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

INTRODUCTION

The claimant challenges the defendant’s decision dated 10 September 2013 to remove him from the United Kingdom. He also challenges the legality of his actual removal to Pakistan on 1 October 2013, seeking a declaration that it was unlawful. He also seeks an order quashing his removal and for his mandatory return to the United Kingdom and/or damages.

OUTLINE CHRONOLOGY

The claimant is a national of Pakistan, born on 1 January 1989. On 2 August 2011 he arrived in the United Kingdom on a Tier 4 student visa, valid until 24 August 2014. One of the conditions of that visa was that he was not to work. On 10 September 2013 he was stopped by immigration officials, and it was alleged that he was working in breach of the conditions of his visa. He was detained. On 13 September 2013 his solicitors wrote to the defendant, a letter of protest headed ‘Human Rights Representation and Request for Temporary Admission’. It is agreed that that was a bare application under Article 8.

On 26 September 2013 removal directions were set for the claimant’s removal to Pakistan on 1 October 2013. It does not appear that those directions were sent to the claimant or his solicitors. On 30 September 2013 the claimant’s solicitor sent the defendant a pre-action letter. Although the defendant indicated that the claimant would not be removed, on 1 October 2013 he was removed to Pakistan.

On 7 October 2013, the defendant responded to the pre-action letter. Thereafter nothing more happened until 18 October, when there was a further pre-action letter from the claimant’s solicitor.

On 22 October 2013, this claim for judicial review was filed with the Administrative Court. The following day, the defendant belatedly responded to the claimant’s Article 8 claim. She refused it and certified it as unfounded.

PROCEDURAL HISTORY

The claim for interim relief, namely that the defendant’s decision to remove the claimant be quashed, and that the defendant return the claimant to the United Kingdom as soon as practicably possible, was refused by Carr J on 22 October 2013. In giving her reasons, she said:

“The claimant was removed to Pakistan on 1 October 2013. There is no adequate explanation as to why it has taken three weeks for this application to be made. I note that the claimant gave instructions for the claim to be made on 2 October 2013. In all the circumstances, whilst taking on board the start date of 28 October 2103 for the claimant’s next course of study, I am not prepared to grant mandatory relief sought on an immediate basis.”

The application for permission to bring judicial review proceedings was considered by Ms Geraldine Clarke, sitting as a Deputy High Court Judge, on 31 October 2013. Although she gave permission, she too refused interim relief and seemed to suggest that the ground on which she granted permission, namely the failure to consider the unparticularised Article 8 claim, was a technical matter rather than something more substantive. She said:

“You have an arguable case that you were unlawfully removed from the UK. The Secretary of State admits that your un-particularised Article 8 claim ought to have been considered before you were removed. However I am refusing the interim relief sought because as a Tier 4 student who enter the United Kingdom on 2 August 2011 and has failed to particularise your Article 8 rights in your claim for judicial review, it is unlikely that that claim would have succeeded.”

THE STATUTORY FRAMEWORK

The relevant statutory provisions are set out below.

The relevant guidance as to breaches of condition is set out at chapter 50.6 of the defendant’s Operation Enforcement Manual. It provides:

“Section 10(1)(a) Working in breach.

A person is liable to administrative removal under section 10 if found to be working in breach of a restriction or prohibition on employment. The breach must be of sufficient gravity to warrant such action.

There must be firm and recent evidence (within six months) of working in breach including one of the following:

•

An admission under caution by the offender of working in breach;

•

A statement by the employer implicating the suspect;

•

Documentary evidence such as payslips, the offender’s details on the pay roll, NI records, tax records, P45;

•

Sight by the Immigration Officer, or by a police officer who gives a statement to that effect, of the offender working, preferably on two or more separate occasions, or on one occasion over an extended period, or of wearing the employer’s uniform. In practice this should generally be backed up by other evidence…”

THE RELEVANT FACTS

To the extent relevant to the application, I summarise the relevant facts in the next four paragraphs. I say at the outset that the facts are the subject of a number of subsequent witness statements, many of which have been provided only shortly before this hearing.

On 10 September 2013 the claimant was stopped by Steven Smith, a warranted Enforcement Immigration Officer, in Crawley in Sussex. Mr Smith was in company with his colleague, Immigration Officer Mark Weston. Mr Smith said that the claimant was getting off a scooter. He was wearing a high visibility top with leaflet distribution logos on the rear of the top. The scooter had a rear box on the back and there was what was later identified as an empty food takeaway delivery bag inside. Mr Smith asked the claimant a number of questions. The claimant said he was not working and was “just on a placement”. The claimant agreed that he did not have a work placement letter and that the placement was not arranged through his college, but online. When asked why he had a food takeaway bag in the box on his scooter, the claimant said “I am just training now”.

