Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE STEWART QC
Between:
THE QUEEN ON THE APPLICATION OF FAZAL-E-HAQ
Claimant
v
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
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Mr Z Nazim (instructed by FLK, London E10 5PW) appeared on behalf of the Claimant
Mr D Mankwell (instructed by the Treasury Solicitors) appeared on behalf of the Defendant
J U D G M E N T
THE DEPUTY JUDGE:
Introduction
This is an application for judicial review by the claimant of the defendant's decision, on 8 April 2008, to remove him from the UK to Pakistan, pursuant to the powers contained in section 10(1) of the Immigration and Asylum Act 1999 "the 1991 Act". Permission was granted by Burnett J on 9 October 2008. Section 10(1) of the 1999 Act reads:
"10 Removal of certain persons unlawfully in the United Kingdom
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-
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;
he uses deception in seeking (whether successfully or not) leave to remain."
Factual background
The claimant arrived in the UK on 5 September 2005 and was granted leave to enter as a student and enrolled at the London Vocational and Management Training College. On 20 April 2006, he left that college and enrolled at "Lloyds College". On 5 May 2006, his leave to remain was varied so that it became due to expire on 30 November 2006.
On 30 November 2006, he applied to vary his leave on the basis that he was a student enrolled at Lloyds College. On 28 December 2006, his leave to remain was varied to take account of the change Lloyds College and became due to expire on 31 December 2007. On 28 December 2007, he submitted a further application form for variation to leave. His leave to remain expired on 31 December 2007.
By a letter of 31 December 2007 the Secretary of State wrote to the claimant. I will come to that letter in detail later, but an extract is:
"Thank you for the application ... it will now be passed to a casework unit. Until the application is looked at by a caseworker, we cannot tell whether we will be able to complete it quickly. If there is any problem with the fee payment or the validity of the application, or more information or evidence is needed, a caseworker will contact you in writing or by telephone".
The claimant's application of 28 December 2007 was incomplete and was returned to him under cover of a letter, dated 22 January 2008, stating that he failed to provide all of the required photographs and documents that were relevant to his application, as specified in the documentary evidence section of the form. The missing items were identified by a red cross next to them. There is a screen print of the defendant's case information data base records relating to the application of 28 December 2007, which states:
"IN TIME APPLICATION
Applicant is applying for further leave to remain as a student. Leave expired 31/12/07. Bank statements do not cover the last three months. Therefore application is rejected and all documents listed below return back to applicant's home address."
The letter of 22 January 2008 concluded by stating:
"If you do not return your application within 28 days in a manner that complies with all the above-mentioned requirements, the application will be invalidated and the fee (if any) will be refunded."
That 28-day period expired on 19 February 2008.
On 16 March 2008, the claimant dated his resubmitted application for this application to remain to be varied as a student enrolled at the London Academy of Business and Technology. That was apparently received by the defendants on 26 March 2008. The application was refused on 8 April 2008, three matters being raised:
that the previous leave to remain had been obtained by deception, the claimant having enrolled at a bogus college, Lloyds College;
the claimant's previous leave had by that point expired, and he did not meet the requirements of paragraph 60 of HC395;
that as he had no leave to remain he had no right of appeal.
The relevant extract from the undated letter of the Secretary of State reads as follows:
"Dear Mr Haq
It has recently come to our attention that the college you were last granted leave to remain to study at is not a bona fide education establishment.
The Immigration Rules require that anyone wishing to enter or remain in the United Kingdom as a student must have been accepted on a course of study which is to be provided by an organisation which is included on the Register of Education and Training Providers (formerly known as the Department for Education and Skills' Register of Education and Training Providers) and is able and intends to follow:
[It then sets out various requirements]
As part of an application for leave to remain as a student signed by you on 27 November 2006 you submitted an enrolment letter by Lloyds College where you claimed to have been studying since April 2006. We are aware from our own enquiries that Lloyds College is not, and never has been, a bona fide educational establishment and that it is reasonable to believe that this would have been known to any person claiming to have studied or be enrolled there.
Therefore, we are satisfied, on the basis of the evidence available, that you have obtained leave to remain in the United Kingdom by means of deception.
Moreover, as you have since remained beyond the expiry of that leave, you are now an overstayer, and so have no lawful basis of stay in the United Kingdom.
On 20 March 2008 you made a late application for further leave to remain as a student. In view of the fact that your last leave to remain was obtained by deception that you now submitted your passport with your new application showing that leave endorsed therein, it is considered that you are again seeking to rely on that deception in order to gain further leave to remain. Your previous leave has now expired, and you do not meet the requirements of the Immigration Rules relating to Paragraph 60 of HC395. Your application is therefore refused, and as you have no leave to remain in the United Kingdom, you have no right of appeal against this decision."
Then a little later:
"A decision has also been taken to remove you from the United Kingdom pursuant to powers contained in Section 10(1)(b)of the Immigration and Asylum Act 1999. Enclosed is form IS151A which sets out your immigration status and liability to detention."
