Sood, R (On the Application Of) v Secretary of State for the Home Department

The sole issue in this appeal concerns the circumstances when, notwithstanding a person’s right to an “out-of-country” appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), it is appropriate for his case to be dealt with in judicial review proceedings.

The appellant, Amit Sood, now aged 31, is a citizen of India who entered the United Kingdom as a Tier 4 (General) Student Migrant on 18 January 2010 on a visa valid until 31 July 2012. On 27 November 2012, his leave to remain was extended until 19 January 2014.

These proceedings arise as a result of three decisions made on 29 June 2014 by the respondent to this appeal, the Secretary of State. They were: (a) to remove the appellant from the United Kingdom, pursuant to section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) (“the section 10 removal decision”); (b) to refuse an application he made on 16 January 2014 for variation of his leave to remain as a Tier 4 (General) Student Migrant (“the variation decision”); and (c) to detain him pursuant to the powers in Schedule 2 to the Immigration Act 1971 (“the 1971 Act”) (“the decision to detain”) .

The notice of the section 10 removal decision (in form IS151A Part 2) was served simultaneously with a notice also dated 29 June (in form IS151A) which stated that the Secretary of State was satisfied that the appellant was liable to be removed because he had used deception in seeking leave to remain in that the English language test he had taken on 25 July 2012 furnished with his application for leave contained “an anomaly” with his speaking test which “indicated the presence of a proxy test taker”.

In these proceedings, filed on 3 July 2014, the appellant claims that the Secretary of State’s refusal to vary the appellant’s leave, and her conduct in detaining him were unlawful. Thereafter, removal directions set for 4 July 2014 were cancelled and, on 28 July 2014, the appellant was released from detention. Blake J refused permission to apply for judicial review of the challenged decisions on the papers on 11 August 2014, and the appellant’s renewed application for permission was refused in an order dated 14 October 2014 by Ms D Gill, sitting as a Deputy Judge of the High Court: see [2014] EWHC 3876 (Admin). On 4 February 2015 I granted him permission to appeal against that order, but did not grant him permission to apply for judicial review.

Mr Southey QC has recently been instructed on behalf of the appellant. In the light of his review of the case, two applications were made on behalf of the appellant. The first, on 16 June 2015, is to adduce evidence that was not before the Deputy Judge. The evidence included a second witness statement of the appellant dated 5 June 2015, and a report by 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 relied on by the respondent in all cases which challenged removal decision made on the ground of deception in language testing. Their evidence has been described as “generic” evidence because it does not provide the exact reason why ETS invalidated the certificate of a particular person or provide evidence relating to that person’s personal circumstances but is based on the analysis of voice recognition software reviewed by two members of ETS’s staff trained in voice recognition. I refer to the generic evidence at [19] and [32] below. The second, made formally by application notice filed on 1 July, is to amend the grounds of appeal. Although Ms Giovannetti QC, on behalf of the respondent, submitted that the grounds were neither pleaded in the judicial review claim, nor the subject of an application to amend the judicial review grounds, the court considered both on a de bene esse basis; i.e. without deciding whether the applications should be granted. At the conclusion of the hearing, we stated that the appeal would be dismissed. I now give my reasons for that decision.

The appellant has a right pursuant to section 82(1)(g) of the 2002 Act to an “out-of-country” appeal in respect of the section 10 removal decision. He has, for the reason I give at [29] below, no right of appeal against the decision to refuse his application for variation of his leave to remain. It is clear law 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, only where that person can show there are “special or exceptional factors”: 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 and, most recently, R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744.

