Rahman, R (on the application of) v The Secretary of State for the Home Department

Some sets of criteria for leave to remain under the Immigration Rules include a requirement that the applicant passes a test of proficiency in the English language. In 2014, one form of the approved test, “Test of English for International Communication” (“TOEIC test”) provided by Educational Testing Service (“ETS”), was the subject of a television programme which suggested that there was widespread cheating by the use of proxies in the spoken English part of that test. At the request of the Secretary of State, ETS employed voice recognition software to go back over recordings to identify different tests in which it seems that the same voice appears, which could thus be assumed to be the voice of a professional proxy. In reliance on ETS’s findings, the Secretary of State cancelled or refused leave to remain for over 40,000 persons who were said to have obtained leave on the basis of such cheating.

Many individuals identified in that way denied cheating, and brought proceedings challenging the relevant decision of the Secretary of State by way of judicial review. Generally, the claims were unsuccessful, often at the permission stage. To assist with the ultimate resolution of these cases, four were chosen for consideration by this court on appeal. They fell into two categories.

First, there were cases in which the applicant had been served with a notice of liability to “administrative” removal under section 10 of the Immigration and Asylum Act 1999 (“section 10”) on the basis that he had used deception in obtaining extensions of their leave by using a proxy for the spoken part of his TOEIC tests. They each denied doing so and, relying on R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42; [2017] 1 WLR 2380 (“Kiarie & Byndloss”) (which held that an out-of-country appeal was not a fair or effective procedure in the different context of challenging a deportation order), they sought permission from the Upper Tribunal (Immigration and Asylum Chamber) (“the Upper Tribunal”) to apply for judicial review of the section 10 decision. Permission was in each case refused on the basis that the applicant had an appropriate alternative remedy in the form of an out-of-country appeal. The primary issue raised by the cases in this court was whether such an appeal was indeed an effective remedy.

Second, there were cases in which there had been no section 10 decision, but an application for leave to remain on human rights grounds had been refused by the Secretary of State partly on the basis that the applicant had cheated in a TOEIC test. Such a disappointed applicant would generally have been entitled to an in-country appeal against that decision; but the Secretary of State certified each of these cases under section 94(1) of the Nationality, Immigration and Asylum Act 2002 (“section 94(1)”) on the basis that the human rights claim was “clearly unfounded”. Certification meant that any appeal could only be pursued from outside the United Kingdom. In each case, permission to apply for judicial review of the certification was refused by the Upper Tribunal. Again, the main issue before this court was whether an out-of-country appeal was an appropriate remedy.

In a substantial judgment (Ahsan and Others v Secretary of State for the Home Department [2017] EWCA Civ 2009 (“Ahsan”)), this court (Underhill, Floyd and Irwin LJJ) held that, in a case in which a decision to remove an individual had been made on the basis that he had cheated in a TOEIC test, an out-of-country appeal would not be an effective remedy where (i) it would be necessary for the appellant to give oral evidence and (ii) facilities for him to do so by video-link from the country to which he would be removed are not realistically available (see [158(3)]). Therefore, the court accordingly held that, unless the person in question would achieve an equivalent remedy by an in-country human rights appeal under the later regime of the Immigration Act 2014, persons against whom a section 10 removal decision had been made were entitled to challenge it by way of judicial review at which the issue of whether the applicant had cheated could be determined on the basis of evidence including oral evidence (see [158(3)-(4)]). The court further held that certification of a human rights claim under section 94(1) where the decision-maker had taken into account cheating (as he had found it to be) was liable to be quashed, to allow an in-country appeal to proceed at which the issue of cheating could be considered and determined, again on the basis of full evidence (see [158(5)]).

After that judgment had been handed down, the Secretary of State reviewed appeals in this court which had been stayed pending Ahsan, about 250 in number; and subsequently offered to compromise them. In the section 10 appeals, in which the appeal was against the refusal to grant permission to proceed with a judicial review of the decision to remove, the offer was on the basis that by consent the appeal be allowed, permission to judicial review be granted and the substantive judicial review be remitted to the Upper Tribunal for determination. The offers made were on the basis that all costs (including the costs of the appeal) would be reserved to the tribunal pending that determination.

It seems that most of the appellants were content with the substantive relief offered, but not with the proposed costs order. They generally sought an order for their costs of the proceedings (including the appeal) to date, on the basis that they had been successful.

