Hammad Tazeem, R (on the application of) v The Secretary of State For The Home Department

This claim is a challenge brought by the Claimant against a decision by the Defendant to cancel his leave to enter the UK.

The claim lists four grounds of challenge which may conveniently be summarised as follows:

Permission to proceed to a substantive hearing was granted by Susie Allegre (sitting as a Deputy High Court Judge) on all four grounds on 17^th January 2023, whereupon the Defendant filed Detailed Grounds of Defence on 23^rd February 2023. Subsequently the Claimant sought permission to amend his Grounds. This was permitted by Order of the Court dated 23^rd March 2023. The Defendant filed amended Detailed Grounds of Defence on 29^th March 2023.

It was on this basis that the case proceeded before me.

The Claimant is a 20 year old student from Pakistan. On 3^rd September 2022 he was granted leave by the Defendant to enter the UK and remain for a course of study at De Montfort University in Leicester. The course was a three-year bachelor’s degree in Business and Management preceded by a one-year foundation course.

Admission by the University to study the course was conditional upon the Claimant demonstrating a sufficient command of English. The Claimant’s case is that he had demonstrated this by providing a results card for his intermediate examination by the AJ and K Board of Intermediate Education in Mirpur, and that prior to registering for the course he also took and passed a test for proficiency in English conducted by the Oxford International Education Group (“OIEG”).

The claim bundle includes a one-page screenshot, apparently from OIEG’s website, which appears to indicate in a drop-down field that the Universities whom OIEG supports include De Montfort University. More relevantly there is also an email dated 1^st July 2022 (obtained subsequently by the Claimant) from a Rochelle Barker of OIEG bearing the subject heading “Hammad, Tazeem 632675” addresses to an email address at Maria Consultancy and copied to "wkwan" at OIEG which advises:

On 8^th September 2022 the Claimant left Pakistan for the UK. He arrived at Heathrow Airport on 9^th September 2022 at around 18:00 hours.

Prior to being permitted to enter the UK the Claimant was interviewed by Ms Richards, one of the Defendant’s Heathrow Border Force desk officers. The interview took place at 21:30 hours on 9^th September and was conducted by Ms Richards with the Claimant alone. Ms Richards has said in a written note that:

Ms Richards’s witness statement goes on to record that she asked the Claimant a question about his intended course of study which he answered in the same way as it was answered on his form. She then asked him a question about his previous course of study which she says he was unable to answer at all.

Ms Richards explains that in light of the Claimant’s apparently poor command of English (despite the fact that his reason for entry was to pursue a course of higher education study) the Claimant was referred for further interviews.

The Claimant was then interviewed again at 23:43 hours on the same day by another of the Defendant’s Border Force officers, Mr Badal. Mr Badal has produced a sworn witness statement in this case. Whilst he does not append any verbatim records of the second and third interviews with the Claimant Mr Badal’s statement indicates that he checked his contemporaneous notes of the interviews before finalising his witness statement. Those hand-written notes are appended to his witness statement.

At this point I note that there is a dispute between the Claimant and Mr Badal as to what happened at the second and third interviews. The Claimant has filed a witness statement in the proceedings in which he gives his own account of the interviews. Where there is a dispute on a material issue of fact between the two witnesses I note it in the summary I give below.

Mr Badal’s account of the second interview includes the following elements:

Mr Badal explains that the results of this second interview gave him cause for concern as to whether the Claimant’s level of proficiency in English was what he had represented it to be. Mr Badal therefore referred his findings and his concerns to a more senior Border Force officer, Mr Brown. In discussions they concluded that the Claimant should be served with notices cancelling his leave to enter and requiring him to return to Pakistan. The relevant notices were drafted by Mr Badal and reviewed by him with Mr Brown.

Having concluded that the Claimant should be refused entry Mr Badal then accompanied the Claimant to an interview room at 02:32 where he commenced a third interview with him. This third interview was more procedural than investigatory and was for the purpose of presenting and explaining to the Claimant the decision to cancel his leave to enter. Mr Badal’s witness statement records the following elements of this third interview:

Following the third interview Mr Badal served the Claimant with Form IS 82 advising that he had been refused entry to the UK. The notice, served pursuant to section 120 of the Nationality, Immigration and Asylum Act 2002, recorded the following:

The contents of the notice and of the “One Stop Warning” which followed the summary of the reasons for making the decision were explained to the Claimant through the Urdu interpreter.

Removal directions were set for 15:05 hours on 10^th September 2022.

Within a few hours on the same day the Claimant instructed solicitors, SAJ Legal. They sent a letter before claim to the Defendant as a result of which the removal directions were cancelled. They also sought disclosure of the notices and interview transcripts from the Defendant’s Border Force officers.

On 12^th September judicial review proceedings were commenced.

