Mehmood & Anor, R (on the application of) v Secretary of State for the Home Department

The appeals of Sheraz Mehmood (“the first appellant”) and Shahbaz Ali (“the second appellant”) are lead appeals behind which 27 other appeals have been stayed. Mr Mehmood and Mr Ali are both citizens of Pakistan. They had leave to enter the United Kingdom as Tier 4 (General) Students. Mr Mehmood entered on 27 August 2011 and Mr Ali in April 2011. Their student visas were valid until 19 November 2013 (in Mr Mehmood’s case) and 30 December 2013 (in Mr Ali’s case). Before that date they both applied for a variation of the period of their leave.

The Secretary of State later invalidated the appellants’ leave by giving them notice pursuant to section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) of a decision by her to remove them, and refused their applications for variation of their leave. Section 10(8) of the 1999 Act (set out at [15] below) provides that notice of the decision to remove “invalidates any leave to enter or remain … previously given to him”. I shall refer to decisions under section 10 as “removal” decisions.

After the “removal” decisions, both appellants were detained pursuant to the powers in Schedule 3 to the Immigration Act 1971 (“the 1971 Act”). Mr Mehmood was detained from 4 December 2013 until 13 January 2014. Mr Ali was detained on 11 August 2014, but after these proceedings were filed on 28 August, the removal directions were stayed by Sir Stephen Silber and he was released on 1 September 2014.

Judicial review proceedings challenging the removal decisions were filed by Mr Mehmood on 23 December 2013 and by Mr Ali on 28 August 2014. In a decision given on 15 April 2014 (see [2014] EWHC 1608 (Admin)), Steven Kovats QC sitting as a Deputy Judge of the High Court refused Mr Mehmood’s renewed application for permission to apply for judicial review. In a decision given on 27 November 2014 (see [2014] EWHC 3967 (Admin)), Helen Mountfield QC, also sitting as a Deputy Judge of the High Court, dismissed the Mr Ali’s application for judicial review, permission for which had been granted by Lang J on 15 September 2014. On 10 July 2014 Briggs LJ gave Mr Mehmood permission to appeal. On 3 February 2015 I gave Mr Ali permission to appeal.

Two principal questions fall for decision in these appeals. The first is whether a person whose leave to be in the United Kingdom has been invalidated by the Secretary of State who has also made a decision to remove that person at a time when an application by that person for a variation of his leave is pending has a right to an “in-country appeal”, that is has a right to have his appeal heard while he is in the United Kingdom, or whether he has only an “out-of-country” appeal. The resolution of that question primarily involves considering the interaction of section 3C of the 1971 Act, section 10 of the 1999 Act, and sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). I shall refer to it as “the section 10 question”. The Deputy Judges held that the appellants did not have an in-country appeal.

The second question before the court concerns the circumstances in which, notwithstanding a statutory right to an “out-of-country” appeal to the Immigration and Asylum Chamber of the First-tier Tribunal, it is appropriate for the matter to be dealt with in judicial review proceedings, whether in the Administrative Court or in the Immigration and Asylum Chamber of the Upper Tribunal. I shall refer to this as “the adequate alternative remedy question”. The Deputy Judges held that the circumstances of these appellants were not sufficiently “exceptional” or “special” to make it appropriate to use judicial review to challenge decisions which could be challenged by an out-of-country appeal.

In the case of Mr Ali there is another question, which was referred to at the hearing as “the sequencing question”. Does the sequence of the notices of the decision invalidating his leave and the decision refusing his application for a variation of his leave means that his right is to an “in-country appeal” whatever the answer to the first question? Is the relevant date the date on the decision letter when it was assumed it was made, or is it the date on which notice in writing of the decision was given to Mr Ali? Ms Mountfield held that what was relevant was the latter date and that Mr Ali was not assisted by the “sequencing” submissions made on his behalf.

At the beginning of the hearing, Mr Malik, on behalf of Mr Mehmood, abandoned a challenge to the certification by the Secretary of State of a human rights claim Mr Mehmood made after the removal decisions. He was right to do so. Mr Malik also accepted, on behalf of both appellants, that, if they succeeded on the questions that fall for decision, their cases would have to be remitted for a decision on the merits, so we were not concerned with those. In the case of success on the section 10 question, the remission would be to the tribunal, which would hear in-country appeals by them. In the case of the “adequate alternative remedy” question, the remission would be to the Administrative Court.

Notwithstanding this, as will be seen, in relation to the “the adequate alternative remedy question” Mr Malik submitted that, in Mr Ali’s case, one of the “exceptional” or “special” circumstances justifying the exercise of the judicial review jurisdiction was that the Secretary of State’s decisions to refuse the application for a variation of his leave and to remove him were made without “worthwhile evidence” and without giving him prior notice and an opportunity to make representations, questions that go to the merits of his case.

In sections III and IV of this judgment I summarise the material statutory provisions and the factual background. In section V, I analyse the decisions of the Deputy Judges, the submissions and give my reasons for concluding that the appeals should be dismissed. I have so concluded essentially for the reasons given by Ms Mountfield in her judgment in Ali’s case. Mr Kovats’ decision in Mehmood’s case, a renewed application for permission to apply for judicial review, is understandably and commendably brief. Save in one respect with which I deal at [48] below when considering “the sequencing question”, it is to the same effect as hers.

These appeals are not governed by the significant amendments to the legislation governing the immigration appeal system made by the Immigration Act 2014, including the replacement of “in-country” appeals by administrative review, with effect from October 2014 for new Tier 4 applications, and from 6 April 2015 for other categories of applicant. They are governed by the legislation in force prior to those amendments taking effect.