At the Secretary of State’s request, four cases were chosen, with a view to full written costs submissions being made prior to a single judge determining the costs issue in those cases on the papers. It was hoped that, in that way, guidance might be given to enable many or all of the other cases to be disposed of by consent. In the event, one of the selected cases was not suitable, because on its facts it did not fall within the category of case to which the Secretary of State had offered settlement.

The costs applications in the remaining three cases now fall to me for determination. Two cases (those of Mr Rahman and Mr Al Amin) are section 10 cases. The third case (that of Mr Ali) is a certified human rights case. Although the parties have requested that the determination is made on the papers – and I consider that the applications can be justly and properly determined without an oral hearing – I am responding to the applications in the form of a written judgment so that, insofar as it may be of any help, it can be openly used to assist with the resolution of the many cases behind it.

Sonali Naik QC and Irena Sabic of Counsel made written submissions on behalf of Mr Rahman; Ms Naik and Greg Ó Ceallaigh of Counsel on behalf of Mr Al Amin; and Amanda Jones of Counsel on behalf of Mr Ali. David Mitchell of Counsel made written submissions for the Secretary of State. At the outset, I thank them all for their assistance.

The legal framework for costs in judicial review proceedings was helpfully set out in the recent judgment of Singh LJ in ZH (Afghanistan) and KA (Iraq) v Secretary of State for the Home Department [2018] EWCA Civ 1059 at [34]-[52], which I commend. For the purposes of these applications, I can be relatively brief.

CPR rule 44.2 confers a discretion on the court as to whether or not costs should be paid by one party to another, the amount of any costs and when they are to be paid, and the form of the order. If an order for costs is to be made, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. However, that does not preclude the court from making a different order. In deciding what order to make on costs, the court will have regard to all the circumstances, including the conduct of the parties and whether a party has succeeded in its case in whole or in part.

This court considered the application of the general costs rules in the public law context in R (M) v Croydon London Borough Council[2012] EWCA Civ 595; [2012] 1 WLR 2607. At [44]-[46], Lord Neuberger of Abbotsbury MR (with whom Hallett and Stanley Burnton LJJ agreed) identified three general principles which apply to costs after a trial in ordinary civil litigation, as follows:

“44.

… The first is that any decision relating to costs is primarily a matter for the discretion of the trial judge, which means that an appellate court should normally be very slow to interfere with any decision on costs.… [I]f a trial judge departs from rationality or the correct principles it is legitimate for an appellate court to interfere with his conclusion.

45.

The second principle is that… the general rule in all civil litigation is that a successful party can look to the unsuccessful party for his costs. Of course as CPR 44.3(2)(b), (4), (5) and (6) demonstrate, there may be all sorts of reasons for departing from this principle, but it represents the prima facie position…

46.

The third principle is that the basis upon which the successful party’s lawyers are funded… will rarely, if ever, make any difference to that party’s right to recover costs…”.

Lord Neuberger dealt with cases in which there had been no determination on the merits, at [47]:

“It is open to parties in almost any civil proceedings to compromise all their differences save costs, and to invite the court to determine how the costs should be dealt with. The court has jurisdiction in such a case to determine who is to pay costs, but it is not obliged to resolve such a free-standing dispute about costs.”

Having cited the judgment of Chadwick LJ in BCT Software Solutions Limited v C Brewer & Sons Limited[2003] EWCA Civ 939 – and confirming that the general position where there had been a compromise in a public law claim was no different from a private law claim, and that each case will depend upon its own facts – at [60]-[63], Lord Neuberger identified three categories of claim, in which general points could be made with regard to the correct approach to allocation of costs in public law cases where there had been a compromise. First, where a claimant had been wholly successful (i.e. had achieved what he set out to achieve), a claimant should generally be entitled to all his costs. Second, where he has succeeded only in part, no order for costs might be appropriate. Third, where there is a compromise that does not actually reflect the claimant’s claims, there is an even stronger case for there to be no order for costs, particularly if it was not “tolerably clear” who would have won if the matter had not settled.

Those principles are now well-established. With appropriate modification, they are equally applicable where there has been an appeal.

This court of course has power to make an order in respect of the costs below (CPR rule 52.20).

I now turn to the individual applications before me.

Mr Rahman is a Bangladesh national, who entered the UK on 28 October 2009 with leave as a Tier 4 (General) Student which was extended from time-to-time. He passed a TOEIC test in October 2012. On the basis of that result, he was granted leave to remain until 30 November 2014 as a student at Blake Hall College.