On the same day the Claimant’s solicitors received a response to the original request for disclosure from the Defendant’s Border Force officer. This provided a copy of officer Badal’s hand-written notes of the second interview with the Claimant together with copies of all the notices with which the Claimant had been served.

This partial disclosure prompted the Claimant’s solicitors to seek disclosure of additional information and further documents. The further details were provided by email on 16^th September.

On 21^st September the Claimant’s solicitors submitted an application for administrative review of the decision to cancel his leave to enter. On 23^rd September the application was rejected by the Defendant. The rejection notice, sent pursuant to paragraph 34M(4) of the Defendant’s Immigration Rules, gave as the reason for rejection:

Following receipt of the rejection notice the Claimant’s solicitors wrote an email to Border Force requesting further information in these terms:

A pre-action protocol letter was then sent by the Claimant’s solicitors on 26^th September alleging that the waiver of the right to administrative review was invalid because the Claimant had been coerced into signing it. The Defendant provided a response to this pre-action protocol letter on 10^th October.

Amended grounds for judicial review were then served on 18^th October to absorb the ground of claim regarding invalidity of the administrative review waiver form.

As noted above the grounds were amended again with the permission of the Court following receipt of the Defendant’s detailed grounds of resistance.

It is common ground between the parties that the Defendant has a statutory power to turn away those arriving at the borders even if they have been granted leave to enter. This power derives from section 3 of the Immigration Act 1971. Section 3 provides, so far as is material to this case, as follows:

In relation to those arriving in the UK with leave to enter already having been granted Schedule 2 Part 1 to the Immigration Act 1971 also provides at paragraph 2A:

In relation to the power to detain pending a decision on whether or not to cancel or refuse leave to enter paragraph 16 of Schedule 2 to the Immigration Act 1971 provides as follows:

Paragraphs 34M to 34S of the Immigration Rules (made pursuant to the Immigration Act 1971) allow for a person whose leave to enter has been cancelled to apply for an “administrative review” of the cancellation decision.

Appendix AR makes provision for persons to challenge an “eligible decision” on the basis of a “case working error”. “Eligible decisions” include (AR3.2(aa)) a decision on the right of a student to remain in the UK. “Case working errors” include (AR2.11) errors in cancelling leave to enter that is already in existence.

Pursuant to paragraph AR2.8 of the Immigration Rules the Defendant agrees not to take steps to remove a person from the UK whilst an administrative review is pending.

Paragraph AR2.10 of the Immigration Rules provides that:

It is lawful for the Defendant to establish and apply policies setting out her normal approach to immigration decisions (R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245). But policy is not law and it can be departed from (R (Begum) v Secretary of State for the Home Department [2021] AC 765).

The requirements of procedural fairness have to be judged in the context of a particular decision (R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531).

The law governing the power to detain somebody under the Immigration Act 1971 was clarified by the judgment of Woolf J (as he then was) in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704. The key elements of that case were synthesised into four principles – known as the “Hardial Singh principles” – by the Court of Appeal in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, per Dyson LJ (as he then was) at [46]-[47]. The formulation of Dyson LJ in R (I) was approved by the Supreme Court in Lumba.

For the Claimant Mr Gajjar submitted that inadequate notice had been given to the Claimant about the Defendant’s real concerns prior to the decision to cancel his leave and that, as a consequence, he had been deprived of the opportunity to face the allegations made against him.

The IS 82 with which the Claimant was served to cancel his leave to enter summarised the circumstances of the Claimant’s interview, noting the results of the OIEG test but also noting what was said to be the Claimant’s inability to describe details about his degree course and his apparent inability to converse in English. The form continued:

But, submits Mr Gajjar, the Claimant had been given inadequate notice of these allegations of inauthenticity. Nowhere did the Defendant’s Border Force officers articulate this concern in the interviews with the Claimant. He added that the position is akin to that which the Court of Appeal considered in Balajigari v Secretary of State for the Home Department [2019] 1 WLR 4647 where it was held that, faced with an allegation of deception or dishonesty, the proper course for the Secretary of State was to issue the claimants there with a “minded to …” decision to give them due notice of the allegations and a proper opportunity to respond. This is also consistent with the Defendant’s own guidance to its case-workers (“Suitability: false representations, deception, false documents, non-disclosure of relevant facts” of which the then current version was version 2.0 dated 22^nd December 2020).

For the Defendant Mr Irwin emphasised that the starting point must be that the legislation affords wide powers to the Defendant to cancel the leave to enter (see Immigration Act 1971 Schedule 2 Part 1 paragraph 2A(8)) that was previously granted to someone arriving into the UK (paragraph 2A(1)), and that these powers can be exercised by one of the Defendant’s officers (paragraph 2A(2)). The context is therefore important: these are powers capable of being exercised at the moment of arrival and they need to be exercised quickly with little scope for protracted investigation. The notion of procedural fairness – submitted Mr Irwin – should be viewed against that background and common law concepts of fairness cannot frustrate what Parliament intended through the legislation to be an expedited procedure.