I start with the 1971 Act. The first material provision is section 3. Section 3(1) provides that a person who is not a British citizen shall not enter the United Kingdom “unless given leave to do so … [and] may be given leave to enter … or … leave to remain … either for a limited or for an indefinite period”. By section 3(1)(c), if leave is given for a limited period, it may be given subject to the conditions set out in the sub-section, including one “restricting his employment”. By section 3(3)(a), “a person’s leave … may be varied … by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions” attached to it.

The key provision of the 1971 Act for the purpose of these appeals is section 3C. The heading to it states: “Continuation of Leave Pending Variation Decision”. The section, when read with section 4 of the 1971 Act (see [14] below), empowers the Secretary of State to vary the leave of those with limited leave to enter or remain who apply for variation of the leave before their leave expires. It provides that in such a case the leave “is extended by virtue of” the section during the period pending a decision on the application, in which an “in-country” appeal could be brought, the withdrawal of the application, or where the applicant leaves the United Kingdom: see section 3C(2) and (3). Section 3C(4) prohibits a person from making an application for variation of his leave while that leave is extended “by virtue of” section 3C(2). It thus prohibits a further application to vary after section 3C has started to operate.

Section 4(1) of the 1971 Act provides:

“The power under this Act … to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.”

I turn to the 1999 Act. The material parts of section 10 provide:

“(1)

A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if–

(a)

having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

(b)

he uses deception in seeking (whether successfully or not) leave to remain;

…

(2)

Directions may not be given under subsection (1)(a) if the person concerned has made an application for leave to remain in accordance with Regulations made under section 9.

…

(8)

When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him.”

In many cases, including the cases before us, notice of the individual’s liability to removal and of the decision to remove him or her (in forms IS151A and IS151A Part 2) are served simultaneously.

The material parts of sections 82 and 92 of the 2002 Act provide:

“82 Right of appeal: general

(1)

Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2)

In this Part “immigration decision” means—

…

(d)

refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

…

(g)

a decision that a person is to be removed from the United Kingdom by way of directions under http://www.legislation.gov.uk/ukpga/2002/41/section/82 - commentary-c1925056 section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),

…

(4)

The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.

92 Appeal from within United Kingdom

(1)A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2)

This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).

…”

It is clear from these provisions that, whereas the right under section 82(2)(d) is to an in-country appeal, that under section 82(2)(g) is to an out-of-country appeal.

Having set out or summarised the material statutory provisions, I am able to restate the first question before us in language which links it more precisely to the statutory language. In a nutshell, the section 10 question is whether, when a “removal” decision is made pursuant to section 10 of the 1999 Act, section 10(8) invalidates leave which has been automatically extended pursuant to section 3C of the 1971 Act.

Mr Malik, on behalf of the appellants, submitted that it does not because section 10(8) only applies to leave “previously given to” the person in question, and where there is an application for further leave pending, the leave of the applicant is not “given to” him or her by the Secretary of State but is a statutory extension of leave which arises automatically as a result of section 3C of the 1971 Act. He maintained that the leave “previously given by” the Secretary of State had expired on, respectively, 19 November and 30 December 2013, and the leave the appellants enjoyed until the removal decisions was a different kind of leave “given” by section 3C and not by the Secretary of State.

Ms Giovannetti QC, on behalf of the Secretary of State, submitted that, both as a straightforward question of statutory interpretation and in the light of the authorities, section 10(8) of the 1999 Act means that the “removal” decisions made under section 10 invalidate any existing leave to remain in the United Kingdom, including leave extended by virtue of section 3C of the 1971 Act.

On 24 April 2012, the licence for the college at which Mr Mehmood was enrolled was revoked and, as a result of this, on 12 June 2012 his leave was curtailed to expire on 11 August 2012. He had, the day before the curtailment of his leave, applied for further leave to remain as a student, and was granted such leave until 19 November 2013. On 31 October 2013, before that leave expired, he applied for a variation of his leave to enable him to remain as a student for a further period.

The “removal” decision in Mr Mehmood’s case was made on 4 December 2013 when he was encountered at a dry cleaners shop owned by his uncle, Zahid Aslam. The Secretary of State claims Mr Mehmood was working there in breach of the conditions of his leave. The Secretary of State relied on contemporary notes by the immigration officer of his interviews with Mr Mehmood and his uncle, signed by them, in which both informed the officer that Mr Mehmood had been “helping” his uncle. Mr Mehmood stated he had done so for two months after he had finished college. His uncle stated it was for four or five months and described it as “working/helping out” and “casual work” for four or five hours a day, but that Mr Mehmood was not paid. Mr Mehmood was arrested and served with notices of his liability to removal and a notice of removal decision. The notices explained that he was entitled to appeal against the latter decision after he had left the United Kingdom.

In statements dated 13 and 20 December 2013, Mr Mehmood stated that he had not been working but helping his uncle by delivering food cooked at home by his aunt to his uncle. He also stated that he had invested money and time in his education in this country, had a private life established here and strong social and family ties as he had a lot of family in the United Kingdom. He asked to be allowed to continue his education and not to ruin his career. There was a statement to the same effect dated 9 December 2013 by Mr Aslam. In a letter dated 17 December 2013, his solicitors asked that he be accorded an in-country appeal, relying on Article 8 of the European Convention on Human Rights. The Secretary of State responded to the solicitors in a letter dated 19 December 2013. This stated that Mr Mehmood had breached the conditions of his leave by working, stated erroneously that for this reason his application for his leave to be varied was invalid, and certified his human rights claim as “clearly unfounded” under section 94(2) of the 2002 Act. In a letter dated 10 January 2014, the Secretary of State refused Mr Mehmood’s 31 October 2013 application to vary his leave. The letter stated that he failed to meet the requirements of paragraph 245ZX(a) of the Immigration Rules because he had breached the conditions of his leave by working.

