order; and that the removal decision made on the ground that instead of studying she had entered a labour market which was not open to her has been held legally sound. In this situation it seems to me that Mr Drabble’s edifice of argument has no visible means of support: it is entirely self-referential and self-sustaining.

Assuming then, without deciding, that removing a foreign national who has forfeited her right to be here can in circumstances such as the present ones amount to an interference with her private life within the meaning and intent of article 8(1), her removal is manifestly lawful and, given the fact that but for her unsuccessful legal challenge she would not have remained here, manifestly proportionate. It seems to me, in fact, one of the rare cases where, for the reason given in the preceding paragraph, there is nothing of substance to place in the applicant’s side of the scales.

I would therefore allow the Home Secretary’s appeal and dismiss the second limb, as well as the first, of Ms Y’s application for judicial review.

I agree.

I also agree.