Mr Irwin added that the Claimant’s reliance on Balajigari is misplaced because the circumstances of that case were wholly different. They related to the Defendant’s reliance on generic forms of evidence being applied indiscriminately to individual cases. The evidential picture there was much more likely to require a complex and detailed explanation, a review of records, and the likely need for professional input. That is in stark contrast to the facts of this case where an impression of the levels of fluency in English demonstrated by the Claimant were much easier to ascertain.

Having regard to the Defendant’s December 2020 guidance relied upon by the Claimant Mr Irwin submitted that (1) there is no immutable rule that a “minded to …” provisional decision needs to be given in every case; (2) if a suspicion of deception needed to be identified then on the facts it was clearly identified here. Concerns were raised repeatedly with the Claimant in the course of his interview and there is no requirement for them to be put in writing; and (3) even if that point were not accepted it is a compressed process that the Defendant’s officers are required to conduct. There was no reference in the Claimant’s witness statement to the email from Ms Barker at OIEG (which was in any event addressed not to the Claimant but to an agent) despite it being produced only two days after the interview and hence there was nothing to suggest that the Claimant was even aware of it at the time of his interview.

Mr Irwin also placed reliance on a separate set of guidance notes produced by the Defendant - “Students: Border Force guidance” (version 3.0, 26^th April 2022) - which, amongst other things, gives guidance to Border Force officers about the circumstances in which students arriving with leave to enter could have their leave cancelled. He submitted that “Example 3”, which is where “Student arrives and has very limited or no English”, is on all fours with the facts of the current case. No challenge is made by the Claimant to the lawfulness of this guidance and any decision taken by one of the Defendant’s officers on the strength of it would be amenable to challenge only on conventional Wednesbury grounds. Mr Irwin submitted that no such grounds existed here: the clear impression left with the Defendant’s officers was that the Claimant did not have a basic command of English and hence there was more than enough evidence for the Defendant rationally to conclude that there were grounds for cancelling the Claimant’s leave to enter.

At the heart of the Claimant’s complaint is the fact that it was never made clear to him the view later expressed by the Defendant in her IS 82 decision that the Claimant’s English qualifications must not be authentic, and consequently he was never given the opportunity to explain the position.

I accept the submission from Mr Gajjar that from the terms in which the IS 82 notice was written (in particular the extract I have quoted from above) it can only reasonably be understood as alleging deception on the part of the Claimant.

The first encounter between the Claimant and the Defendant’s officers is the interview conducted by Ms Richards. As I have noted above, her witness statement was said to have been prepared after consideration of her contemporaneous note of the interview with the Claimant at 21:30 on 9^th September. That note is one page long. It does not mention the OIEG certificate. It does mention the CAS form issued by the University but nowhere does it assert that the CAS form – still less the OIEG certificate – was inauthentic. I therefore conclude that no question as to the validity of the documentation was put to the Claimant at this first encounter.

The second interview with the Claimant was conducted by Mr Badal. Mr Gajjar submits that the absence of any transcribed record of the interview is telling. If this submission is inviting me to infer that there is something suspicious in the Defendant’s failure to produce a transcribed record then I have no basis for so concluding. There is no transcript available and so none could be produced. In the absence of a transcript the best evidence about what transpired at this interview is provided by a combination of Mr Badal’s witness statement and the manually-completed question and answer form from the interview (on the one hand) and the Claimant’s witness evidence (on the other hand).

In the twenty five questions that followed in this second interview, the Claimant submits, not one of them put to him a concern that the qualifications he had put forward were falsified. Whilst Mr Gajjar accepts that such questions are not required to come at the beginning of the interview they are, he submits, required at some point before a conclusion is reached by the officer conducting the interview. He submits that an explicit allegation is wholly absent.

I agree. Here as close as one gets are:

Mr Gajjar submitted that the fair procedure for the Defendant to adopt in these circumstances was to issue a provisional “minded to …” decision, with reasons, to see whether the Claimant could overcome the concerns harboured by Mr Badal about the quality of the Claimant’s English and, consequently, the authenticity of the third party documentation appearing to verify an ability to speak English up to level B2 on the Common European Framework of Reference for Languages (CEFR).

Mr Gajjar relies on the judgment of the Court of Appeal in Balajigari in support of his submission that the Defendant should have done no more than issue a “minded to …” decision. This, he submits, would have given the Claimant the opportunity to address concerns about the apparent disparity between the level of fluency in English exhibited in his interviews and the level certified by the independent documentation.