Mr Ali’s application for a variation of his leave was made on 29 December 2013. The “removal” decision resulted from what the Secretary of State regarded as deception by him in his application for a variation of his leave. In order for Mr Ali to be credited with the necessary points under the Immigration Rules, he had to demonstrate the required level of proficiency in speaking and writing in the English language. His application was accompanied by a Test of English for International Communication (hereafter “TOIEC”) certificate issued by Educational Testing Services (hereafter “ETS”). The document furnished by Mr Ali stated that he had passed a test conducted by ETS, and had achieved the maximum score on the speaking part of the test.

In February 2014 the television programme “Panorama” revealed, using covert recording, that there was widespread fraud in the taking of language tests, in particular by the use of “proxy” test takers. As a result of this, ETS reviewed all its tests. It did so using computerised voice recognition software and two reviews by anti-fraud staff trained in voice recognition. The process is described in the decision below: [2014] EWHC 3967 (Admin) at [4]. ETS concluded that thousands of tests, including Mr Ali’s, had not been taken by the person who was named on the certificate but by another person. ETS provided the results of its review to the Secretary of State, and the Secretary of State subsequently served Mr Ali with a “removal” notice and a letter refusing his 29 December 2013 application to vary his leave.

In her Acknowledgment of Service and Summary Grounds, the Secretary of State relied on witness statements, both dated 23 June 2014, of Rebecca Collings and Peter Millington, filed in proceedings brought by Zaheer Hussain Mohammed and relied on in all cases in defence of challenges to “removal” decisions on the ground of deception in language testing and TOEIC certificates issued by ETS. Ms Collings is a Grade 6 civil servant with responsibility for overseeing delivery of secure English language testing since 2013. Mr Millington is an Assistant Director responsible for co-ordinating compliance visits to educational sponsors. Prior to that, he was responsible for the unit that processed in-country Tier 4 student applications.

These statements describe the way anti-fraud measures (particularly online verification systems) were introduced, and the steps taken following the “Panorama” programme and the Home Office’s contact with ETS, and why the Home Office accepted that, where ETS had cancelled a test score because of impersonation and proxy test-taking, that test score had been obtained by deception. Mr Millington stated that ETS’s statistics bore out the underlying reliability of the voice biometrics technology, and the reason the Home Office considered that, where ETS identifies positive voice matches for two candidates with different names, it is because one person has sat the speaking and writing exam for both candidates. That, he stated, is clear evidence that both candidates have fraudulently obtained their TOEIC certificate and employed deception in their application for leave to remain. In R (Gazi) v Secretary of State for the Home Department (ETS – judicial review) [2015] UKUT 00327 (IAC) at [6] and [9], the President of the Immigration and Asylum Chamber of the Upper Tribunal (“UTIAC”) described these as “generic” witness statements, because they did not show the exact reason why ETS invalidated the certificate of a particular person or provide evidence relating to the personal circumstances of an individual.

Mr Ali, in a witness statement dated 19 August 2014, denies having cheated in his ETS test or having used a proxy tester. In an application dated 26 June 2015, shortly before the hearing, his representatives sought permission to rely on a report by the National Union of Students on Tier 4 Sponsorship revocations since 24 June 2014, covering developments in the period until 27 November 2014, and the report of Dr Philip Harrison, a forensic consultant specialising in the analysis of speech, audio and recordings dated 5 February 2015, which criticised the evidence of Rebecca Collings and Peter Millington. This report, produced seven months after the decisions in Mr Ali’s case, is also “generic”. It has been relied on in other proceedings, in particular in Gazi’s case, in which the Upper Tribunal summarised Dr Harrison’s criticisms at [17] – [20] of its decision.

The notices that Mr Ali was liable to be removed and the immigration decision to remove him, and a letter dated 7 July 2014 referring to “the earlier section 10 removal decision” refusing the 29 December 2013 application for a variation of his leave were served on Mr Ali on 11 August 2014. There is an issue as to whether or not, and if so when, the refusal of the 29 December 2013 application became legally effective. The removal decision which had the effect of invalidating his leave was served on him at 6:19am, two minutes before the letter refusing his application for further leave to remain: see [2014] EWHC 3967 (Admin) at [8]. It was submitted on his behalf by Mr Malik that because the date on the letter refusing his application was 7 July 2014, that decision was in fact made before the decision curtailing his leave so that he was entitled to an in-country right of appeal as a result of sections 82(2)(d) and 92(2) of the 2002 Act. See further [38] and [41] below.

Analysis

The issue is whether “any leave to enter or remain …” in section 10(8) of the 1999 Act includes leave to remain which is extended by section 3C of the 1971 Act.

I have referred to the understandable and commendable brevity of the judgment in Mr Mehmood’s case. On the section 10 question, Mr Kovats pithily stated (at [8]) that “it is clear beyond argument that any leave given means any leave given”, and whether the leave was “granted … by section 3C or by the Secretary of State” was, for this purpose, “clearly irrelevant” so that “the clear effect of section 10(8) is [that it] invalidated any leave, including any section 3C leave”.