On form IS151A, which is dated 8 April 2008, it states:
"I have considered all the information available to me and I am satisfied that you are either:
[A) is not ticked] B) is ticked]
"a person in respect of whom removal directions may be given in accordance with section 10 of the Immigration and Asylum Act 1999 (administrative removal) as:
a person who has failed to observe a condition of leave to enter or remain, or remains beyond the time limited by the leave;
a person who used deception in seeking (whether successfully or not) leave to remain;
person whose indefinite leave to enter or remain has been revoked under section 76(3) of the Nationality, Immigration and Asylum Act 2002 (person ceasing to be a refugee),
a member of the family of such a person."
Then there is a box with "Specific statement of reasons":
"On 22 December 2006 you were granted leave to remain in the United Kingdom until 31 December 2007 as a student in order to study at Lloyds College and provided evidence in support of that application from that college that is known to be bogus. We are satisfied for the reasons given in the enclosed letter that the leave you were granted was obtained by deception. Moreover, as that leave has now expired you are liable to removal as an overstayer."
The claimant's application was therefore refused on two bases: obtaining leave to remain in the UK by means of deception, and the previous leave having expired so that he did not meet the requirements at paragraph 60 of the Immigration Rules.
The first issue in summary
The claimant's case is that he had leave to remain until 31 December 2007, and since he made an application before the expiry of his leave his leave continues by reason of section 3C of the Immigration Act 1971. Section 3C provides:
This section applies if-
a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave;
the application for variation is made before the leave expires; and
the leave expires without the application for variation having been decided.
The leave is extended by virtue of this section during any period when-
the application for variation is neither decided nor withdrawn,
an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought against the decision on the application for variation ...
or
an appeal under that section against that decision is pending (within the meaning of section 104 of that Act)."
The defendant disputes this and avers that she acted lawfully in treating the application on 28 December 2007 (dated 27 December 2007) as an invalid application.
The first issue: Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007.
The 2007 Regulations came into force on 2 April 2007 and governed the claimant's case. They provide, so far as material:
"7
The form set out in Schedule 5 is prescribed for an application for limited leave to remain in the United Kingdom;
(a)as a student,
...
for the purposes of the immigration rules."
"16
The following procedures are prescribed in relation to an application for which a form is prescribed by regulations 3 to 14;
...
the application shall be accompanied by such documents and photographs as specified in the form; and
each part of the form shall be completed as specified in the form."
"17
A failure to comply with any of the requirements of regulation 16(1) to any extent will only invalidate an application if:
the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory,
the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, of the failure within 28 days of the date on which the application is made, and
the applicant does not comply with the requirements within a reasonable time, and in any event within 28 days, of being notified by the Secretary of State of the failure."
The material facts on the first issue
The form completed by the claimant on 27 December 2007 is the 04/07 version. In Section 8 on page 11 of the form is the following:
"SECTION 8 - DOCUMENTS AND PHOTOGRAPHS
For your application to be valid and complete, you must provide the documents and photographs listed in this section which are relevant to your application. Tick the boxes next to the relevant items to show the documents and photographs you are providing ..."
Then one of the boxes ticked is the last box and that provides this:
"Evidence of your finances. Documents such as bank statements, building society savings book(s), pay slips or other formal documents as evidence of your ability to meet the costs of your course and to maintain and accommodate your self and any dependants without taking employment or engaging in business, or having recourse to public funds. If a relative or friend is supporting you, please provide a letter from him/her confirming this together with bank statements or other documents of the kind described above as evidence of their financial situation. See Note 4 below.
Note 4: The document showing the finances available to you and/or the person supporting you should cover at least the last 3 months ...".
Within 28 days of the date on which the application was made, ie in compliance with Regulation 17(1)(b), the defendant sent out the letter of 22 January 2008, which I shall now read in a little detail:
"Dear Mr Haq.
Re: Mr Fazal E Haq Pakistan 25 August 1979.
APPLICANT FOR LEAVE TO REMAIN IN THE UNITED KINGDOM
Thank you for your application to remain in the UK. For the reasons set out below, we are returning the application form and documents received from you. Please read this letter carefully to ensure that your application proceeds:
The Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007 prescribe forms which must be used for applications for limited or indefinite leave to remain in the United Kingdom.
The Regulations also prescribe the procedures which must be followed in relation to such applications, as follows:
(a)the form must be signed and dated by the applicant ...
the application must be accompanied by the relevant photographs and documents specified in the form.
Each part of the form must be completed as specified in the form.
Your application for limited leave to remain in the United Kingdom which was posted on 28/12/07 does not comply with the above mentioned requirements for the reason(s) indicated next to the box(es) ticked below."
Ticked below is this box:
"You have not provided all the photographs and documents that are relevant to your application as specified in the Documentary Evidence section of the form. The missing item(s) is/are identified by a red cross to it/them in the relevant part of the form." ...