Delivering the judgment of the Court in Balajigari, Underhill LJ held as follows (at [221]):

In response Mr Irwin submitted that the facts of Balajigari are very different from the facts in the present case. That much is plain, but it does not follow that the principle enunciated by the Court is any less applicable to the facts of the current case. Indeed in R (Karagul) v Secretary of State for the Home Department [2019] EWHC 3208 (Admin), to which Mr Gajjar also referred, Saini J expressed this view about a similar submission made to him in that case (at [102]):

Saini J went on at [103] to summarise this general public law principle by reference to three propositions, of which I emphasise the first:

As regards the Defendant’s December 2020 guidance document “Suitability: false representations, deception, false documents, non-disclosure of relevant facts” Mr Gajjar noted that the section entitled “Procedural fairness” under paragraph 9.7.3 (“Discretionary cancellation”) includes the following guidance to Border Force officers:

Mr Gajjar placed particular emphasis on the repeated use of the word “must” throughout the extract. This, he said, illustrates the Defendant’s recognition of the requirements deriving from Balajigari (to which reference is made specifically in the same paragraph of the guidance) as refined by the Court of Appeal the previous year.

As I have noted above, for the Defendant Mr Irwin relies instead upon the Defendant’s policy contained in her guidance note “Students: Border Force guidance”. “Example 3” in that guidance relates to “Student [whom] arrives and has very limited or no English” and provides as follows:

Against the guidance relied upon by the Claimant Mr Irwin submits that the recommended procedure for giving a provisional “minded to …” decision is redundant on the facts because there was no explanation that could be proffered for the Claimant. He notes that the only evidence advanced by the Claimant after his leave was revoked and the allegation of deception was made clear in the IS 82 form was the email from Ms Barker which – he submitted – hardly advances the Claimant’s case very far.

Mr Gajjar responded to Mr Irwin’s submission characterising it as “dangerously binary”. Whilst I may not go quite that far, for sure it was a bold submission. It assumes that on the facts there could be no explanation advanced by the Claimant which was capable of displacing the provisional conclusion of the Defendant’s officers that any documentation verifying the Claimant’s ability to speak English to a standard suitable for studying a bachelor’s degree with a foundation course must have been falsified.

The case of R (Wahid) v Entry Clearance Officer [2021] EWCA Civ 346, to which Mr Gajjar also referred, is germane on the facts. In that case it was alleged that Mr Wahid had falsely represented when completing a visa application that he had not been given any police cautions. He had omitted to mention a previous occasion when he had been detained leaving the UK for Pakistan after a blunt butterfly knife on a key-chain had been found in his luggage. That was considered to be a prohibited item and airport security officers had explained that the police needed to be called as a matter of protocol. Mr Wahid was questioned by the police but released without charge. He explained that so far as he was aware no further action had been taken by the police, but later investigation revealed that he had in fact been cautioned by the police for the offence of being in possession of a dangerous item at an airport. Mr Wahid was refused leave to enter as a visitor on the strength of this alleged deception.

In the Upper Tribunal Mr Wahid’s appeal against refusal was dismissed, with the Judge holding:

He appealed this decision to the Court of Appeal. His appeal was allowed. Commenting on the above extract from the judgment of the Upper Tribunal, Carr LJ, giving the leading judgment in the Court of Appeal, held as follows at [31]-[32]:

In the present case there was a tension between what the Defendant’s Border Force officers observed and what the documentation appeared to show. The documentation included:

Of this documentation we know that the Defendant’s officers were aware of at least (a) and (b) before the decision to cancel the Claimant’s leave was taken: (a) was referred to by Ms Richards in the first interview with the Claimant and (b) was referred to by Mr Badal in the second interview with the Claimant. But despite the several questions asked of the Claimant about the latter in his second interview there was, according to my reading of the interview notes, no direct allegation that the Claimant’s English credentials were inauthentic. If it were being alleged that the Claimant had obtained his qualifications by deception then it was not suggested to the Claimant how officers believed this to have occurred, for example by the use of a proxy to sit the English tests on his behalf.

In oral argument Mr Irwin candidly admitted that his case “would be much easier” had there been a direct allegation of deception but, he submits, the necessary inference from the questioning is that the authenticity of the documentation was being disputed.

I do not agree.

It seems to me that where something as important as a decision to cancel leave to enter is being contemplated on the assumption of falsified documentation, procedural fairness requires that a very clear allegation to that effect is put. It is not enough for a passenger to be left to infer that this is the case. The fact that such inference is expected to be discerned second-hand through an interpreter exacerbates the difficulties experienced by a passenger, let alone in circumstances where it is evident that public officials are intervening potentially to rescind permission to enter.