In Mr Ali’s case, Ms Mountfield, after much fuller argument at a substantive hearing, stated (at [30] – [31]) that she did not consider that regarding a statutory extension of leave under section 3C of the 1971 Act as not leave “previously given by” the Secretary of State to be a tenable reading of the 1971 Act. The language of the section did not give a fresh period of deemed leave, but envisaged that something pre-existing was extended by virtue of an undetermined application for variation of an existing period of leave, and this was supported by the use of the phrase “continuation of leave pending variation decision” in the title to the section. The only rational answer to the question “continuation of what?” is “continuation of that which previously existed” – i.e. the period of limited leave previously given by the Secretary of State. She stated (at [34]) that an in-country right of appeal against the variation decision did not continue after the removal decision was made but was “extinguished by operation of section 10(8) of the 1999 Act”, and thereafter “the only right of appeal was the out-of-country right of appeal against the section 10(1) decision under section 82(2)(g) of the 2002 Act, and not the in-country right of appeal under section 82(2)(d)”. The Deputy Judge considered that this construction was supported by a number of matters to which I refer below and with which I substantially agree.

Mr Malik’s submissions before this court were essentially the same as those he had advanced below. He emphasised the use of the phrase “given leave” in section 3 of the 1971 Act. He argued that the statutory structure showed a distinction between leave given by the Secretary of State by section 3 pursuant to section 4 and leave which is automatically given by section 3C of the 1971 Act. The former (see section 3(3) of the 1971 Act summarised at [12] above) leaves the Secretary of State free to extend or curtail the leave previously given but in the case of the latter there is no possibility of this. The automatic extension is of exactly what had previously been given by the Secretary of State. Mr Malik submitted that, given this difference, Parliament would not have intended the Secretary of State to have the power to invalidate the automatic section 3C extension by a decision pursuant to section 10 of the 1999 Act.

Mr Malik also relied on section 47 of the Immigration and Nationality Act 2006 (“the 2006 Act”) which makes provision for the removal of persons with statutorily extended leave pursuant to section 3C of the 1971 Act and does not provide that a removal direction under it invalidates a person’s leave. This provision, he argued, showed that where Parliament wishes to deal with statutorily extended leave it does so, and that this shows it is inconceivable that Parliament intended to empower the Secretary of State to invalidate such leave by making a decision under section 10 of the 1999 Act.

The structure of section 3C, and the clear wording of section 3C(2) which provides that “ the leave is extended by virtue of this section …” (emphasis added) are inconsistent with Mr Malik’s submissions. In my judgment, section 3C(4), one of the matters Ms Mountfield considered supported her conclusion (see [31]), is simply a reflection of the broader point about the section. Section 3C(4), precludes an application for variation of leave “while that leave is extended by virtue of this section” and, like section 3C(2), is consistent only with a continuation of the leave that existed before the application. In the Deputy Judge’s words, it is “a statutory extension of the same leave which existed before it was made”. The fact that the Secretary of State has power when varying leave under section 3(3) to extend or restrict it but the statutory extension under section 3C is automatic does not affect the nature of what is extended.

The provision in section 10(8) of the 1999 Act that the notification “invalidates any leave … previously given to him” is to make it clear that its effect is that, from the date of the notification, that which had previously been done is undone. It is not implicitly drawing a distinction between leave pursuant to section 3 and leave pursuant to section 3C. Such a distinction would, as the Secretary of State submitted below and as the Deputy Judge accepted (see [33]) produce arbitrary results. On the interpretation for which Mr Malik contended, the Secretary of State’s power to remove pursuant to section 10(1) on the basis of deceit would depend upon whether the alleged deceit was uncovered during the primary period of leave or after a decision to extend a person’s leave, or during the statutory extension of the primary period of leave pending any decision on the person’s application to vary the leave.

I do not consider Mr Malik gets any assistance from section 47 of 2006 Act. It is dealing with an entirely different situation. That is the removal of people who have complied with the terms of their leave but whose application for a variation of their existing leave has been or will be refused before the expiry of that leave, for example, because they no longer fit the criteria for leave. It is not dealing with people who have broken the conditions of their existing leave or used deception, whose existing leave Lord Hughes in R (George) v Secretary of State for the Home Department [2014] UKSC 28, reported at [2014] 1 WLR 1831 described as “seriously flawed”. Their position is very different. It does not follow from the failure to make provision invalidating the existing leave of a person who has complied with all requirements that Parliament would not empower the Secretary of State to made a section 10 decision invalidating the remainder of the existing leave of those who are in breach and giving them only an out-of-country appeal: see my reference at [47] below to the statement of Stanley Burnton LJ in the Court of Appeal in George’s case that Parliament would not have provided for retrospective effect “at least in a case where the leave was not obtained fraudulently or by misrepresentation” (emphasis added).

I also consider that Mr Malik’s criticism of the Deputy Judge’s reliance (at [32] of her judgment) on the statement of Pill LJ in QI (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 614 at [14] that leave varied under section 3C is “a statutory extension of the original leave”, not “a new or different species of leave” is misplaced. He submitted that what he described as her “analogy” was “implausible” because (a) QI (Pakistan)’s case was primarily concerned with the construction of Paragraph 245ZX(l) of the Immigration Rules and not of section 10(8) of the 1999 Act, (b) there was common ground and therefore no argument as to the construction of Paragraph 245ZX(l), and (c) there was no no analysis of what are described as “the contrasting” words used in section 3 and 3C of the 1971 Act and section 10(8) of the 1999 Act. He argued that Pill LJ’s statement that the leave extended is not “a new or different species of leave” is not inconsistent with the construction for which he contended. I consider that, notwithstanding the different context, his statement is not consistent with Mr Malik’s submissions in these appeals. Pill LJ’s statement simply reflects what is, for the reasons I have given, the clear meaning of section 3C.