Further information obtained from the college demonstrated that the claimant did not have a work placement letter because the college did not issue such letters. Furthermore the college put the claimant’s attendance record at 56%. The address that the claimant gave to Mr Smith, on Warren Drive in Crawley, was visited; however the occupier said that the claimant no longer lived there. It therefore appeared that the claimant gave Mr Smith a false address.

Mr Smith’s evidence, which I have summarised above, was later confirmed in large part by Mr Weston, although it is fair to say his separate statement was not provided at the time of the events in September. In addition, Mr Smith’s evidence, and in particular what he says about his conversation with the claimant, were summarised in contemporaneous notes made at the time.

There was no challenge to the basic facts, which I have summarised above, prior to the claimant’s removal. In a written statement served much more recently, the claimant has said that the restaurant was owned by his uncle and that he lived above the restaurant for free. He said that the bike was his own and he had bought it to go travelling around the United Kingdom. He denied that there was a logo on the back of the jacket. He denied saying that he had a work placement and denied saying that he was training. He denied that there was an empty food container in the scooter box. He said his attendance at college was around 70-75%. In addition, the owner of the restaurant described the claimant as his “distant nephew” and denied that he had worked for him.

The decision to serve the documents identifying the breach and the claimant liability for removal, was taken by Chief Immigration Officer Iveson. There are essentially three documents that evidence the decision-making process.

THE THRESHOLD POINT

On behalf of the defendant, Ms Olley raises a threshold point, namely that by reference to the decision of the Court of Appeal in Secretary of State for the Home Department v R(Lim) [2007] EWCA Civ 733, the court should not even entertain this application for judicial review because of the availability to the claimant of an out-of-country right of appeal in relation to his removal. In that case, which was dealing with a similar situation to this one, Sedley LJ said:

“9.

The appeal therefore turns on the propriety of using judicial review to challenge the factual basis of a removal direction against which an out-of-country appeal lies to the AIT. We are no longer concerned with that aspect of the judgment below which addressed – and rejected - the argument that the court's only concern was with the rationality of the immigration officer's decision. The precedent fact which would have to be established in this case, by virtue of s.10(1), is that, having only a limited leave to remain, Mr Lim did not observe the condition which was attached to it…

13.

It is well established, as the judge reminded himself, that judicial review is a remedy of last resort, so that where a suitable statutory appeal is available the court will exercise its discretion in all but exceptional cases by declining to entertain an application for judicial review: see R v IRC ex parte Preston[1985] AC 835, R v Chief Constable of the Merseyside Police, ex parte Calveley [1986] 1 QB 424, R v Home Secretary, ex p Swati [1986] 1 WLR 477, R (Sivasubramanian) v Wandsworth County Court [2003] 2 WLR 475. The judge took the view that this case was exceptional. He adopted the ground, which Mr Kovats submits can be the only relevant ground in a case like this one, that the immigration appeals system was not equipped to address the particular features of the case. The judge held that “the alternative remedy does not provide fair, adequate or proportionate protection”.

14.

Mr Kovats submits that there is no proper foundation for such a finding. The rules permit an out-of-country appellant to be represented before the AIT, to cross-examine the immigration officers and to give his own evidence by videolink. The AIT's statistics show that the differential between successful in-country and out-of-country appeals is not great: 18% in the former case, 14% in the latter. The undoubted hardship of meanwhile losing one's job, income and home is an inevitable incident of the system laid down by statute and, while distressing, on no view unusual. Neither aspect of the case makes it exceptional.”

The Court of Appeal thus allowed the appeal against the judge’s decision to grant judicial review because, despite the fact that the Secretary of State for the Home Department had been guilty of what was described as ‘a colossal over reaction to a minor breach’ (the claimant in that case was permitted to work in one place only and was working somewhere else, although doing similar work) Sedley LJ said “This was precisely the kind of issue for which the legislation, for better or for worse, prescribed an out-of-country appeal”.

Ms Naik sought to distinguish the claimant’s case here on the basis that this was an exceptional case. In support of that, she relied on the following:

Ms Olley said that, while she did not quibble on the facts with either (a) or (b), they did not mean that this case was exceptional. She said that, as Lim made plain, the test of exceptionality went only to whether or not the alternative remedy provided “fair, adequate or proportionate protection” She argued that there was no suggestion in this case that the claimants out-of-country right of appeal was not a sufficient remedy, and that therefore the claim should be dismissed outright.