In my judgement the first time the Claimant could reasonably have been alerted to the allegation of deception was when he was served with the IS 82 document. In that document the link between the Claimant’s apparent lack of capability in English and the consequent questioning of authenticity of his documentation was spelled out for the first time. But by then it was too late. The decision had already been taken. The IS 82 document confirmed the terms on which his entry clearance had been cancelled. Self-evidently he no longer had the opportunity to make representations to dissuade officers from their decision.

The Defendant relies in part on the fact that the Claimant sought assistance from an interpreter for the whole of his second and third interviews, and on the fact that the reason he gave for his request was “Because I cannot understand English”. This appears as supplementary reasoning in the IS 82 document:

The Defendant does not rely heavily on the Claimant’s request for an Urdu interpreter as proof of an inability to speak English. That is prudent. It seems to me that the request for an interpreter is not necessarily inconsistent with the Claimant’s case that he could speak English to a suitable level to study in English. When it became apparent after the first interview that there was real jeopardy for the Claimant it is hardly surprising that he elected to conduct the future interviews in his mother tongue rather than in English. He was no doubt anxious to ensure that he did not misunderstand any vital detail and that he was able to get across his point of view very clearly. I also do not find this to be inconsistent with the Claimant’s stated preference on his visa application form to converse in English. In answering that question he may well not have anticipated having to converse in a second language on a matter of critical importance in circumstances of extreme anxiety compounded by fatigue from a long journey.

I stress that this conclusion is not a finding by me that the interviews were conducted in a hostile and over-bearing way, but nor does it need to be. I am also not at all persuaded by the fact that the Claimant could not produce the letter regarding collection of his biometric residence permit and did not appear to know even what it was; I strongly suspect that most people fluent in English would struggle to describe what it was either.

The parties have each relied on two separate guidance documents produced by the Defendant for her entry clearance officers. The correct approach to the application of policy in public law decision-making is as set out by Richards LJ in R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597 at [29(iii)]:

It is noteworthy that the extracts from section 9.7.3 of the December 2020 document relied upon by the Claimant express the need to give a “minded to …” indication mostly in the mandatory terms of “must”.

By contrast the 2022 document upon which the Defendant relies appears to be internally inconsistent. In certain places the guidance points to a discretion in the decision-making officer rather than a mandatory conclusion to be reached; for example:

Only once is the 2022 guidance expressed in mandatory terms:

I consider that this last extract (referring to “must”) can still be reconciled with the previous extracts (referring to “may”) by reading the latter as applying only to situations in which the passenger on presentation at the border cannot converse without an interpreter and there is no other evidence provided which suggests an ability to converse in English. These were not the facts of the present case. The Claimant was in receipt of external certification of his English capabilities.

On this basis the two guidance documents can be read as being consistent with one another. But even if I am wrong about this I prefer the approach of the December 2020 guidance to the approach of the April 2022 guidance because it pays far greater heed to the requirements of Balajigari and it strikes a more satisfactory balance from the requirement to adopt a fair procedure as commended in Doody.

Mr Irwin submitted that neither Balajigari nor Doody gave rise to an immutable principle that a “minded to …” decision must be given in every case. I agree. But on the facts of this case it seems clear to me that such an approach was required in order to meet the basic elements of a fair procedure.

I accept that one does not need to be a linguistic expert to harbour doubts about a passenger’s ability to converse competently in English. But against that impression the documentation available to the Defendant’s officers gave a contrary impression and the Claimant should have been given an opportunity to explain the apparent discrepancy between how he presented himself and what the documentation appeared to verify. The fact that within a very short space of time his solicitors were able to procure the email from Ms Barker apparently supporting the authenticity of the OIEG certification illustrates that given the opportunity the Claimant was able to introduce additional information supporting his account.

Mr Irwin asks the rhetorical question: what more could the Claimant have done to explain the situation had he been given the opportunity? Nobody knows. It may be that given the opportunity it emerges that he can offer no satisfactory explanation after all and that suspicions of false documentation were reinforced rather than dispelled. The same outcome would then be reached. But at this time it is inappropriate to speculate: the Claimant has been deprived of any opportunity for explanation by the procedure adopted by the Defendant, and in my judgment that renders the decision unlawful.

I observe in passing that my conclusion need not be at odds with the architecture of the legislation and the objective of preserving swift decision-making by the Defendant. A provisional “minded to …” decision need not have resulted in wide-ranging enquiry or extensive delay to a final decision, during which time the Defendant enjoys the power to detain the Claimant in any event. The interests of fairness must be balanced against the benefits of swift decision-making. In this case that balance was not properly struck.

Ground 1 therefore succeeds.

Strictly speaking the success of Ground 1 is enough to dispose of the claim in favour of the Claimant but in deference to the written and oral arguments of the parties I go on to consider Grounds 2 to 4.

There is, as Mr Gajjar conceded, a degree of overlap between Grounds 1 and 2. Indeed I see quite some repetition in the way in which both were pleaded and argued by the Claimant.