This question only arose in Mr Ali’s case. The Deputy Judge rejected the submission that the decision refusing to vary Mr Ali’s leave was taken before the section 10 removal decision and that the later making of the removal decision was an abusive attempt to remove the in-country right of appeal which would otherwise have arisen under section 82(2)(d) of the 2002 Act. She recognised (at [24]) that the date on the refusal letter could give the impression that it was the first decision in time but it was always intended that the removal decision in a pro forma document be served first and immediately before the refusal decision which had to be individually drafted and was drafted on 7 July 2014, in order to terminate the pre-existing leave by virtue of section 10(8) of the 1999 Act, and notice of the removal decision was (see [28] above) in fact served first.

In support of her conclusion, the Deputy Judge relied on two matters. The first were the statements in the text of the refusal letter that there was no right of appeal “in view of the earlier section 10 removal decision”. The second (see [25]) was that the decision of this court in Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512, reported at [2014] 1 WLR 401 per Sullivan LJ at [20] – [25] showed that, as a matter of law, “the removal decision preceded the refusal decision. It is clear from the case law that a decision takes effect at the moment when it is given, not the moment when it is drafted”.

The Deputy Judge also rejected Mr Malik’s alternative submission that, if the refusal of Mr Ali’s application to vary his leave was not an immigration decision attracting a right of appeal to the tribunal, it was a public law decision in respect of which judicial review was available because there was no alternative remedy. She accepted (at [37]) that there is no alternative remedy to judicial review in respect of the refusal decision, but rejected the submission that judicial review lay. She did so after hearing submissions and considering the reasons given by Lewis J for refusing permission to apply for judicial review in R (Shah) v Secretary of State for the Home Department [2014] EWHC 3301 (Admin). She stated that, once the Secretary of State had “extinguished [Mr Ali’s leave] by making a section 10 decision, [she] erred in purporting to make a second decision to refuse to vary that leave, because no such leave existed to vary”, and “[i]n other words, since the underlying leave to remain had already been extinguished by the time the purported refusal to vary it was served, the refusal to vary was itself a nullity”.

In support of the appeal on this ground, Mr Malik’s two principal submissions reflected those made below. The first was that the refusal to vary leave and the removal decisions were distinct and that the former decision, made on 7 July, which as a matter of law gave rise to an in-country right of appeal, could not be invalidated by the subsequent removal decision. The fact that Mr Ali could not have challenged the variation decision before it was served on 11 August was, he submitted, immaterial. His second submission was that the Deputy Judge erred in relying on the decision in Ahmadi’s case because (skeleton argument §24) it “is not an authority for the proposition that if the Secretary of State makes a variation decision first and then makes a removal decision a few weeks later, and serves the two decisions together, it should be artificially assumed that the variation decision was not made earlier”.

The short answer to these submissions is that section 4 of the 1971 Act explicitly provides that the power to give leave to remain or to vary any leave “shall be exercised by notice in writing given to the person affected”. Accordingly, the fact that internally the Secretary of State may have decided to refuse Mr Ali’s application to vary his leave on 7 July is legally irrelevant. What is legally relevant is the date and time of the service of notice in writing to the person affected. Until then there is legally no decision.

In this respect the 1971 Act reflects the important statement of principle in R v Secretary of State for the Home Department, ex p. Anufrijeva [2003] UKHL 36, reported at [2004] 1 AC 604, at [26]. Lord Steyn stated that the requirement of notice of a decision before it can have legal effect “is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system ….” The logical consequence of Mr Malik’s argument is, as Ms Giovannetti submitted, that a decision on a person’s legal status has legal effect prior to its notification to the person concerned. Mr Malik’s suggestion that such a decision has no effect for the purposes of time running for an appeal but otherwise does is, in my judgment, artificial and untenable.

I also reject Mr Malik’s submission that the Deputy Judge erred in relation to Ahmadi’s case. While Sullivan LJ did accept in that case ([2013] EWCA Civ 512 at [22]) that the language of the 2002 Act distinguishes the “making” or “taking” of an immigration decision and giving written notice of that decision to the person concerned, he went on to say:

“[22] … The notice in writing is not a subsequent step following the exercise of the power [to give and to vary leave to remain under sections 3 and 4 of the 1971 Act], it is the way in which the power is to be exercised. …"

[25] In my judgment … there is no decision against which an appeal can be brought under section 82(1) [of the 2002 Act] until notice of the decision has been given. … the power to vary leave under section 3(3)(a) is exercised by notice in writing given to the person affected. Giving the notice does not follow the exercise of the power, it is the manner in which the power is exercised….”

I do not consider the Mr Malik is assisted by the decisions of the Supreme Court in Patel v Secretary of State for the Home Department [2013] UKSC 72, reported at [2014] 1 AC 651 and R (George) v Secretary of State for the Home Department [2014] UKSC 28, reported at [2014] 1 WLR 1831.

Patel’s case decided that the Secretary of State is not obliged to issue a removal decision when refusing an over-stayer’s application for leave to remain. The recognition of the fact that the variation decision is not invalidated by the failure to make a removal decision is not relevant in the context of Mr Ali’s appeal. In any event, the effect of section 4(1) of the 1971 Act is that there was no legally effective decision refusing Mr Ali’s application to vary his leave.