We are therefore returning your application to you. In order to ensure that your application proceeds, you must return the application using the enclosed return address label. If you do not return your application within 28 days in a manner that complies with all the above-mentioned requirements, the application will be invalidated and the fee (if any) will be refunded. In that event, if you still wish to apply for leave to remain in the United Kingdom, you will have to make a new application. Making a new application at a later date could affect appeal rights, as you will only have a right of appeal against the eventual decision if the application is made before the end of an authorised stay in the United Kingdom ..."
More than 28 days then expired without the claimant, in accordance with Regulation 17(1)(c), complying with those requirements. He did not do so until sending his form, dated 16 March 2008, which was apparently received on 20 March 2008.
Analysis - first issue
I am not aware of any previous relevant decisions on the point based on the 2007 Regulations. On the basis of the opening words of Regulation 17(1):
"a failure to comply with any of the requirements of regulation 16(1) to any extent will only invalidate an application if the 17(1)(a) to (c) criteria are met".
The defendant's case is simply: (1) there was a failure to comply with 16(1)(b); (2) the 17(1)(a) to (c) criteria were met; and (3) therefore the application is invalid.
The claimant's submission is first that the claimant has provided sufficient information and if there were any shortcomings in the documents submitted the defendant should have refused the application (thereby allowing the claimant an appeal right) and not treat it as invalid. In this regard it is pointed out that the claimant's only default was in not providing some relevant bank statements. In the alternative, the claimant submits that the defendant had a discretion to treat the application as valid and she should have exercised it in the claimant's favour.
As to the first point the whole form, including the box containing Note 4, is prescribed in Schedule 5 to the regulations, so is the wording in section 8 of the form that:
"For your application to be valid and complete, you must provide the documents and photographs listed in this section which are relevant to your application. ..."
Therefore, the lack of validity of a form which does not so comply is made clear on the face of the form and Regulation 17(1). It is set out in Regulation 16(1)(b) and the safeguard is in Regulation 17(1), whereby the form will only be validated if the three criteria are met, which they were in the present case. It seems to me that that is the end of the matter on the claimant's first submission. However, I was referred to the decision in Campbell v the Secretary of State for the Home Department [2003] EWHC 261 (Admin). That was a decision of Maurice Kay J, as he then was, dealing with invalidity of an application form, obviously prior to the 2007 Regulations. He said this at paragraphs 11 and 12:
In my judgment, it cannot be said that the application form complied in all respects with the formal requirements imposed by the form itself and with the specifications made clear by the form. Nor, in my judgment, can it properly be said that there was substantial compliance. Moreover, I find that there is no developed doctrine of substantial compliance in this area. Miss Collier relies on the case of Sithole v Secretary of State for the Home Department, a decision of the Immigration Appeal Tribunal notified on 9th August 2000, in which Collins J effectively held that there was no doctrine of substantial compliance in this area and that the requirement in relation to the filling and submitting of forms are very stringent. He reached that decision placing some reliance on the earlier case of The Queen v The Secretary of State for the Home Department ex parte Immigration Law Practitioners Association [1997] IAR 189. He also placed importance on the fact that the Immigration Rules are not purely rules of procedure, they are rules "which are laid down to govern the practice to be followed in the regulation of entry into or stay in the United Kingdom", adding that Rule 32 "is, in our judgment, as clear as it could be.
On behalf of the claimant, Mr Muquit seeks to rely on a passage in Macdonald, Immigration Law and Practice, fifth ed, at paragraph 4.8, referring to "the draconian consequences of non-compliance", and suggesting that the appellate authority should lean in favour of the doctrine of substantial compliance "whenever reasonably possible." That suggestion is unsupported by authority and makes no reference to the case of Sithole. It is, in my judgment, no more than a suggestion."
The claimant seeks to distinguish Campbell on the basis that the relevant form contained a warning that Campbell had not provided substantially more information which would have enabled the defendant to ascertain in to which categories of paragraph 57.1 of the Immigration Rules Mr Campbell fell. In my judgment:
Campbell is not binding on me.
Nevertheless, Maurice Kay J made it clear that there is no doctrine of substantial compliance in this area.
The warning referred to in Campbell was a note to the then form stating:
"We are unlikely to grant your application unless the documents establishing the financial resources available to you cover the last three months."
(Although the warning is not the same on the 2007 form, nevertheless there is a clear warning at the top of page 11, section 8 of the form.)
There is the yet further protection of the three criteria in Regulation 17(1), which have to be met before a form can be treated as invalid.
Regulation 17(1) makes it clear, on its face, that an application will be invalid if there is a failure to comply with any Regulation 16(1) requirement, so long as the three Regulation 17(1) criteria are fulfilled.
In short, even without the case of Campbell, I would have no hesitation in rejecting the claimant's argument on this point. Having regard to Campbell it does, however, strengthen, rather than weaken, the defendant's case.
That leaves on the invalidity form issue the claimant's second point, namely that the defendant has a discretion to treat the form as valid and within time, a discretion which, the claimant submits, should have been exercised in the claimant's favour. The defendant objected to the claimant taking that point contending that permission was expressly refused by Burnett J on 9 October 2008: [2008] EWHC 2654 (Admin) paragraph 10. I ruled earlier that because paragraph 10 links in with paragraph 6 of that decision it does not appear to me that the discretion point now sought to be taken was barred out by Burnett J. The defendant accepts this ruling and further accepts that the claimant can take this discretion point as part of the challenge on the first issue. Finally, the defendant accepts that she does have a discretion.