The only way sensibly to separate Ground 2 from Ground 1 is to consider the rationality of the Defendant’s decision based on the information known to the Defendant at the time rather than also speculating on the additional evidence that would or might have become available to the Defendant following further enquiry after the issue of a “minded to …” decision, for that would be to trespass back into Ground 1.

For the Claimant Mr Gajjar accepted that Ground 2 does not entail a precedent fact review. That must be right. But, he submitted, the substance and quality of the evidence relied upon by the Defendant is wholly lacking such that it was irrational in the Wednesbury sense.

The starting point, Mr Gajjar submits, must be the OIEG certification. This verifies that the Claimant can read, speak, write and listen in English up to level B2 on the CEFR. It has since been supplemented by the email from Ms Barker of Oxford International confirming that she supervised the Claimant undertaking the test. Moreover there is the evidence from the result card of the AJ and K Board attesting to the Claimant’s proficiency in English. By contrast, submits Mr Gajjar, the Defendant’s officers relied mostly on a subjective assessment of the Claimant’s speaking ability (which case-law holds to be inappropriate) but without factoring in the surrounding circumstances such as fatigue from a long journey.

For the Defendant Mr Irwin submits that the Defendant’s decision was not taken solely on the basis of the officers’ impression of the Claimant’s English ability in the interviews. He was also, in Mr Irwin’s submission, unable to relay the basic details of the course he was about to study and unable to describe convincingly what the OIEG test he had taken entailed. As to whether the Claimant’s long journey from Islamabad was likely to affect the lucidity of his answers Mr Irwin points to the question asked of the Claimant at the beginning of the second and third interviews whether he was fit and well to be interviewed, to which on each occasion he had responded “yes”.

Mr Irwin further submitted that the cases relied upon by the Claimant (such as Balajigari and Karagul) in which the Upper Tribunal considered questions of fairness related to its own procedures were not apposite here because, unlike in the Administrative Court, the Upper Tribunal is a forum in which merits-based reviews of decisions take place. He submitted that the proper approach is to conduct an assessment based on Wednesbury rationality. For this submission Mr Irwin relied upon the approach confirmed by Richards LJ in R (Giri) v Secretary of State for the Home Department [2016] WLR 4418 at [19]:

It seems to me that there are two limbs to considering the rationality challenge here: what was said and how it was said.

In relation to what was said the Defendant emphasises that the Claimant was unable to offer a convincing explanation of what the course he was about to embark upon would entail. For example he gave these answers to questions in the second interview:

Whilst Mr Gajjar submits that the questions in the extract above were unfair in that they all involved “abstract concepts”, even so one would have expected something more concrete from the Claimant than the very superficial answers he gave. The responses from the Claimant do not reveal any apparent understanding of what the key elements of the course – business and management – actually are. It is fair to observe that the main tenets of each will probably be learned on the one-year foundation course but the apparent lack of insight by the Claimant about the course he was about to embark upon for four years gives rise to reasonable concerns.

In relation to how the Claimant gave his answers, as I have noted above the Defendant has published guidance for its Border Force officers - “Students: Border Force guidance” (version 3.0, 26^th April 2022). Within “Example 3” (to which I have referred in connection with Ground 1) is the following guidance:

Mr Gajjar referred to the case of SM and Qadir v Secretary of State for the Home Department [2017] 3 All ER in which both the parties to the litigation and the Court of Appeal all accepted that the evidential burden of proving deception to secure entry clearance lay with the Secretary of State. Mr Gajjar submitted that the burden has not been discharged in this case. He also relied on the dicta of McCloskey J in the Upper Tribunal decision in SM and Qadir [2016] UKUT 00229 at [80], undisturbed by the Court of Appeal’s subsequent judgment, about the dangers of Judges relying on their own impressions of fluency in the English language:

Having regard to all the evidence available to the Defendant’s officers it seems to me that the conclusion they arrived at in this case was one that they were rationally able to reach. The lucidity of the Claimant’s answers about the contents of his course gave some cause for concern even if one accepts – as I am prepared to do - that the questions asked were abstract and generic. This lack of lucidity is not explained by the anxiety naturally experienced by a young passenger encountering Border Force officers asking him questions which may undermine his leave to enter the UK for study. It is also not explained by fatigue experienced after a long journey, especially given the observations of Mr Badal that the Claimant appeared to be “alert and responsive” during his interview and the Claimant’s answer to the first question in the interview that he was “fit and well”.