George’s case concerned a different question to the question on the sequencing aspect of Mr Ali’s appeal. It concerned whether the revocation or withdrawal of a deportation order made under section 5 of the 1971 Act revived a person’s previous leave to remain. It was in that context that the effect of the withdrawal of a section 10 notice was canvassed, but the Supreme Court did not attempt to reach a decision on that or the effect of section 10(8) of the 1999 Act. Lord Hughes (at [26]) stated that “[m]uch might depend on the circumstances of any withdrawal” and that “it should not be assumed that the effect of the section is that withdrawal of the removal directions would reinstate the leave to remain”. In the Court of Appeal in that case, Stanley Burnton LJ had referred ([2012] EWCA Civ 1362 at [21]) to the fact that it was common ground that “invalidate” in section 5 of the 1971 does not have a retrospective effect. But he also stated that Parliament would not have provided for retrospective effect “at least in a case where the leave was not obtained fraudulently or by misrepresentation”.

Mr Malik’s alternative submission was that, if the refusal of Mr Ali’s application to vary his leave was not an immigration decision attracting a right of appeal to the tribunal, it was a public law decision in respect of which judicial review was available because there was no alternative remedy. On this Ms Mountfield, in Mr Ali’s case, differed from the import of what Mr Kovats, in Mr Mehmood’s case, stated in the light of the position taken by the Secretary of State in that case. In Mr Mehmood’s case, the Secretary of State had accepted that she had erred in stating in a response to Mr Mehmood’s letter before claim that, by reason of the section 10 decision, his outstanding application was “no longer a valid application”. Before us, Ms Giovannetti stated that the Secretary of State’s previous position, taken out of an abundance of caution, was that in these circumstances the application to vary the leave should be refused, but her position now was that Ms Mountfield’s approach was correct. It is that, after the section 10 decision, the effect of section 10(8) meant that there was nothing to vary. I can understand why the Secretary of State’s advisers had previously taken what Ms Mountfield described as “a sensible ‘belt and braces’ [approach] to close off any potential judicial review of the failure to determine the variation application”. But, like her and Lewis J, I consider it legally unnecessary and, as the submissions in this case show, confusing and apt to mislead.

It was common ground that it is only where there are “special or exceptional factors” that the court will permit a substantive challenge to a removal decision by the Secretary of State pursuant to section 10 of the 1999 Act to proceed by judicial review rather than by the appeal channel provided by Parliament, here an out-of-country appeal: see R (Lim) v Secretary of State for the Home Department [2007] EWCA Civ 733, R (RK (Nepal)) v Secretary of State for the Home Department [2009] EWCA Civ 359; and R (Anwar and Adjo) v Secretary of State for the Home Department [2010] EWCA Civ 1279, reported at [2011] 1 WLR 2552. Mr Malik submitted that there are such factors in the case of both appellants, although there are more in Mr Ali’s case.

Before considering the factors relied on by Mr Malik, I note that in Mr Ali’s case the Deputy Judge examined what she described as “a recent flurry of contradictory first instance decisions”, which all seek to apply the Court of Appeal authorities. I am going to stand back from those authorities. I do not consider that, on the facts of the cases of the two appellants before us, it is necessary to analyse them closely. Moreover, the application of the principle that, where there is an alternative statutory appeal, it is only when there are “special or exceptional factors” that the judicial review jurisdiction should be exercised is a fact-sensitive question. Over-analysis may, as the differences between the first instance cases possibly show, not be illuminating.

It suffices for the purpose of these appeals to extract the following propositions from the decisions. First, except where there are “special or exceptional factors”, “the court must accept that an out of country appeal is regarded by Parliament as an adequate safeguard for those who are removed under section 10 of the 1999 Act”: RK (Nepal) at [33] per Aikens LJ.

Secondly, the existence of disputes of fact are rarely likely to constitute “special or exceptional factors”. This is because, as Sedley LJ stated in Lim’s case (at [25]), “were it otherwise, the courts would be emptying Parliament’s prescribed procedure of content”, and also because judicial review proceedings are not best suited to resolve such issues, even if they sometimes have to be used for them, for example in “jurisdictional fact” cases where the court has to determine the merits and not just exercise a traditional public law reviewing function: see Khawaja v Secretary of State for the Home Department [1984] AC 74 and R (A) v Croydon LBC [2009] UKSC 8 reported at [2009] 1 WLR 2557 at [33]. Accordingly, the default position for disputes as to whether there has been a breach of the conditions of leave or deception has been used in connection with an application for leave will, absent such special or exceptional factors, be an out-of-country appeal. For the reasons given at [69] – [70] below and by the President of UTIAC in R (Gazi) v Secretary of State for the Home Department (ETS – judicial review) [2015] UKUT 00327 (IAC) the default position in the case of disputes of opinion between experts, or between a witness of fact and an expert will also normally be an appeal.

Thirdly, matters of procedural fairness arise in many cases, can be considered in the appellate process, and are rarely likely to constitute “special or exceptional factors”: see Coulson J in R (Ali Zahid) v Secretary of State for the Home Department [2013] EWHC 4290 (Admin) at [16] ff.

In Mr Ali’s case, on the basis of Mr Ali’s witness statement dated 19 August 2014, Mr Malik relied on three factors about the section 10 removal decision, one factor about the refusal of his application to vary Mr Ali’s leave, and one factor about Mr Ali’s particular circumstances.