Having considered the point carefully, I have concluded that Ms Olley’s submissions are correct. This was a case where, notwithstanding the failures by the defendant (which I address in greater detail below), there was nothing that was exceptional on the basis explained in Lim. This was not a case in which the claimant’s rights under his out-of-country appeal were any different to the rights that he has in-country. The same result as in Lim must therefore follow.

Even if I was wrong about that, and the matters raised by Ms Naik were relevant to the issue of exceptionality, I do not accept that, in the round, they amount to an exceptional case. The failure to deal with the Article 8 claim, although an error, was, at least in part, understandable, given the way in which it was not addressed in detail in the claimant’s solicitors’ letter of 13 September, and indeed in the subsequent judicial review proceedings. Moreover, when it was considered in detail by the defendant, it was properly certified as being unfounded. Accordingly, on the merits, there does not seem to be any Article 8 point at all which, as I have already said, was a point made by the learned Deputy Judge when she gave permission. Because the Article 8 claim was certified as being unfounded, the claimant has in any event the right to appeal that decision out-of-country. Accordingly, that is not a ground for exceptionality.

As to the failures in connection with the way in which the removal was undertaken, they are accepted as a matter of fact. It seems to me that they do give rise to a separate claim by the claimant and potentially separate remedies. I deal with that later in this judgment. But they do not, so it seems to me, amount to exceptional circumstances to justify the underlying judicial review.

Finally, as to the alleged failure by the defendant to provide information, as I hope I made plain in argument, I do not accept that the defendant is obliged to provide, in short order, all the information sought by a person in the claimant’s position. Any request and any response must be proportionate. In any event, it does not seem to me that the failure to provide all the information sought could possibly justify a finding of exceptionality.

Accordingly, whichever approach is right, I decline to entertain these judicial review proceedings because the claimant has an alternative, and more appropriate, remedy elsewhere. The claim is refused on that basis. However, since I heard clear argument and reached a firm conclusion on the detail, it seems to me that I should address, at least briefly, the merits of the judicial review claim just in case I am wrong on the threshold argument.

THE PRINCIPAL JUDICIAL REVIEW CLAIM

The principal judicial review claim involves two elements: first, that the defendant’s decision on the facts, to the effect that the claimant was working when he was apprehended, was irrational because there was no evidence of working; and secondly, that there was no evidence that the defendant exercised the discretion required under Section 10 and under paragraph 50.6 of the relevant policy.

I do not accept the suggestion that it was irrational to conclude that, on the evidence, the claimant was working. It seems to me there was a considerable amount of evidence which suggested just that. Although Miss Naik very fairly made a number of points which demonstrated inconsistencies and discrepancies between the accounts of the various witnesses relied on by the defendant, she could not avoid what I regard as the critical difficulty for the claimant. Everything he said about placement and training, which was recorded in contemporary notes, presupposed that he was working, and what he was doing was seeking to explain why. His own comments were enough to warrant a finding of breach.

In addition, for what it is worth, it seems to me that there are real difficulties with the claimant’s belated explanations and answers to the strong evidence against him. First, they were not provided at the time. When asked to give an explanation, the claimant refused to accept that he was working in breach of his visa and told Mr Smith that he would have to prove the contrary. In the circumstances, that bullish approach was misplaced.

Secondly, his statement now has to suggest that, months after the event, both Mr Smith and Mr Weston are lying in their accounts, and that the college was also wrong as to his attendance record. There is nothing to support such an approach. Thirdly, the statements of the officers were taken from and supported by contemporaneous notes which Mr Smith made at the time. There is no reason to doubt their accuracy. Fourthly, the claimant does not even deal with the provision of the false address.

Thus, on the balance of probabilities, and to the extent that it is relevant, I would conclude that the evidence demonstrates that the claimant was indeed working in breach of his visa. That therefore deals with the first element of the judicial review claim. I should add that I agree with Miss Olley that the detailed disputes which now appear to arise on the evidence demonstrate why this is a case better dealt with in the out-of-country appeal, rather than in judicial review proceedings.