As to the dangers of decision-makers relying on their own impression of English fluency this was not a case involving fine margins. The gulf between what the Claimant exhibited as his proficiency in English compared with what the documentation appeared to show was great. His CAS and OIEG documentation suggested a proficiency equivalent to CEFR level B2 and yet the Claimant appeared barely able to converse in English at all. Mr Gajjar complains that the Defendant has declined to provide details of the education or training of the Border Force officers whom the Claimant encountered – with the obvious inference that they lacked the expertise to form a reliable judgement about English fluency – but in this case I do not consider that any special training is needed for officers to be able to recognise someone who can barely converse in the language.

Mr Gajjar also relied upon the decision of the Upper Tribunal in DK and RK v Secretary of State for the Home Department [2022] UKUT 00112. DK and RK arose out of an investigation into widespread cheating to obtain English qualifications in support of applications for leave to enter. In that case the Upper Tribunal was persuaded of the claimants’ deception by evidence derived from expert technical analysis including voice recognition software. It is, he submits, “inconceivable” that the Court in DK and RK and in SM and Qadir would have reached the same views regarding deception without this technical evidence. That may be so, but it is a non sequitur to therefore submit that the absence of such technical evidence in this case undermines the conclusion reached by the Defendant through her officers. Neither DK and RK nor SM and Qadir are authority for the proposition that voice recognition software must always be available before a finding about deception can be made. In this case we do not even know whether the Defendant’s case was that the Claimant’s deception came in the form of putting forward a proxy to sit the English tests for him because the allegation was never put to the Claimant and he never had the opportunity to answer it. I find the two cases relied upon by Mr Gajjar to be of no probative value in assessing the facts in this case beyond the general propositions I have extracted from SM and Qadir above.

The correct approach to viewing the substance of the Defendant’s decision here is to apply ordinary public law principles. Viewed through that lens I do not consider that the decision arrived at by the Defendant based on the evidence then available to her officers was irrational.

Ground 2 therefore fails.

For the Claimant Mr Gajjar accepts that the form waiving the ability to request administrative review had been signed by the Claimant. But, he submits, that waiver should not be capable of being relied upon because it had been coerced from the Claimant. He relies on the Claimant’s witness statement as showing that the coercion in this instance arises out of a combination of the hostile circumstances in which the Claimant was held and taken to interview, the strong discouragement to apply for an administrative review said to have been offered by Mr Badal, and the fact that the waiver form had been pre-populated by Mr Badal with the Claimant then being asked simply to sign where indicated by an ‘x’ on the form.

Mr Gajjar acknowledges that there is a fundamental factual dispute between the account given of the interview by the Claimant and that given by Mr Badal in their respective witness statements. There is, as I have noted above, no contemporaneous transcript of any of the interviews. But, Mr Gajjar adds, the circumstantial evidence also points to coercion because the Claimant elected to instruct solicitors very soon after signing the form and this is wholly inconsistent with the Claimant having made an informed decision to waive his rights to a review.

For the Defendant Mr Irwin submits that the evidence from Mr Badal makes clear that the Claimant was in no way pressurised into signing the waiver form and that the Claimant has not put forward cogent evidence to gainsay this assertion on behalf of the Defendant. He added that this ground is properly to be viewed on a Wednesbury basis, namely that the Claimant must establish that it was irrational for the Defendant to rely on the waiver form, and that the Claimant does not demonstrate this.

On the face of the documents it is clear that there was a waiver of the right to a review. If the Claimant seeks to go behind the documents to show that the waiver cannot be relied upon because it was coerced from him then it is trite law that the burden of proving that must lie with him. (I note that the Claimant appears to use the terms “coercion” and “duress” interchangeably in his written case. I take him to be referring to the same thing).

In my judgement the Claimant does not come close to discharging the burden that lies with him.

There is no transcript of the interviews available in this case. It is not suggested that there is a transcript in existence which the Defendant has withheld. Mr Gajjar submits that the availability of a transcript is important to ensure that interviews are conducted fairly. In support of this contention he relies upon decisions of the Upper Tribunal in Miah [2014] UKUT 515 and R (Anjum) v Entry Clearance Office, Islamabad [2017] UKUT 406.

Anjum was a case in which there was no audio recording of an interview that the Defendant’s officer had transcribed and produced as a verbatim written note. At [21] of his judgment in the case McCloskey J cited with approval the dicta of Latham LJ in R (Dirshe) v Secretary of State for the Home Department [2005] EWCA Civ 421 at [14]:

The context for those comments is important, however. Dirshe was a case in which the Secretary of State had available to him what purported to be a verbatim note of evidence given by the claimant and where the claimant had asked for, but been refused, permission to tape record the interview. In those circumstances the Court was willing to hold that the absence of an audio recording amounted to unfairness because the claimant was deprived of the opportunity to verify the accuracy of the verbatim note taken by the defendant’s officer. Latham LJ added at [17]-[19]:

The circumstances of the present case are different. Here there was no purported verbatim transcript being relied upon without access to a contemporaneous audio recording from which to verify its accuracy. I do not read any of the cases relied upon by Mr Gajjar as authority for the proposition that procedural fairness always requires that an interview must be recorded and transcribed. Nor was there any submission made to me that any of the Defendant’s policies presumed that evidence at an interview would be recorded.