Against that backdrop the claimant submits that there was very substantial compliance with the form. The claimant relied upon R v Immigration Tribunal, ex parte Jeyeanthan [1999] 3 All ER 231. The defendant relied on the case of Campbell. It seems to me that they do not really assist me on the discretion point.
The claimant also referred me to a case of Sullivan J, as he then was, namely R v (on the application of Forrester) v The Secretary of State for the Home Department [2008] EWHC 2307 (Admin), where the relevant passage is at paragraphs 5 to 7 of the judgment which read:
On 10 September 2007, her application to remain as a spouse was rejected. The sole reason given for the rejection was that although a cheque had been submitted with the application the bank had returned the cheque unpaid, because there were insufficient funds in the claimant's account. Promptly after receiving that refusal, and after the Christmas holiday, the claimant resubmitted the application this time with a cheque that was cleared by the bank. The application was resubmitted on 29 December 2007.
On 4 February 2008, that application was refused. The sole reason given for the refusal was that the application had been made when the applicant's leave to remain had expired. Similar reasons were given in respect of the applicant's daughter. Of course the only reason why leave had expired was because the earlier application, which had been made when leave had not expired, was invalid for the sole reason that the bank had not cleared the cheque.
As was observed by Dobbs J, that decision was in accordance with the rules. The rules make it clear that if the fee does not accompany the application, and/or the cheque that accompanies the application is not subsequently met by the bank, then there is not a valid application. In terms of the rules it can fairly be said that the decision was impeccable. That, of course, is not the end of the matter. The defendant is given a discretion, and she is given a discretion on the basis that it will be exercised with a modicum of intelligence, common sense and humanity. It might be asked, in these circumstances, what possible reason there could have been for not exercising the discretion in this claimant's favour. Certainly it is apparent from the letter of 11 April 2008 that no consideration whatsoever was given to the impact of removing the claimant and her daughter upon their family life, and upon the family life of the claimant's husband."
However, it is important to recognise that the Forrester case proceeded on the basis that there was no second chance. This case would be a very different one if the claimant having defaulted in December 2007 had been the end of the road, but it was not. The claimant was entitled to and was given a second chance with which he did not comply, and to which he did not even respond within the time limits allowed by the regulations. In those circumstances it is just not possible for this court to rule that the Secretary of State acted unreasonably in not exercising the residual discretion in favour of the claimant when his application, dated 16 March 2008, arrived on 20 March 2008. This is notwithstanding the contents of the claimant's covering letter of 16 March 2008, to which I shall now refer:
"I have just received my application yesterday and come to know that you have returned my application for some more information. You have mentioned that not enough passport size pictures were provided. Unfortunately I was unable to send my application with in specified time period as I just received my papers today.
I am sending you back my application after careful inspection. I already have provided my Passport size pictures attached at the front of my application and have provided the source of finance. (Find attached the bank statements and covering letter from my financer.)
I am sending you another application with my original application and have a humble request to consider my original application and grant me leave to remain to complete my remaining studies. You can deduct my fee from the details of credit card provided in the original application."
He then deals with what he is then studying and says:
"Due to busy time schedule for ICAEW exams I was unable to attend some of my classes of my Masters Degree programme. ...
Then he finishes:
"I have a very humble request to pay my application your kind consideration and provide me the opportunity to complete my studies to aspire my dreams."
Finally, the Secretary of State points out that the refusal to allow the application as valid is in conjunction with the finding of deception. If that finding of deception is upheld by this court then that would make the inability of this court to interfere with this discretion even stronger. Nevertheless, even absent the deception finding, the court would not be entitled to interfere. The purpose of the bank statements would be to ensure compliance with paragraphs 57(7) and (8) of the Immigration Rules, which are summarised in short form on Section 8 of the prescribed form itself, where it says that evidence of finances is:
"evidence of your ability to meet the costs of your course and to maintain and accommodate yourself and any dependants without taking employment or engaging in business, or having recourse to public funds."
The claimant says that he complied with these previously and up to the date of the renewal application, and had provided other evidence to meet the purposes. However that might be, I accept the defendant's point: that it is not for the claimant, or even this court, to decide whether the Secretary of State should be content to accept less than the form required, or to accept it well out of time.
Second issue in summary
The second issue requires an answer to the question: did the defendant act reasonably in concluding that the claimant had obtained his previous leave by deception? (Section 10(1)(b) of the 1999 Act.) In fact there are, in essence, two points made by the claimant: one legal and one factual. The legal point is: section 10(1)(b) says "he uses deception in seeking (whether successfully or not) leave to remain". The claimant says this cannot apply where the deception is historical in that the defendant's finding was that the claimant used deception when he submitted his November 2006 application and not in his attempted applications of December 2007 or March 2008.