As to discretion, which was Ground 3 of the original grounds for judicial review, it initially seemed to me that Miss Naik was on stronger ground. On the face of the documents set out at paragraph 15 above, it might be said that Miss Iveson simply decided that, because there was a breach, the claimant should be removed, without considering the issue of discretion and the ‘significant gravity’ point. However, on a fuller analysis of all the material, I accept Miss Olley’s submission that, merely because the documents do not include what she called “the soul-searching and the hand-wringing” necessitated by any exercise of discretion, that does not mean that it did not happen. As she pointed out, all of the contemporaneous documents to which I have referred at paragraph 15 above made plain that the decision was reached on a consideration of all the available facts, which expressly included the potential prejudice to the claimant. I therefore find that there was a proper exercise of discretion.

Moreover, for what it is worth, it seems to me that the clear breach of the condition of leave, the quasi-admissions to that effect, the claimant’s attitude when he was stopped, the false address, and the poor attendance at college, all justify the conclusion that the defendant acted properly when exercising her discretion against the claimant. For those reasons, it seems to me that, even if it was appropriate to deal with the judicial review claim, it would have failed.

THE OTHER GROUNDS FOR JUDICIAL REVIEW

By reference to the original grounds for judicial review I make the following points. Ground 1 was that there was no immigration decision served on the claimant. That is wrong. The principal immigration decision of 10 September was served on the claimant, and that set in train the removal. That I think also deals with Ground 2, namely the alleged failure to give the claimant notice of any immigration decision. Notice was given and it was that which generated the letter from the claimant’s solicitor of 13 September.

Although not a separate ground, it is right that the claimant and his representatives were not given notice of his removal. This error was compounded by the apparent confirmation the day before removal, on 30 September 2013, that the claimant would not be removed. Would such notification have made any difference? In my judgment, considering all the circumstances of this case, it would not have done. The basis of the claimant’s removal had been established. He was on notice that he was liable to be removed and in those circumstances, it does not seem to me that that point goes any further.

Ground 4 was a complaint of unlawful detention to the extent that it suggested that the defendant had no right to detain the claimant prior to removal. That is plainly wrong: see paragraph 16(2) of Schedule 2 of the Immigration Act 1971. Detention has to be lawfully exercised in accordance with the principles set out in R (I) v Home Secretary [2002] EWCA Civ 888. The defendant complied because she intended to deport the claimant, and detained him for that purpose; he was detained for less than three weeks which is a reasonable period in all the circumstances; and the defendant acted with reasonable diligence in expedition to effect removal.

THE ARTICLE 8 CLAIM

I have dealt with this in brief above, although in a different context. I am in no doubt that there is nothing in the Article 8 claim and that the defendant was right to certify it as unfounded.

There is no material from the claimant to indicate that the decision failed to take into account some element of the claimant’s private life which was relevant to his Article 8 claim. Indeed there is no real substantive criticism of the decision at all. As I have said, it can be dealt with at the out-of-country appeal.

Accordingly, having considered the detail, I agree with the Deputy Judge’s view in her order of 31 October 2013 that “it is unlikely that the Article 8 claim would have succeeded”; indeed, in my judgment, it plainly would have failed.

THE UNLAWFUL NATURE OF THE DECISION TO REMOVE

Although, for the reasons that I have given, it does not affect the judicial review proceedings as such, I am of the view that the failure to notify the claimant of his removal, and indeed the representation that he would not be removed, together with the rather more technical failure to consider the bare Article 8 claim, do render the removal unlawful.

In the exercise of my discretion I do not quash the decision and I do not order the claimant’s return. Again, those decisions are based on the reasoning set out already. However, it does seem to me that the claimant is entitled to damages in consequence of the illegality of removal. Although at one stage during the argument, I indicated a willingness to consider the question of damages, neither counsel was properly instructed in relation to that element of the case. It is therefore going to be something which, if it cannot be agreed, will have to come back.

However, I would set out my own preliminary views on the question of damages as follows. I do not consider, on the material before me, that I could conclude that damages should be nominal only. At the other end of the scale, I have helpfully been referred to the decision in Shaw v Secretary of State for the Home Department [2013] EWHC 42 (Admin) where damages of £2,000 were awarded. I can see an argument that that may be too high on the facts of this case. But it may well be that the right figure in this case is somewhere between a nominal damages figure and the £2,000. Although that would ultimately be a matter for the judge on another occasion, I would fervently hope that the question on damages can be agreed.

CONCLUSIONS

Accordingly, for the reasons that I have given, this application for judicial review is refused. I do however declare that the decision to remove the claimant was unlawful. I do not quash the decision. I do not order the return of the defendant for the reasons given. I do find that the claimant is entitled to damages to be assessed if not agreed.