Mr Southey submitted that in the case of this appellant there are two factors which qualify as “special or exceptional” so as to justify him proceeding by way of judicial review. The first is that, as the result of a letter from the Home Office dated 8 February 2014, the appellant had a legitimate expectation that, if he took a further English language test, it would be taken into account in considering whether he met the English language requirements, and that this would be done while he was in the United Kingdom. Mr Southey also relied on what he described as “linkage” between the submissions that the decision to remove the appellant under section 10 of the 1999 Act was unlawful and the legality of his detention. Mr Southey submitted that the link was that the appellant was detained because he was said to have used deception in the July 2012 English language test. He also relied on the decision to refuse his application to vary his leave, contained in what he described as a composite decision dealing with leave and section 10. In short, he submitted that these circumstances constituted “special or exceptional factors” that should have led to the Deputy Judge concluding that his case should be considered by way of judicial review rather than by the statutory appeal.

In sections II and III of this judgment I set out or summarise the relevant legislation and the factual background. Section IV summarises the judgment below, and section V briefly considers the relationship between the section 10 notice and the variation decision. Section VI contains my reasons for concluding that the Deputy Judge was right to refuse permission to apply for judicial review.

These appeals are governed by the legislation in force prior to 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. Those amendments took effect from October 2014 for new Tier 4 applications, and from 6 April 2015 for other categories of applicant.

Section 3(1) of the Immigration Act 1971 (“the 1971 Act”) 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(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. Section 3C relates to 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).

The material parts of section 10 of the 1999 Act 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.”

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.

By paragraph 322(1A) of the Immigration Rules, “where false representations have been made or false documents or information have been supplied (whether or not material to the application, and whether or not to the applicant’s knowledge) or material facts have not been disclosed, in relation to the application”, leave to remain and variation of leave to remain must be refused. There is a further consequence in that paragraph 320(7B) provides that, where deception has been used in an application for leave, there is a range of sanctions in the form of a requirement that future applications be refused where the person does not leave the United Kingdom voluntarily.

The application for leave to remain in the United Kingdom the appellant submitted on 16 January 2014 was accompanied by a Test of English for International Communication (hereafter “TOIEC”) certificate issued by Educational Testing Services (hereafter “ETS”) as evidence that he met the English language requirement. The certificate was issued in respect of a test taken through an organisation known as Premier Language Training Centre on 25 July 2012. In February 2014 the appellant commenced a course in Tourist Hotel Management at Alpha College.

Earlier, in January 2014, the Home Office became aware of the intention of the television programme “Panorama” to broadcast a programme on 10 February which revealed that there was widespread fraud in the taking of English language tests, in particular by the use of “proxy” test-takers: see the witness statement of Rebecca Collings to which I referred at [6] above. Ms Collings also stated (at paragraph 21) that applicants who had applied for leave using an ETS test before ETS suspended those tests on 6 February were offered the chance to withdraw their application or take a test with another provider if they wished to avoid any delay to the processing of their application. She stated that “the offer to take a new test was made because, at the time, the Home Office were only aware of two test centres being subject to abuse and we believed the majority of applicants would have a genuinely obtained test score and be able prove this to us by using an alternative test”.

The appellant was one of those written to by the Home Office. The material parts of the letter, dated 8 February 2014, to him state:

“As part of your application you submitted test evidence for the English language requirements from ETS TOEIC. We have identified discrepancies with some evidence from this test provider and so we will not be able to process your application and have placed it on hold while we investigate.

Although we would normally decide your application within 8 weeks from the date it was submitted, unfortunately this is not going to be possible in your case. …

If you are concerned about the delay to your application, you can choose to take a new English Language test with one of the other providers listed on our website…and submit this alternative test evidence to us. This will enable us to progress your application.

We will still need to undertake a full assessment of your application against all other requirements of the Immigration Rules and this letter does not act as confirmation that your application will be successful should you choose to provide alternative English Language test evidence.

…

We will not accept new evidence from ETS; new evidence must be from a different provider. …” (emphasis added)

On 24 May 2014, the appellant sat an English language test at an organisation called “Lesoco”. On 6 June 2014, he was informed that he had passed with a score of 6.5. On 10 June 2014, the appellant sent the Home Office his results, the International English Language Tesing System (hereafter “IELTS”) certificate, and a copy of his passport.