The factual point is that there was no sufficient evidence of deception by the claimant in November 2006.
The Immigration Rules relevant to the second issue
The relevant paragraphs of the Immigration Rules are paragraphs 6, 57(i) and (ii) and 60, which provide:
In these Rules the following interpretations apply:
...
"a bona fide private education institution" is a private education institution which:
maintains satisfactory records of enrolment and attendance of students, and supplies these to the Border and Immigration Agency when requested;
provides courses which involve a minimum of 15 hours organised daytime study per week;
ensures a suitably qualified tutor is present during the hours of study to offer teaching and instruction to the students;
offers courses leading to qualifications recognised by the appropriate accreditation bodies;
employs suitably qualified staff to provide teaching, guidance and support to the students;
provides adequate accommodation facilities, staffing levels and equipment to support the numbers of students enrolled at the institution; and
if it offers tuition support to external students at degree level, ensures that such students are registered with the UK degree awarding body."
The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:
has been accepted for a course of study, or a period of research, which is to be provided by or undertaken at an organisation which is included on the Register of Education and Training Providers, and is at either;
a publicly funded institution of further or higher education which maintains satisfactory records of enrolment and attendance of students and supplies these to the Board and Immigration Agency when requested; or
a bona fide private education institution; or
an independent fee paying school outside the maintained sector which maintains satisfactory records of enrolment and attendance of students and supplies these to the Border and Immigration Agency when requested; and
is able and intends to follow either:
a recognised full-time degree course or postgraduate studies at a publicly funded institution of further or higher education; or
a period of study and/or research in excess of 6 months at a publicly funded institution of higher education where this forms part of an overseas degree course; or
a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or
a full-time course of study at an independent fee paying school ..."
By paragraph 60 of the Immigration Rules:
"Requirements for an extension of stay as a student
meets the requirements for admission as a student set out in paragraph 57(i) - (viii)"
Second issue: the legal point
I have already summarised the point taken by the claimant. The claimant further submits (i) that the use of the present tense in section 10(1)(b) refers to a current attempt at deception, rather than a past attempt; (ii) prior to the amendment of section 10(1)(b), which amendment came into force on 10 February 2003, the section read: "he has obtained leave to remain by deception." It seems to me that the main purpose of the amendment was not to shift the emphasis from a past deception to a current deception, but rather to catch someone who deceives whether or not his deception led to his obtaining leave: a situation which may well not have been encompassed prior to the amendment.
Further, I adjudge the claimant's point is a bad one. It is axiomatic that at the time of the Secretary of State's decision to rely on section 10(1)(b), the deception will have already taken place. There is nothing in the language of the subsection to restrict it to a current application and, indeed, the subsection simply refers to the fact that the deception may have been successful or not: in the circumstances of the present case, if the Secretary of State was justified in finding that the claimant used deception in the November 2006 application the claimant fell squarely within section 10(1)(i)(b).
The second issue: the factual point
There are on this point a number of sub-issues. First, that the claimant submits that as of November 2006 the defendant accepted that Lloyds College was on the Register of Education and Training Providers. By granting the extension in December 2006 the defendant accepted that Lloyds College was a bona fide private education institution. During the course of the hearing the claimant clarified his submissions to the effect that the fact that Lloyds College was on the register was evidential and gave rise to a presumption that at the time of the claimant's application in November 2006 the college was a bona fide institute. Since he accepted that, if for example, there had been compelling evidence that the college was a sham in November 2006, and that the claimant knew this, and therefore could not possibly have believed that it was bona fide and he could not study there, then the defendant would be entitled to find that he was responsible for a deception. In support of this presumption he relied upon the Immigration Directorate Instructions, chapter 3, section 3, which states:
"Caseworkers should note that the definition of a bona fide private education institution in paragraph 6 of the rules should not be used to refuse an application for leave to remain as a student where adverse information about an institution comes to light during the consideration of an application. As long as the institution appears on the Register of Education and Training providers, the applicant should not be refused leave on the basis that he is not attending a bona fide private education institute."
The defendant denies any presumption and relies upon paragraph 11 of the statement, dated 13 January 2009, from Tom Gammons, a senior case worker for the UK Boarder Agency. In paragraph 11 Mr Gammons says:
"... prior to 1 November 2007, bogus colleges were able to seek to be registered without any pre-regulation checks."
Of course, for an institute to be registered some evidence will have had to be filed, but essentially Mr Gammons is stating that at material time any colleges would have, in effect, self-certified and if, as the defendant alleges in this case, the college was, in essence, a sham and had been prior to November 2006, any inference which might normally be drawn from the mere fact of registration would fall away.
So I come to the key question: did the defendant act reasonably in concluding that the claimant had obtained his previous leave by deception? Two preliminary matters need to be addressed. First there have been some suggestions in the skeleton argument about the possible dispute about the relevant standard of proof. However, it became common ground that the Secretary of State should properly be guided by this statement in paragraph 50.12 of the Operation Enforcement Manual.