On 13 August 2014, Blake Hall College wrote to Mr Rahman indicating that his registration at the college had been terminated because (i) he breached the attendance regulations by not achieving a minimum of 80% attendance and (ii) he had been identified by the Secretary of State as having previously submitted a fraudulently obtained TOEIC test certificate.

The procedural history thereafter was lengthy and somewhat tortuous; but, for the purposes of this application, it is unnecessary to go into it in any detail. It is sufficient to say that a section 10 decision to remove was made by the Secretary of State on 29 September 2014, the service of which had the effect of terminating Mr Rahman’s leave to remain. On 1 October 2014, he was served with a notice requiring him to report. On 13 January 2015, the section 10 decision was revoked and replaced by another decision to remove under section 10.

On 26 January 2016, in person, Mr Rahman issued judicial review proceedings in the Upper Tribunal, particularly challenging the decision requiring him to report, but this was treated by the tribunal as in substance also challenging the section 10 decision. On 9 May 2016, Upper Tribunal Judge Frances refused the application for permission to proceed with the judicial review on the basis that (i) it was too late and (ii) in respect of the challenge to the section 10 decision, Mr Rahman had a suitable alternative remedy in the form of an out-of-country right of appeal. The judge declared the application to be totally without merit; and, on 30 June 2016, refused permission to appeal to this court.

On 1 August 2016, Mr Rahman appealed to this court against that refusal of permission to proceed. The appeal was stayed behind Ahsan. After judgment was handed down in that case, Mr Rahman obtained legal aid and legal representation; and the submissions of Ms Naik and Ms Sabic, filed on 12 February 2018 in response to my directions of 15 December 2017 and 6 February 2018, confirmed that the relief Mr Rahman sought from this court was (i) to allow the appeal, (ii) to extend time and to grant permission to proceed with the judicial review and (iii) to remit the substantive judicial review to the Upper Tribunal for determination notably of the issue relating to deception. Indeed, that was the most that could have been achieved from this court.

On 22 May 2018, the parties agreed a consent order which, expressly without determining the substantive merits, granted Mr Rahman that relief and gave directions for exchange and filing of submissions in relation to costs.

Ms Naik and Ms Sabic for Mr Rahman submit that Mr Rahman has been “wholly successful” so that, unless there is good reason to the contrary, he should be entitled to his costs to date of both the judicial review and the appeal, or alternatively of the appeal alone. Mr Mitchell for the Secretary of State seeks an order that all costs are reserved to the Upper Tribunal; but submits that this court should direct in some detail how the tribunal should exercise their discretion as to costs dependent upon the eventual finding with regard to deception.

In respect of the appeal, in my view there can be no doubt but that Mr Rahman has been wholly successful, in that he has achieved all that he sought to achieve from the appeal, namely that the appeal be allowed, permission to proceed with judicial review be granted and remittal of the substantive judicial review to the Upper Tribunal for determination, as effectively required after Ahsan. In my view, in those circumstances, Mr Rahman is entitled to his costs of the appeal in any event. That is so irrespective of what the tribunal might ultimately find in relation to the allegation of deception or otherwise.

However, with regard to the costs of the judicial review, the position is different. As yet, Mr Rahman has not succeeded in respect of the issues raised in that claim, notably whether he used deception in respect of the TOEIC test. Those issues will in due course be determined by the Upper Tribunal. In my view, the costs of the judicial review cannot be dealt with now. They should await the outcome of the claim before the tribunal. It is unnecessary for this court to make any order in respect of those costs: other than the costs of the appeal with which I have dealt, the past and future costs of the judicial review claim can be considered and dealt with by the tribunal at the appropriate time in the usual way.

In addition, there will be the usual order for the detailed assessment of Mr Rahman’s publicly funded costs of the appeal.

Therefore, in Mr Rahman’s case, subject to any observations of Counsel on the precise form of the order, I shall order that:

In my view, there is no material difference between Mr Rahman’s case and that of Mr Al Amin.

Mr Al Amin is also a Bangladesh national, who entered the UK on 12 May 2010 with leave as a Tier 4 (General) Student which was extended from time-to-time eventually being valid to 30 May 2015. He passed a TOEIC test in September 2012, as he required such a pass to obtain leave to remain to study at Havering College, which he did until August 2013. In September 2013, he began an HND Level 6 course followed by a BSc course in applied computing at Glyndŵr University.

On 10 September 2014, Glyndŵr University wrote to Mr Al Amin saying that they had been notified by the Secretary of State that his TOEIC test certificate was invalid because it had been obtained by deception. As a result his Confirmation for Acceptance of Studies had been withdrawn and, with it, his leave to remain.