After the “Panorama” broadcast on 10 February 2014, 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 as set out in the evidence of Rebecca Collings and Peter Millington on behalf of the Secretary of State is described in the decision of the Immigration and Asylum Chamber of the Upper Tribunal (“UTIAC”) in R (Gazi) v Secretary of State for the Home Department (ETS – Judicial Review) [2015] UKUT 00327 at [6] – [15]. ETS concluded that thousands of tests, including the appellant’s, had not been taken by the person who was named on the certificate but by another person. It provided the results of its review to the Secretary of State. As a result of this, on 29 June, immigration officers attended at the appellant’s home and detained him. The officers served the appellant with the section 10 removal notice and the letter refusing his 16 January 2014 application to vary his leave to which I have referred.

I have summarised the material parts of the section 10 removal decision at [4] above. The material parts of the letter, also dated 29 June 2014, stating that the application for variation of leave was refused are:

“In your application, you submitted TOEIC certificate(s) from Educational Testing Service (ETS).

Educational Testing Service (ETS) is obligated to report test scores that accurately reflect the performance of test-takers. For that reason, ETS routinely reviews testing irregularities and questions test results believed to be earned under abnormal or non-standard circumstances. ETS’s Score Cancellation Policy states that ETS reserves the right to cancel scores and/or take other action(s) deemed appropriate where ETS determines your test centre was not following established guidelines set forth by the TOEIC Programme. During an administrative review process, ETS have confirmed that your test obtained was through deception. Because the validity of your test results could not be authenticated, your scores from the test taken on 25 July 2012 at Premier Language Training Centre have been cancelled.

As deception has been used in relation to your application, it is refused under paragraph 322(1A) of the Immigration Rules.

Therefore you do not satisfy the requirements of the Immigration Rules for this category and it has been decided to refuse your application for leave to remain as a Tier 4 (General) Student Migrant under paragraph 245ZX(a) and paragraph 322(1A) of the Immigration Rules.

For the above reasons, I am also satisfied that you have used deception in this application.

…”

The letter states, in capital letters on page 1 and in section C on page 3, that there is no right of appeal against the decision. It also states, on page 2, that the Secretary of State was not satisfied that the appellant’s Tier 4 sponsor ensured that he is either competent in English language at the specified level or a person who meets an alternative requirement, and so was not satisfied that he met the requirement for 30 points to be awarded under Appendix A of the Immigration Rules. It states that the appellant’s application for leave to remain under paragraph 245ZX(c) of the Immigration Rules was, therefore, refused. In section B, on points considered and awarded, it is stated that, after verification of the TOEIC certificate submitted in support of the application with the awarding body, “it has been confirmed that you used deception during the examination process”.

The letter also states that the writer had considered whether it was appropriate administratively to remove the appellant and, having taken into account all the facts available to the writer, he was satisfied that the prejudice the appellant may suffer is not such that it is unfair to serve him with form IS151A, notice to a person liable to removal.

On 1 July 2014, while in detention, the appellant informed the Home Office that, after receiving the letter dated 8 February 2014 he had taken another language test, which he had passed and had posted the results to the Home Office and his college on 10 June 2014. He stated that he was a genuine student, that he had taken the TOEIC test in 2012 himself, and that the IELTS test which he took also fulfilled the requirements of the points-based system. He also stated that he was an asthma patient and that, if he went back to India without completing his studies, his career would go to ruin and that would be a shame for him. On 2 July 2014, his solicitors wrote a letter before claim to the Home Office claiming that the decisions made were in breach of the requirements of procedural fairness, and that no evidence to confirm that the appellant’s test result was obtained through deception had been provided.