The first factor (see witness statement, §4) is that the removal decision was taken without prior notice, and Mr Ali had no opportunity to make representations.

The second factor was that the decision was taken without “worthwhile evidence” that Mr Ali had cheated in the language test because the Secretary of State relied only on the “generic evidence” to which I have referred at [25] – [26] above and not on evidence about Mr Ali as an individual. Mr Ali’s evidence (see witness statement, §§6-7) was that he had sat the test himself on 15 January 2014.

The third factor was Mr Malik’s submission that the removal decision was taken “in order to stifle the in-country appeal that Mr Ali would have otherwise had” against the refusal of his application to vary his leave.

The fourth factor was that, if he was wrong on the section 10 point, Mr Ali had no appeal against the refusal of the application for a variation, and, absent judicial review, no means of challenging that.

The fifth factor (see witness statement, §15) was that Mr Ali was in the middle of his course which he wanted to finish, would be humiliated if removed from the United Kingdom, and had offered to take another test. In §17 he stated that he would not be able to defend himself effectively if he had to do so from another country.

The use of the term “worthwhile evidence” and the word “stifle” in the second and third factors reflects the language used by Sedley LJ in R (Anwar and Adjo) v Secretary of State for the Home Department [2010] EWCA Civ 1279 at [24] about the case of a Ms Pengeyo which had settled before the case got to the Court of Appeal and was thus not before the court. I consider that case at [64] – [65] below.

Mr Malik recognised that Mr Mehmood’s case was weaker than Mr Ali’s because he had been given notice of the Secretary of State’s intention and an opportunity to make representations when he was interviewed after the encounter in the dry cleaners and before the section 10 notice was served. Further submissions by him were considered after the section 10 notice was served. Mr Malik accepted that, in view of the contemporary notes made by the immigration officers of what Mr Mehmood and his uncle said in interview (see [21] above) there was some evidence although it was contested. He did not criticise the Deputy Judge’s statement (at [9]) that, as it was not disputed that Mr Mehmood was in the dry cleaners, and the only issue disputed was whether he was working there, the case involved a pure dispute of fact, which it was accepted could be determined by the First-tier Tribunal in an out-of-country appeal.

What Mr Malik primarily relied on was his submission that the removal decision was taken in order to stifle the in-country appeal that Mr Mehmood would have otherwise had against the refusal of his application to vary his leave. He also relied on the fact that, if he was wrong on the section 10 point, there was no appeal against the refusal of the application for a variation, and, absent judicial review, no means of challenging it. As to Mr Mehmood’s personal circumstances, Mr Malik relied on his evidence: see his statements dated 13 and 20 December 2013 summarised at [22] above.

I first address the “decision was taken in order to stifle the in-country appeal” point which is relied on in respect of both appellants. Mr Malik’s submission is in reality that, in circumstances where there is an outstanding application to vary leave, making a removal decision pursuant to section 10 is an abuse of process because it removes the right to an in-country appeal that would exist on the refusal of the application to vary, and that is a “special or exceptional factor”, which means that judicial review lies. It is submitted that the Secretary of State’s decision was made in order to stifle an in-country appeal; that is, its purpose was to do this. This submission is not based on evidence but infers the purpose of the decision to exercise the section 10 power solely from its effect in what, in my view, is an impermissible way. To do this would be, adapting Sedley LJ’s words in Lim’s case, to empty Parliament’s prescribed procedure of content where there has been an application to vary leave at the time the section 10 decision is taken, because the operation of section 10(8) would always mean this was the effect.

In R (Anwar and Adjo) v Secretary of State for the Home Department [2010] EWCA Civ 1279 at [24], in language used in Mr Malik’s submissions in these appeals, Sedley LJ made observations about the case of a Ms Pengeyo. She had challenged a section 10(1)(b) removal decision in which her right was to an-out-of-country appeal in judicial review proceedings. The judicial review was stayed pending the appeal, which the tribunal erroneously heard on an in-country basis. Before the tribunal, the Secretary of State had submitted that the appeal should not be heard on that basis, but this submission was rejected: see [2010] EWCA Civ 1279 at [12] and [14]. The tribunal allowed Ms Pengeyo’s appeal, finding on the evidence that she had acted honestly throughout. The Secretary of State then successfully appealed to the Upper Tribunal on the ground that the First-tier Tribunal had no jurisdiction to proceed by an in-country appeal. Before the hearing in the Court of Appeal, the Secretary of State withdrew the section 10 notice and the judicial review proceedings were settled.

It was against that background, and, notwithstanding that Ms Pengeyo’s case was not before the court, that Sedley LJ stated:-

“the election of the Home Office, having used the deception route, to take an out-of-country point in order to stifle an appeal was a serious abuse of power” and that “once it is established that the point is only good when taken, to take it in order to prevent the exposure of a shameful decision – the effective criminalisation and enforced removal of an innocent person without either worthwhile evidence of the opportunity to answer – is without doubt justiciable by way of judicial review”.

Sedley LJ’s remarks were not part of the grounds of the decision, and his statement that “the point is only good when taken” appears inconsistent with the decision of this Court in Virk v Secretary of State for the Home Department [2013] EWCA Civ. 652 at [23]. But even if those points are put aside, I consider Mr Malik’s reliance on what Sedley LJ said to be totally misplaced in the light of the very different circumstances of the appellants in this case. In their cases, there have been no findings of fact by the tribunal, and the Secretary of State is not trying to re-litigate a matter after losing an appeal as the result of findings of fact adverse to her case.