"The evidence of deception should be clear and unambiguous in order to initiate action under section 10. Where possible, original documentary evidence, admissions under caution or statements from two or more witnesses should be obtained which substantiate that an offence has been committed before authority is given to initiate action under section 10 of the 1999 Act. The deception must be material - in other words, had the officer known the truth, the leave would not have been given. The evidence must always prove to a high degree of probability that deception had been used to gain the leave, whether or not an admission of deception is made. The onus - as always in such situations - is on the officer making the assertion to prove his case."
Secondly, however, it is not for this court to decide whether there was sufficient evidence to prove the defendant's application in November 2006 was a deception, but rather whether the Secretary of State acted reasonably in deciding that there was. Put another way: was there evidence which was capable of allowing a reasonable person to come to that conclusion?
Mr Nazim's submission is quite simply that the Secretary of State, in the decision letter of 8 April 2008, did not tell the claimant what evidence there was, and that the evidence relied upon by the Secretary of State all goes to the position as of October 2007, and could not, to the requisite standard of proof, be relied on by the Secretary of State to come to a reasonable conclusion that the college was an obvious sham in November 2006. The defendant makes the point that the claimant had the opportunity to respond to the finding of deception, and the decision in April 2008, because he was sent forms IS75 and IS76 at the same time and he did not respond to them.
I do not draw any adverse inference against the claimant, nor do I believe that the Secretary of State should have done so. There is, of course, no evidence that she did. I have to look at the evidence provided by the defendant. First, there is an undated report from Steven Halfpenny, which clearly postdates 2 November 2007 and was relied on in the Secretary of State's grounds for defence to the present claim filed on 20 May 2008. It is relatively short and I believe that I should read it in its entirety.
This report relates to an operation which took place on 4th October 2007. Information had been received that Monteagle College and Lloyds College operated from the above address and that those who ran these establishments were involved in the facilitation of illegal entrants into the United Kingdom posing as bona fide students. A magistrate's warrant was sought from and granted by Uxbridge Magistrates' Court on 3rd December 2007 under Section 28D of the Immigration Act 1971.
Approximately 11.45 hours on 4th October Immigration Officers from the Eaton House Arrest and Criminal Investigation teams arrived at that address. They were accompanied by members of Eaton House Joint Intelligence Unit, seconded Metropolitan Police Officers, HM Revenue and Customs intelligence officers and a representative of the Trading Standards Office. The sixth floor was immediately secured and the operation commenced.
It was immediately apparent that no education was being provided at the establishment. Throughout the operation only one 'student' was encountered and he had simply attended to hand in some letters as requested. The establishment itself comprised of two officers and two classrooms. The classrooms were equipped with approximately 15-20 chairs with foldover desk sections. There was no sign of any IT equipment in either room and it appeared that no instruction had been delivered in the recent past.
In one of the offices information came to light that a third college, Edwards, was being run by the same individuals from the premises. Between both offices and spanning all three colleges evidence was gathered which proved that the three colleges were creating bogus student status for in excess of 650 individuals. Amongst the evidence collected were blank certificates from various universities in the UK, Republic of Ireland and the United States. These were all pre-signed and only awaited the completion of the student details. The certificates indicated that the colleges were affiliated to the various universities. In addition, stamps and embosses from the universities were also discovered which would obviously be added to the certificates before being given/sold to the students for them to then forward to the Home Office as proof of their achievements. Fictitious attendance sheets were found indicating that all students registered had attendance records sufficient to persuade the Home Office that any requested extensions of leave to remain should be granted.
Information was also discovered relating to members of staff who all appeared to be related to the directors of the establishments. Salaries indicated suggested earnings in the region of £45k to £55k for tutors and lecturers. However, as stated earlier, there was no trace of any lectures or tutorials taking place and these papers were handed to our colleagues from HM Revenue and Customs to investigate. All student records were seized and are being individually bagged as evidence at this time. (On the day it would have been impossible to carry out this task and they were therefore sealed in large evidence bags to be transported to the Crime Team offices). It is hoped that there is sufficient evidence that all of the registered students have gained their leave to enter or remain by deception and can be dealt with administratively as such.
Further documentation was found and is still being investigated which suggested that the directors of the colleges were involved in obtaining employment for their 'students' as an added bonus. It may be that some are employed within the security industry.
Two individuals were arrested on the day. The first was a Mr Tariq MAHMOOD, born 07/02/1974 a Pakistani national. He gave false personal details when first encountered but made the error of leaving papers on the desk in front of him bearing his photograph and genuine details. In the interim he made several claims to Immigration Officers with regard to his current situation. He stated that he was employed as an administrator for Edwards College but his term of employment ranged anywhere between 10 days and 3 years. When his true identity was confirmed he was arrested under the Immigration Act with a view to removing him as an overstayer in the UK. However, investigations carried out by members of the Eaton House Crime Team revealed that MAHMOOD had,in 2006, submitted an application for indefinite leave to remain in the UK based on long residence. He had compiled a dossier which seemed to indicate that he had first entered the UK in 1991. Investigation of the documents contained in the dossier revealed that the solicitors' letters had been forged, Home Office letters had been produced for a reference which did not exist and that MAHMOOD'S doctor had provided him with a letter some two years after he had sadly passed away. On 2nd November 2007 at Croydon Crown Court, MAHMOOD pleaded guilty to one charge of seeking to obtain leave to remain by deception. He was sentenced to 9 months imprisonment.