In a further decision letter dated 9 February 2015 responding to the appellant’s 16 January 2014 application for leave to remain, and his letter dated 1 July, the Secretary of State considered whether returning the appellant to India would breach the appellant’s rights under the European Convention on Human Rights (“ECHR”). She concluded that it would not. The only part of this letter that is material in these proceedings is paragraph 8. That deals with the appellant’s 25 July 2012 language test, ETS’s review of the test, and ETS’s statement that the appellant’s test was obtained through deception, and that his scores from that test had been cancelled. The letter stated: “[y]our client are (sic) specifically considered a person who has sought leave to remain in the United Kingdom by deception following information provided to us by [ETS] … that an anomaly with your client’s speaking test indicated the presence of a proxy test-taker”.

In the witness statement dated 5 June 2015 but filed recently, the appellant reiterated that he had used the English language throughout his academic and personal life and had no reason to cheat. He also stated that when the Home Office suggested re-sitting the exam he did so without hesitation and passed, and that there was no motivation for him not to sit the exam, although he had to pay to do so. As to the question of an “out of country” right of appeal, the appellant stated that he was unable to return to India because his family had invested in him and his mother was relying on him to return with a certificate that would enable him to set up a business and take up a managerial role in India. He stated (paragraph 15) that when he informed his family of the false allegation they were shocked and that his relationship with his mother had broken down. She is ashamed of him and the shame he has brought on the family, and would not be willing to support him. He stated it was therefore important for him to remain in the United Kingdom to clear his name, as he has support from friends in this country.

The legal issues before us concern the decisions served on the appellant on 29 June 2014, his detention which ceased on 28 July 2014, and the Deputy Judge’s decision on 14 October 2014. On 14 July 2015, the day before the hearing, almost a year after the decisions under challenge, and eight months after the Deputy Judge’s decision, the Home Office wrote a further decision letter which it stated supplemented the decision letters dated 29 June 2014 and 9 February 2015, and which was directed to answer the appellant’s letters dated 1 and 2 July 2014, the claims made in his application for judicial review, and the further evidence submitted on 12 June 2015. This development is one which, in my judgment, is not relevant to the legal issues in this appeal but for completeness I summarise some of the points in the letter. The letter inter alia stated: (a) the fact that the appellant re-took the English language test showing that by 2014 he was sufficiently competent in English did not negate the evidence that he attempted to obtain leave by deception, i.e. using a proxy test-taker in his test taken on 25 July 2012 (paragraph 10); (b) even if the appellant had been capable of passing the test in 2012, that did not demonstrate that he did not cheat (paragraph 11); and (c) the fact that the appellant summarised the testing process did not demonstrate that he took the test himself in 2012 because there was evidence, including from the “Panorama” programme, that some candidates who used a proxy test-taker were present during the test (paragraph 11).

The Deputy Judge, dealing with a renewed application for permission to apply for judicial review, gave an understandably and commendably brief judgment. She dealt with the submissions that the Secretary of State had failed to interview the appellant and failed to put the evidence of deception relied on to him, that she had only produced generic evidence and there was no evidence that there was a positive match that the appellant had himself practised deception.

The Deputy Judge stated (at [5]) that the avenue Parliament provided to resolve a dispute such as this was a right of appeal which the appellant may exercise once he has left the United Kingdom. She referred to a number of decisions which considered the issue of procedural unfairness in such cases, including Lim and RK (Nepal), and stated (at [6] – [7]) that “the attempt to characterise the failings as maladministration as opposed to procedural unfairness makes no difference…”. The nub of the argument was that the appellant suffered unfairness, and that the Secretary of State has not established that the appellant practised deception. She concluded that that factual dispute should be ventilated in an “out of country” appeal, and the cases establish that a different course can only be taken in exceptional cases.