In this case the hand-written notes produced by Mr Badal as part of his witness evidence are self-evidently not purporting to be a verbatim transcript of the second interview. No notes are presented at all for the third interview in which the IS 82 was presented to the Claimant, its terms were explained, and (on the undisputed evidence of both parties) the Claimant signed a waiver of his rights to seek administrative review of the cancellation decision. The Court is therefore left having to weigh the competing evidence as best it can based on what is written and on its inherent plausibility, and with the starting point being that the Claimant bears the burden of proving coercion.

I am satisfied that Mr Badal’s account is to be preferred. I say so for the following reasons:

It follows that the Claimant has not discharged the burden of proof that his signature of the administrative review waiver form was coerced.

For the above reasons I do not accept that the Defendant was required to go behind the clear waiver form signed by the Claimant. I see no grounds for disregarding it on the basis of procedural unfairness and no basis for concluding that a reliance on it was Wednesbury irrational on the facts. For these reasons it was therefore entirely lawful for the Defendant to take the signed waiver form at face value and to decline to entertain the subsequent request for an administrative review.

Ground 3 therefore fails.

Mr Gajjar submitted that if the Court accepted either of his grounds 1 and 2, and thereby ruled that the decision to cancel his leave was unlawful, it followed necessarily that the Claimant’s detention between 9^th and 10^th September was unlawful.

Mr Gajjar further submitted that the detention of the Claimant could not be justified under the Defendant’s policy on immigration detention. The policy upon which he relied was Chapter 55 of the Defendant’s “Enforcement Instructions and Guidance”, in particular the following parts:

Finally Mr Gajjar submitted that a consequence of the Claimant’s unlawful detention is that he may lose his right to enrol at De Montfort University (in which case he will make a claim for damages) and that the conditions of his bail mean that he is unable to access medical care.

For the Defendant Mr Irwin submitted, firstly, that if neither of grounds 1 and 2 are allowed then the claim of unlawful detention also falls away. Detention is permissible under paragraph 16 of Schedule 2 to the Immigration Act 1971 subject to it complying with the Hardial Singh principles. But in the alternative he submitted that even if the cancellation of leave were found to be unlawful it did not follow that the detention was therefore unlawful. The Defendant enjoys the power to detain for the purposes of examination and this is the power that she exercised.

In allowing Ground 1 I have found that the decision to cancel the Claimant’s leave to enter was unlawful. Mr Irwin’s primary submission does not therefore fall to be considered. However his alternative submission would apply whether or not the decision to cancel the Claimant’s leave were lawful.

In most cases involving claims of unlawful detention the detention in question runs to several months. In this case it was, at most, 20 hours (being the total period of detention from the first interview by Ms Richards to the Claimant’s release). In oral argument Mr Gajjar conceded that I may prefer to rule that the period of unlawful detention only began when the final interview concluded at around 03:15 on 10^th September, in which case the period of detention would be considerably shorter even than 20 hours.

I do not consider that the Claimant’s detention – if such a short period can properly be termed that – was unlawful. Up until shortly before the beginning of the third interview the Defendant was assessing the evidence against the Claimant and reaching a view as to whether his leave to enter should be cancelled. Mr Badal was consulting with Mr Brown. All of this is a necessary part of the due process in reaching a decision whether to cancel the Claimant’s leave to enter.

Paragraph 16 of Schedule 2 to the Immigration Act 1971 confers on the Defendant a power to detain pending the completion of an examination into a passenger’s circumstances, in particular whether grounds exist for refusing or cancelling leave to enter. It is pursuant to those powers that the Claimant was detained.

The power of detention is not unconstrained. It is subject to, amongst other things, the four principles in Hardial Singh. But I see nothing in the circumstances of this case which render the Claimant’s detention unlawful according to such principles. Ground 4 therefore fails.

For completeness I observe that the Claimant’s possible claim for damages resulting from his unlawful detention includes prospective damages should he be charged by the University for being unable to commence his course. Reference is also made to the Claimant being unable to access medical assistance owing to the conditions on his immigration bail, albeit a damages claim is not particularised for this. No further details are provided about either potential head of damages. But in any event it seems to me as though any such damages would flow not from the Claimant’s detention so such as from the decision to cancel his leave. That is not the case that has been pleaded and so it is not for me to answer it, but if a claim can properly be made for such damages then I do not consider it to be precluded by the decision that I have reached here.

It follows that for the reasons I have given above Ground 1 of this claim succeeds and Grounds 2, 3 and 4 fail.

I will now invite the parties to make submissions about appropriate relief.