The second individual arrested was also a Pakistani national named Dilshad PATHAN, born 13/12/1968. When initially encountered he also gave a false identity. Checks of Home Office records revealed that no one that of identity existed on record. Evidence was then recovered that linked PATHAN to both Monteagle and Lloyds Colleges, he being the director of the former. In this individual's case a decision was taken to effect an administrative removal on him, his wife and daughter. All three were served papers as persons who had obtained leave to remain in the UK by deception. All three were subsequently removed to Pakistan on 15th October 2007.
To summarise:
No students were encountered despite records existing for in excess of 650.
b)The only members of staff encountered both lacked any credibility.
The false certification and attendance sheets indicated that students had been provided with 'leave to remain kits' for a price.
As no education was being provided, none of the students can be looked upon as other than individuals who have gained leave to enter or remain by deception."
The defendant also relied on witness statements of Christopher Sainsbury, dated 27 August 2008, (prepared in relation to another case) and Tom Gammons, to which I have already referred. The nub of their statements is to be found in Mr Gammons's paragraphs 12 to 18, which I shall now read:
Immigration Officers ("IO") Giachian and Halfpenny carried out and reported on Operation Acarus and, at the request of my team, prepared the report exhibited at TG3, referred to above, for use in evidence."
I interpose that TG3 is Mr Halfpenny's report, which I have just read:
Further to the report being provided to me, IO halfpenny was contacted to ascertain the state of alleged colleges. He has confirmed that it was readily apparent that no education was or could conceivably have been provided at the address, given the state of the premises. The premises purportedly housing not one but three colleges consisted of two small classrooms void of educational or information technology equipment and two small offices. Both offices were occupied and were being used to prepare "student packages" to assist individuals gaining leave to remain/enter by deception by falsifying attendance records, progress reports and forging qualifications attained. At this time, these packages are impounded as evidence in criminal investigations against the heads of the said colleges and as such cannot be exhibited hereto, albeit should the Court require sight of these in the context of these proceedings, enquiries can be made as to obtaining these on a temporary basis. Blank University, certificates, stamps, embosses and falsified attendance records found on the premises also revealed that those purporting to run the Colleges were forging documents to assist individuals gaining full-time employment and working illegally whilst registered as a student.
IO Halfpenny is clear that any reasonable person who entered the premises would be in no doubt that no education was, or could be provided in the accommodation and that it was not a genuine educational establishment. Amongst other courses, the colleges advertised Bachelor of Computer Sciences, Bachelor of Information Technology, Diploma in Information Technology and MSc Management Information despite not having any computer terminals in either of the small classrooms. Furthermore, no tutors were employed at or by any of the alleged colleges. This was confirmed by one of the individuals encountered on the day of the investigation, Dilshad Pathan. Mr Pathan was linked to both Monteagle and Lloyds Colleges, he being the director of the former. On the basis of the evidence found at the address; the state and nature of the accommodation; the lack of educational equipment; and the statement of Mr Pathan (exhibited at TG4), it was evident that none of the educational opportunities advertised could have been provided by any of the three purported colleges and that all records of attendance and qualifications were falsified.
From the documentary evidence of blank certificates, embosses, stamps and attendance sheets, referred to above, that were found at the registered premises, it is clear that all attendance records for Monteagle College, Lloyds College and Edward College were falsified as were all qualifications attained and that there had never been tutors at the college.
Clearly the reason that UKBA provides for the grant of leave, or further leave, to remain in the UK as a student is for a foreign national to obtain a rewarding education and trading expense in the UK amongst others. However, for any individual to obtain such leave by way of registering at an establishment that is devoid of educational equipment, functional classrooms, tutors or teachers, and in which seemingly the sole purpose for existing and only productivity is falsifying results for courses not undertaken, thereby providing a false basis for immigration status, is outright deception."
The claimant's case:
Even if the Claimant did not carry out any enquiries before he enrolled at Lloyds College, he claimed in his November 2006 application to have been enrolled at the college since 20 April 2006, and to have attended regularly. Based on the information gathered from Operation Aracus, any person setting foot in the registered premises of Lloyds College must have known immediately that it was not a genuine learning establishment.
In his application for further leave to remain to study at Lloyds College of 30 November 2006, the Claimant said that he had enrolled for a Masters in Business Administration qualification at Lloyds College, beginning on 20 April 2006 and due to complete in October 2007. He submitted documentation including an enrolment letter, details of purported progress and examination results, and his claimed attendance level had been 87%. As the college was then registered with DIUS, leave to remain was granted by UKBA in good faith.
Evidence found during the enforcement visit showed that this type of qualification had been falsified by the colleges, as had the attendance records seized from the premises. In his statement of October 2007, Mr Pathan also admitted that the college had not been genuine."