In Mehmood and Ali’s case (see [2015] EWCA Civ 744 at [38]) it was argued that Mr Ali was entitled to an in-country appeal because the first decision made was the refusal of his in-time application for a variation of leave. It was argued that the result of the refusal meant that the appellant had “no leave to enter or remain” and that it was thus an immigration decision triggering the an in-country right of appeal: see sections 82(1), 82(2)(d) and 92(1) and (2) of the 2002 Act set out at [13] above. The subsequent removal decision made pursuant to section 10 of the 1999 Act should not, it was submitted, be construed to deprive him of that right to appeal. In fact (see [28]) the removal decision was served on Mr Ali two minutes before he was served with the refusal of his application for the variation of his leave. That meant that, as a result of the effect of section 10(8) of the 1999 Act, his leave was invalidated so there was no leave left to vary, and it was the section 10 removal decision and not the refusal of his application for a variation of leave which meant that the appellant had “no leave to enter or remain”. This court (see [48]) stated that once section 10(8) invalidated the leave of a person who had applied for a variation of that leave, making a decision on the application for variation was legally unnecessary and was confusing and apt to mislead.

In the present case there was no evidence of the precise order in which the documents dated 29 June 2014 were served on the appellant. It appears that all the documents were served at the same time, although this is not absolutely clear. Mr Southey stated that in view of the uncertainty he was not able to pursue this point. The matter does not therefore fall for decision, but my preliminary view is that in principle the precise order in which documents served simultaneously are in fact served should not be legally significant. In R v Secretary of State for the Home Department, ex p. Vladic [1998] Imm AR 542, this court, albeit in a different context, stated that it is not necessary to resort to arguments relating to the sequence in which various documents are deemed to have been served on a person with only limited leave to remain: “it is sufficient that these documents were served simultaneously”.

The effect of Mehmood and Ali’s case

The only challenges to the legality of the appellant’s detention pursued in this court were those based on legitimate expectation and “linkage” to his detention. This was because Mr Southey accepted in the light of the decision in R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744, handed down the day before the hearing of this appeal, a copy of which was sent to him, that broader submissions based on absence of notice, and the challenge based on the respondent’s reliance on generic evidence for the contention that the appellant had used deception in the July 2012 English language test, and his particular personal circumstances were no longer sustainable.

In Mehmood and Ali’s case, it was held that those factors did not constitute special or exceptional circumstances justifying the use of the judicial review jurisdiction rather than the redress mechanism Parliament provided in the form of an “out of country” appeal. This court decided (see [69] – [70]) that the differences between the generic evidence of Ms Collings and Mr Millington referred to at [6] above, and the expert evidence of Dr Harrison, relied on by Mr Ali in that case, and the fairness of not giving notice and an opportunity to make representations, would be appropriately resolved in an out-of-country appeal. The court stated that the dispute about the reliability of ETS’s testing would be difficult to resolve in judicial review proceedings which are not designed for live evidence and cross-examination.

That decision also confirmed that the fact that the effect of serving section 10 notices on a person who is, for example, pursuing an educational course, will lead to great inconvenience and expense if he has to pursue an “out of country” appeal is not recognised as a special or exceptional circumstance. This is because, in the words of Sedley LJ in R (Lim) v Secretary of State for the Home Department [2007] EWCA Civ 773 at [25], that would empty Parliament’s prescribed procedure of content. The same applies in respect of the appellant’s statement that the accusation of deception brought shame on him in India and he wishes to clear the matter up before he returns. While referring to those matters, Mr Southey, correctly, in my judgment, did not pursue them.

I first address the submission that the letter dated 8 February 2014 (set out at [17] above) created a legitimate expectation in the appellant. Mr Southey’s formulation of the expectation was that, if the appellant took an additional English language test, it would be taken into account in considering whether he met the English language requirements, and that this would be done while he was in the United Kingdom. Mr Southey submitted that it is manifest from the package of decisions contained in the documents dated 29 June 2014 that this was not done when the Secretary of State made the decisions to refuse to vary the appellant’s leave and to remove him from the United Kingdom. In particular, the refusal of the application for a variation of leave (see [21] – [22] above) only referred to the July 2012 test in reaching the conclusion that the appellant had not shown that he was competent in English language to the specified level.