I next address the submission Mr Malik made that, if his primary submission that the effect of a section 10 removal decision did not invalidate leave which has been automatically extended pursuant to section 3C of the 1971 Act was wrong, absent judicial review the appellants had no means of challenging that. This was because, if the removal decision invalidated that leave, the appellants had no appeal whatsoever against the refusal to vary their leave. He submitted that, even if the appellants succeeded in their out-of-country appeals against the section 10 notices, the refusals of the applications to vary would stand unless set aside in judicial review proceedings. He also argued that authority suggests that there is no difference between an application for a variation of leave and an application for further leave.

I reject these submissions. Taking the last one first, although the effect of the grant of further leave and the variation of existing limited leave may be the same, it is clear that both appellants had applied for variations of their existing leave and not made free-standing applications for leave. This is seen from their reliance on the statutory extension of leave which arises automatically as a result of section 3C, because the statutory extension is only made where there has been an application for a variation of an existing leave.

As to the submission that, absent judicial review, the appellants would be left without a means of challenging the refusals of the applications to vary, it may well be true that, pending the outcome of their appeals, the refusals to vary their leave would not be set aside. But I do not consider that reflects the ultimate position after the appeals have been determined. The issues relied on by Mr Malik in relation to the application to vary are closely linked to the issues that will arise before the tribunal when considering the legality and merits of the section 10 notices. In Mr Mehmood’s case the disputed factual question is whether he was working for his uncle in breach of the conditions of his leave. In the case of Mr Ali, the dispute is whether he cheated in the English language test. If they succeed in their out-of-country appeals, as Miss Giovannetti accepted, the Secretary of State will be obliged to give proper effect to the findings of the tribunals on the issue underlying the decision to make the section 10 removal decisions. If, like Ms Pengeyo in Anwar and Adjo’s case they are totally vindicated, but the refusals to vary are not revisited, on the material before this court they would appear to have a strong case for a challenge by judicial review on the ground that the refusal to vary their leave was made on the basis of an erroneous or unlawful section 10 decision which has been reversed on appeal.

I turn to Mr Malik’s “without worthwhile evidence” point about Mr Ali’s case. He accepted (see [8] above) that we were not concerned with the merits of the decision to make the section 10 removal decisions, and the assessment of evidence is a matter for the tribunal. This is not a case where there is no evidence whatsoever in support of the Secretary of State’s decision. There is evidence in the form of the statements of Ms Collings and Mr Millington. The question of its adequacy was not considered by the Deputy Judge and is not properly before the court in these proceedings. It is noteworthy that in Gazi’s case, where the evidence about the tests was largely the same as that in this case, with Ms Collings and Mr Millington’s statements criticised by Dr Harrison, it was decided (see [2015] UKUT 00327 (IAC) at [6] and [36] – [37]) that it would be difficult to resolve the differences between them in judicial review proceedings which are not designed for live evidence and cross-examination. The fact that Mr Malik invited the court to consider the criticisms of Ms Collings and Mr Millington’s statements by Dr Harrison, and the summary of those criticisms by the President of UTIAC in Gazi’s case (referred to at [26] –[27] above) shows how close he was coming to inviting this court to assess the evidence in an appeal.

I do not consider that it can be said that in Mr Ali’s case the Secretary of State had “no worthwhile evidence” to satisfy herself that this was an appropriate case to make a removal direction and that this is a “special” or “exceptional” factor justifying by-passing the statutory appeal mechanism laid down by Parliament. The appeal structure specifically envisaged that challenges to the factual accuracy of evidence take place through an out-of-country appeal and the information which informed the Secretary of State’s decision as to the deception was put before Mr Ali, albeit in the text of the refusal decision rather than the removal decision. When considering whether an interview would have made any difference and concluding that it would not have, the Deputy Judge stated (at [94] – [95]) that the ETS assessment was based on three separate appraisals of the voice of the proxy tester and Mr Ali’s statement contains only a bare denial of the allegation. I add that Dr Harrison’s report was not available at the time the section 10 decision was made.

The fact that the section 10 notices were served on Mr Ali when he was only about half way through his course will undoubtedly lead to great inconvenience and expense. Assuming that he is bona fide pursuing his course, it will also disrupt his educational aspirations. The evidence of personal factors in Mr Mehmood’s case is similar. But, although being required to leave the jurisdiction is a real detriment, notwithstanding the continuing availability of a right of appeal, as the Deputy Judge stated (at [65]), the mere fact that some inconvenience will result from being required to leave the jurisdiction is not itself ‘special’ or ‘exceptional’: it is inherent in the scheme of the statute enacted by Parliament. I can conceive of cases in which serious ill-health of the person affected or some other exigency might qualify as an “exceptional” factor, although I consider that the threshold would be high.

Finally, I turn to the fact that Mr Ali did not receive prior notice of the removal notice. This did not preclude him responding to the notice in the way Mr Mehmood did, by making representations, or by providing further evidence to the Secretary of State. Although other parts of the judgment of the Deputy Judge in R (Thapa) v Secretary of State for the Home Department [2014] EWHC 659 (Admin) have been disapproved, I respectfully agree with her statement at [70] that “at least the gist of the evidence upon which a removal decision under section 10 IAA 1999 is taken must be communicated to the subject of that decision at the time the decision itself is communicated”. That reflects the classic statement of Lord Mustill in R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531, at 560. But that question and other matters of procedural fairness can be considered in the appellate process. They are unlikely to constitute a special or exceptional factor, and do not in Mr Ali’s case.

For these reasons, I would dismiss these appeals.

I agree.

I also agree