I should point out that we have an interview of Mr Pathan exhibited both to Mr Gammons and Mr Sainsbury's statements. That interview does not state that the college had not been genuine. An email from Steven Halfpenny, dated 16 November 2008, contained a transcription of that short interview and comments by Mr Halfpenny. I shall read that email. It is sent to a Mr Paul Jones on 16 February 2008. It reads:
"Paul - I have now located the VRB containing CIO Gaichan's Q and A with the director of the colleges Dilshad PATHAN. The questioning went as follows.
Q. name, date of birth and nationality?
A. Dilshad PATHAN, PAK 13/12/68.
Q. Your position here?
A. Partner at Lloyds and Monteagle.
Q. who else works at Lloyds and Monteagle?
A. Farukh HUSSAIN, partner of firm, Yasir FAROOQUE, partner of firm, Zobi NAWAZISH, admin, Salia RASOOL, admin and that's all.
Q. has anyone else worked for Lloyds or Monteagle in the past six months?
A. No.
Q.Have you ever studied at Lloyds?
A. Yes.
Q. When?
A. I finished this June.
Q. Whilst you were the partner?
A. Yes.
Q. Who is N Khan?
A. No.
Q. How long have you been partner at Lloyds?
A. Since September 2006.
Q. The application made to the Home Office for HMSP visa was supported by N Khan at Lloyds.
A. I don't know.
Q. Do you know N Khan?
A. No.
Q. Why did he sign a letter you sent to HO confirming your certificate was genuine?
A. I don't know.
Q. Did you write that letter?
A. No.
Q. Who did?
A. I don't know.
Q. How much money did you earn from your operations at Lloyds and Monteagle?
A. £40,000 after tax.
Q. That's around £3,000 a month.
Q. Why did you tell the HO in your application that you only earned £1000?
I don't know.
PATHAN signed each answer given to indicate that it was a true record of what he said. Although it does not indicate directly that no tutoring was taking place, you have to ask yourself why the other partners, HUSSAIN and FAROOQUE have not as yet been in touch with the Home Office asking what has happened to their colleges. We have an admission that bogus letters were being signed by a person unknown even to one of the partners. Why would a genuine establishment do that?
With approaching 700 students on their books the two small classrooms were wholly inadequate for the purpose.
Amongst other courses they advertised were Bachelor in Computer Sciences, Bachelor in Information Technology, Diploma in Information Technology, MSc in Management Information System and MSc Computer Networking. Without a single computer terminal in either small classroom these qualifications would be quite difficult to achieve by my reckoning.
I hope this helps although I suspect it is not what you had hoped for.
Regards.
Steve Halfpenny..."
From the information of Mr Halfpenny's initial report was there sufficient evidence for the Secretary of State to infer, to the requisite standard of proof, that the claimant had been guilty of deception in November 2006? I must answer that question in view of the totality of the information contained in that report, and, in particular, as at October 2007: (1), there were two small classrooms; (2) there was no sign of any IT equipment or computer terminal ;(3) the total lack of credibility of those running the college; (4) the three colleges of which Lloyds was one were creating bogus student status and bogus documents for more than 650 individuals; (5) numerous bogus documents including fictitious attendance sheets were found.
It is correct that none of that information expressly goes back to November 2006, or expressly implicates the claimant, and that the claimant says that he left Lloyds College in May 2007. However, it seems to me that such a widespread dishonesty and sham found in October 2007, with no good evidence that any proper teaching had ever taken place at Lloyds College (I discount Mr Pathan's interview in so far as he said he had studied there), was indeed a sufficient basis for the Secretary of State to infer that the evidence was enough to prove deception by the claimant in November 2006. There was sufficient material on which she could reasonably come to the decision she did. It therefore follows that both bases of the claimant's claim fail and the application for judicial review fails also.
MR MANKWELL: The only application by the Secretary of State is for their costs to be subject to detailed assessment, if not agreed.
MR NAZIM: I cannot resist that application in relation to costs, but I would just highlight "to observe that permission was granted". There were some issues, in particular the rights of appeal, and permission was granted and it was expedited for this matter to be listed to determine those issue. If that can be taken into account in the importance of this case, if I could put it that way.
THE DEPUTY JUDGE: You are still not resisting?
MR MANKWELL: I am not in a position to resist at all.
THE DEPUTY JUDGE: Clearly costs follow the event.
MR NAZIM: I just wanted to make an observation in relation to just the nature of the case, if I can put it that way.
THE DEPUTY JUDGE: No one is suggesting it is a wholly improper case to bring. You have leave and issues were raised, which I had to deal with. I am not suggesting they are necessarily all easy either. So the application for judicial review is refused and the claimant pay those costs, to be subject to detailed assessment. I do not have to deal with the third issue in the light of my finding on the first, do I?
MR MANKWELL: My Lord, no.
THE DEPUTY JUDGE: Sorry it was so long. I thought in the light of the evidential challenge I needed to go through it in some detail.