I reject the submission that the letter dated 8 February 2014 gave rise to the legitimate expectation formulated by Mr Southey. The letter does not contain a clear representation, let alone a clear promise, that, even if the appellant was found to have cheated in his earlier test, the later “alternative English language test evidence” would be taken into account. All that is stated in the letter is that, if alternative test evidence is submitted, that would enable the Home Office to progress the appellant’s application pending the investigation into the discrepancies identified with ETS’s tests. At its highest, the letter thus only amounts to a representation that the moratorium on the Home Office’s consideration of applications supported by an ETS test would not apply where an alternative test was supplied. I add that it is not surprising in the light of Ms Collings’s evidence (see [16] above) that the letter dated 8 February is phrased as it is. The letter was sent at an early stage of the investigation into the fraud, before the respondent had received the results of ETS’s analysis of the language tests, when the Home Office was only aware of two test centres being subject to abuse, and, as it stated, while the Home Office was investigating the discrepancies.

Mr Southey submitted that the statement by Bingham LJ in R v IRC, ex p. MFK Underwriting Agents Ltd [1990] 1 WLR 1545 at 1570B that it would not be “fair to hold the Revenue bound by anything less than a clear, unambiguous and unqualified representation” was qualified by his Lordship’s earlier statement that this was so “on facts such as the present”. I reject that submission. There are many statements in the cases in contexts other than taxation and on facts different to those in MFK Underwriting that what is required to found a legitimate expectation is a clear representation. For example, in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, reported at [2009] AC 453 at [60], Lord Hoffmann stated that “a legitimate expectation can be based only upon a promise which is ‘clear, unambiguous and devoid of relevant qualification’”. See also the authorities collected in Fordham’s Judicial Review Handbook (6^th ed) at 41.2.7. In my judgment, the terms of the letter dated 8 February 2014 do not preclude the respondent from taking a removal decision or refusing an application for leave on the basis that deception has been used. Accordingly, the first limb of Mr Southey’s reformulation of the challenge is not made out.

The second limb of the challenge is based on “linkage” between the alleged unlawfulness of the decision to remove the appellant and the legality of his detention. I leave aside the fact that the issue of the appellant’s historic detention was not raised in argument before the Deputy Judge gave her ruling, and that, after the ruling, it was stated to be “a secondary issue”.

Once the legitimate expectation foundation of the “linkage” is removed, however, the issue is much narrower and any force in the “linkage” argument is largely dissipated. In my judgment, after the individual who was detained has been released, as this appellant was on 28 July 2014, the fact that he also seeks to challenge the legality of what is now an historic detention is not a reason for exercising the judicial review jurisdiction.

In Secretary of State for the Home Department v Draga [2012] EWCA Civ 842, Sullivan LJ stated (at [60]) that “in the great majority of cases, the mere fact that an appeal has been allowed under section 82(1) [of the 2002 Act] will not mean that the decision to make the deportation order was unlawful in a way which was relevant to the decision to detain”. In R (Khan) v Secretary of State for the Home Department [2014] EWCA 2494 (Admin), Green J (at [86] and [88]), after considering the decision in Draga, stated that, in a situation where the issues on the underlying section 10 decision were intertwined with the decision to detain, “the tribunal’s decision on the merits of the removal decision should be determined first” and that “to take a decision … upon the question of detention without having benefit of a reasoned decision of the tribunal on the question of the legality of the removal decision would be to risk putting the cart before the horse”. I respectfully agree.

In my judgment, it is important that the appellant was released after about a month’s detention, and has been at liberty for almost a year. The position may have been different if he was still detained. In those circumstances, the strong interest in the expeditious resolution of the legality of the detention of a person who is still not at liberty might constitute a special or exceptional circumstance justifying the exercise of the judicial review jurisdiction. Where, however, the individual has been released from detention, he or she will be able to proceed to challenge the lawfulness of the detention and seek damages in the civil courts once the legality of the section 10 removal decision has been established in the forum designated by Parliament.