On 31 October 2014, Mr Al Amin was served with a section 10 notice of removal, which he challenged by way of judicial review issued on 23 January 2015. Again, for the purposes of these applications it is unnecessary to go into the detail of the precise procedural path of that claim; but, (i) on 12 August 2017, Mr Al Amin’s claim having been struck out, Upper Tribunal Judge Gill ordered Mr Al Amin to pay the Secretary of State’s costs of preparing an Acknowledgment of Service and summary grounds; and (ii) on 3 May 2017, the claim having been reinstated, Upper Tribunal Judge Freeman refused permission to proceed on the basis that the decision “carried with it an out-of-country right of appeal, which was the appropriate way of challenging it…”. The judge declared the claim to be totally without merit, and he refused permission to appeal to this court on 30 May 2017. He left the earlier costs order in place.

On 30 June 2017, Mr Al Amin appealed to this court, challenging the refusal of permission to proceed below. The claim was initially stayed pending the outcome of Kiarie & Byndloss, and then Ahsan. After judgment was handed down in the latter, this appeal was compromised on identical terms to those in Mr Rahman’s case.

The costs submissions of the parties were essentially the same as those in respect of Mr Rahman, except Ms Naik and Mr Ó Ceallaigh restricted their application to seeking the costs of the appeal.

In my view, the costs considerations are essentially the same as in Mr Rahman’s case; and, therefore, as in that case and for the same reasons, subject to any observations of Counsel on the precise form of the order, I shall order that:

Mr Ali is a Pakistan national, who entered the UK on 6 September 2009 with leave as a Tier 4 (General) Student which was later extended to 31 December 2011. On 30 December 2011, he applied for leave to remain, again as a Tier 4 (General) Student. That application required evidence of proficiency in the English language, and Mr Ali submitted a TOEIC test certificate from ETS. Leave was granted, as was further leave to remain as Tier 1 Post Study Migrant in April 2012 valid until August 2014. A further application in 2014 to remain as a Tier 1 Entrepreneur was refused; and, on 30 March 2015, Mr Ali was served with removal papers.

On 17 November 2015, Mr Ali applied for leave to remain on family and private live grounds. That application was refused on 27 April 2016, on the basis that (i) the TOEIC test certificate upon which the earlier leave had been granted was fraudulently obtained by the use of a proxy, and (ii) the marriage certificate relied upon in the instant application was also obtained by deception. Mr Ali’s human rights claim was certified under section 94(1) as clearly unfounded.

On 7 July 2016, Mr Ali issued judicial review proceedings in the Upper Tribunal, challenging the certification. The claim sought costs on an indemnity basis.

On 10 October 2016, Upper Tribunal Judge Perkins refused permission to proceed on the papers; and, on 2 December 2016, Upper Tribunal Judge McWilliam upheld that refusal at an oral hearing.

It is clear from the claim – and, of course, quite understandable – that Mr Ali was particularly concerned about the findings of the Secretary of State that he had been deceitful both in respect of his TOEIC test certificate and his marriage, which in his view amounted to a finding that he had committed perjury and was not lawfully married. Of that, in paragraph 6 of her determination, Judge McWilliam said:

“The applicant has a right of appeal, albeit out-of-country, against the substantive article 8 decision, and this is an adequate remedy. This will enable him to challenge the decision in respect of the English language certificate and the lawfulness of the marriage. The applicant has previously challenged the decision in respect of the English language certificate and he was refused permission in a decision issued on 27 October 2015, Upper Tribunal Judge Hanson having decided that an out-of-country appeal was an adequate remedy.”

However, she also said this (at paragraph 5):

“Putting aside the issues in relation to the validity of the marriage and ETS certificate, the application has no prospect of success. The applicant cannot meet the requirements of the Rules and it is not arguable that the applicant advanced compelling circumstances that would entitle him to leave outside the Rules. There is no material arguable error of law. It is unarguable that the decision, on the evidence before the decision maker, breaches the applicant’s rights under art 8 under the rules or outside of the Rules.” (emphasis added).

At the same hearing the judge refused permission to appeal to this court.