Before leaving this case, I observe that, even if I had concluded that the appellant had shown an arguable case based on legitimate expectation, I would not have considered that that, in itself, constituted a special or exceptional circumstance justifying the exercise of the judicial review jurisdiction. Mr Southey argued that a breach of a legitimate expectation is a particularly serious public law flaw. He relied on the judgment of the Privy Council in Harley Development Inc v Commission of Inland Revenue [1996] 1 WLR 726 at 736, where the Judicial Committee stated that “where a statute lays down a comprehensive system of appeals procedure against administrative decisions, it will only be in exceptional circumstances, typically an abuse of power, that the courts will entertain an application for judicial review of a decision which has not been appealed”. He accepted that the term “abuse of power” can be used to describe any public law error and this was too wide. But he submitted that the reference to the absence of unfairness in that case suggested that their Lordships considered that fairness was a key factor.

The statement in the Harley Development case is dicta, albeit of very high authority, and does not reflect the fact that, as recognised by Mr Southey, the term “abuse of power” can be used to describe any public law error. Giving the term “abuse of power” a broad meaning would have the effect of, again deploying the words of Sedley LJ in Lim’s case, emptying Parliament’s prescribed procedure of content. I do not consider that confining it to “unfairness” assists, since that would include procedural unfairness. As stated in Mehmood and Ali’s case at [53], 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”. On this, as well as the decision of Coulson J in R (Ali Zahid) v Secretary of State for the Home Department [2013] EWHC 4290 (Admin) at [16ff] referred to in Mehmood and Ali’s case, see R (Mohamed Bilal Jan) v Secretary of State for the Home Department (Section 10 Removal) [2014] UKUT 000265 (IAC) at [37] and [39], and R (Gazi) v Secretary of State for the Home Department (ETS – Judicial Review) [2015] UKUT 00327 at [42] – [44].

Mr Southey also relied on two other matters. The first was the reference, in the context of abuse of process (a concept which he thought was otherwise inapplicable in the present context), in R v Horseferry Road Magistrates’ Court, ex p. Bennett [1994] AC 42 at 62A to the responsibility of the judiciary to ensure that the executive does not act in a manner that threatens the rule of law. The second is that the decision of this court in Nadarajah v Secretary of State [2005] EWCA Civ 1363 shows that breach of a legitimate expectation is regarded as a particularly serious matter. Laws LJ stated (at [68]), “public bodies ought to deal straightforwardly and consistently with the public” and that “the principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances”. An appeal before the independent tribunal set up by Parliament for the purpose which determines the issues between the appellant and the respondent from which there lies a further appeal should, however, suffice to protect and indeed vindicate the rule of law.

Beyond the cases of jurisdictional fact mentioned in Mehmood and Ali’s case at [52] and (something I hope would never occur) the abusive manipulation of the system by the Secretary of State or her officials, I consider that it is undesirable to seek to define a category of “special” or “exceptional”. It would, in my judgment, only be where there is compelling evidence that, in the circumstances of a particular case, the issues could not properly or fairly be ventilated in an “out of country” appeal, that it might be possible to argue that the circumstances are special or exceptional. The nearest one comes to an example of manipulation of the system was the case of a Ms Pengeyo, considered by Sedley LJ in Anwar and Adjo’s case, which I summarised in Mehmood and Ali’s case at [64] – [65]. In Mehmood and Ali’s case, I also suggested (at [71]) that serious ill-health of the person affected or some other exigency might qualify, although I considered that the threshold would be high. I add that, on reflection, I consider that the threshold would be very high.

These are my reasons for concluding at the end of the hearing that this appeal against the refusal of the Deputy Judge to grant the appellant permission to apply for judicial review should be dismissed.

I agree.

I also agree.