On 6 December 2016, Mr Ali renewed that application to this court. The application was stayed pending the outcome of Ahsan; and, following the delivery of judgment in that case, on 22 May 2018 the substantive appeal was compromised by a consent order in which, again expressly without determining the merits of the claim, Mr Ali was granted permission to appeal, the appeal was allowed and the application for leave was remitted to the Secretary of State to remake the decision. The reasons annexed to the order explained:

“The [Secretary of State] has reviewed her position in the light of [Ahsan]. In accordance with the findings in that case, and taking a pragmatic approach in the circumstances relevant to this appeal, the [Secretary of State] proposes the certificate is withdrawn. The decision is remitted to [Secretary of State] to reconsider her decision in the light of the withdrawn certificate, and with particular regard to the materiality of the fraud accusation to the human rights claim. A new decision will be forthcoming to the Appellant.”

Costs were left outstanding, and made subject to directions for the exchange of written submissions which have now been served and lodged.

Mr Mitchell for the Secretary of State submits that the order for costs he proposes on the cases of Mr Rahman and Mr Al Amin is equally appropriate here: no findings have yet been made in respect of Mr Ali’s conduct in connection with his TOEIC test and marriage and, not until such findings are made, can costs be determined. On the other hand, on the basis that “there was no basis in law or fact for the original decision’s statement that he had committed perjury and that his marriage was unlawful”, Ms Jones submits that the Secretary of State should pay Mr Ali’s costs of the claim and appeal on an indemnity basis.

I find significant difficulty in accepting key elements of either set of submissions.

So far as Mr Mitchell’s submissions are concerned, as Ms Jones emphasises, the judicial review claim was not directly concerned with whether the findings and conclusion of the Secretary of State on Mr Ali’s application for leave to remain were sound; but only whether he (the Secretary of State) was entitled to certify the human rights claim as clearly unfounded which determined from where an appeal (which would directly concern and determine those factual matters) should be made, in country or out-of-country. Even if an application for leave to remain is clearly unfounded, there is still an (out-of-country) right of appeal. In any event, an order reserving costs is clearly inappropriate, given that there is no court or tribunal to which to reserve them to, the substantive claim having been entirely compromised. If there is a new decision by the Secretary of State with which Mr Ali is dissatisfied, then that decision will have to be the subject of a new challenge in the appropriate court or tribunal.

However, turning to Ms Jones’ submissions, I do not accept that I can proceed as if there had been findings that Mr Ali has not been deceitful in respect of his TOEIC test and/or his marriage. No such findings by an independent tribunal have yet been made, and I cannot pre-empt them. In any event, in this case, Judge McWilliam concluded that, leaving aside any issues in relation to the language test and marriage, the claim for leave to remain on human rights grounds was bound to fail in any event such that the certification was certainly lawful. She considered that, leaving aside entirely any issue involving deception, Mr Ali could not in any event satisfy either the criteria in the Rules or the requirement for exceptional circumstances. In many cases where the Secretary of State makes findings of deception, it would be impossible to say that, if he had left all such factors out of account, he would inevitably have come to the same conclusion with regard to section 94(1) certification; but that appears to have been Judge McWilliam’s conclusion. In the judicial review claim, it would have been open to the Secretary of State to have relied upon matters other than those involving deception to have maintained the validity of the certification; although, of course, the court may have been persuaded that it would in any event have been wrong to leave the Secretary of State’s findings of fact in place. However, the consent order states that the Secretary of State had adopted the course he did for pragmatic reasons, and, on the basis of all the evidence, I accept that he did.

Following Ahsan, in some cases where there has been certification under section 94(1) on the basis that deception in relation to a TOEIC test had been weighed in the balance that article 8 requires to be performed, no doubt the appropriate order will be that the costs of the claim and/or appeal should be payable by the Secretary of State. However, in the unusual circumstances of this case, I consider the appropriate order is that there be no order as to costs of the claim or the appeal.

Therefore, again subject to any submissions on the form of the order, I would order that (i) paragraph (6) of the Order of Judge Perkins dated 10 October 2016 be quashed, and (ii) there shall be no order for costs in respect of the claim or appeal.

As I indicated at the outset of this judgment, it was hoped that the approach of the court in relation to these applications would assist in the resolution of other appeals in which similar points arise. I do not know the extent to which this judgment might assist in resolving other cases. However, it seems to me that the parties in those cases should be given some time to consider their position, and agree a consent order if possible, in the light of this judgment.

I therefore propose that that parties in those cases have until 31 July 2018 to attempt settlement; and that, by 17 August 2018, the Secretary of State through the Government Legal Department updates this court on the progress of those negotiations. Of course, that direction does not prevent any party making any application to court that it considers appropriate in the circumstances of a particular appeal.