Hussain, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1220 (Admin)

Case CO/2211/2009[2010] EWHC 1220 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 12 May 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE IRWIN
Between
THE QUEEN ON THE APPLICATION OF YASIR HUSSAINClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR ZANE MALIK (instructed by MLC Solicitors) appeared for ClaimantMS JULIE ANDERSON (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE IRWIN: In this case the claimant entered the UK as a student with entry clearance valid from August 2004 to October 2005, entering the country on 16 September 2004. On 11 October 2005 he was granted leave to remain as a student until December 2006. Subsequently in February 2007 he was granted further leave to remain until February 2008. On 27 February 2008 he was granted leave to remain until 28 February 2009. On 26 August 2008 he applied for leave to remain under tier 1, general. That application was refused in September of 2008, and subsequently he applied for leave to remain under tier 1, post study work in an application dated 30 October 2008.[2]That application of 30 October 2008 is at the heart of this case. The witness statement provided in the case from Val Hickey of the United Kingdom Border Agency deals with the facts relevant to the case from that point onwards. In paragraph 10 and the ensuing paragraphs of the witness statement, Ms Hickey sets out the following facts: the claimant's application having been made on 30 October 2008, on the following day, 31 October, an instruction was issued to all post study work tier 1 case workers to put on hold applications which were, as was that of the claimant, supported by evidence from the Cambridge College of Learning, because that college was under investigation. The instant case was put into the relevant queue on 14 November, and allocated to a case worker in the relevant team subsequent to that. The note of instruction makes it clear that the case was then placed into the "bring forward" list, a central hold for cases which require further information or further guidance.[3]Following the investigation into the Cambridge College of Learning, the defendant received an unusually high number of requests, a pattern of requests, for withdrawals, in relation to Cambridge College of Learning cases. On 8 December 2008 the investigation led to the closing of the Cambridge College of Learning, and on the same date a case work instruction was issued within the Borders Agency which provided as follows:
"If an applicant/representative wishes to withdraw their application we should action this request. This excludes Cambridge College of Learning cases. Requests for withdrawal of these cases should be responded to as under Section 9 below."
[4]Section 9 stated that applicants should be informed in those circumstances that their cases have been selected for extended checks.[5]On 22 December 2008 a further case work instruction, the third relevant to this case, was issued. The key parts of the instruction read as follows:
"Any qualification submitted which was studied for or awarded by the Cambridge College of Learning in support of an application should be verified following the tier 1 verification process and case worked as normal (with the exception of those cases containing evidence stated in paragraph 4 of this instruction). If after verification the qualification has been confirmed as false the case should be refused under paragraph 322(1A) and Post Study Work applications scored as detailed in paragraph 4."
[6]The instruction continues with paragraph 4 which reads:
"The college has confirmed that it has never operated or awarded postgraduate diplomas in the following subjects: Business management. Information technology. "
As such, any qualification received in either of these subjects from Cambridge College of Learning from any period should not be accepted and should be refused under paragraph 322 (1A)."[7]In the course of this case it is agreed that the qualification advanced by this claimant was a qualification falling within the relevant direction. The postgraduate qualification in business management which was considered subsequently to these events by the Asylum and Immigration Tribunal in the Cambridge College of Learning case, that is NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 was a diploma in business management. In the instant case the claimant sought to rely on a "certificate" of business management.[8]Since the evidence from the CCOL witnesses in the Asylum and Immigration Tribunal case referred to by the relevant instruction was that the college had never offered any postgraduate courses in business management, the distinction between a diploma and a certificate appears to me -- and I have heard no argument to the contrary -- to be a distinction without a difference. It therefore follows that the relevant qualification which had been relied on by this claimant fell within the category identified in the third case work instruction.[9]The claimant has given evidence in his witness statement that on 12 January 2009 he notified the Secretary of State for the Home Department in a fax that he wished to withdraw his application. That is a fact in issue between the parties since the defendant's position is that no such fax has been found and it would have been found if sent.[10]What is not in issue is that on 21 January the claimant telephoned the Immigration Inquiry Bureau at the Borders Agency requesting, or alternatively confirming his request, that his application be withdrawn.[11]On 28 January the claimant's case was called out of the "brought forward" list, considered and refused. By the time of the refusal, the third case work instruction was in place as indicated. It follows that according to the detailed stipulations of that instruction zero points were awarded to this claimant under the headings of 'qualification", "institution", "immigration status" and "date of award". It is that decision that the claimant challenges.[12]Before I consider the challenge, it is necessary briefly to consider the procedural history of the case. On 6 March 2009 the claimant issued judicial review proceedings. An acknowledgment of service and summary grounds were served and filed on 22~September 2009. On 17~November 2009 Mr Ian Dove QC, sitting as a deputy High Court judge, considered three grounds advanced for permission of judicial review and dealt with them as follows. The first ground in the claim form is as follows:
"Whether the Secretary of State's decision is void (and thereby unlawful) for being made on an application which was withdrawn 15 days prior to the decision. Put another way, what is the purpose, meaning and intent of paragraph 34 J of HC 395."
In relation to that ground the learned deputy judge said: 13. "The first ground of this application is in my view arguable since it does not appear to be disputed, that the claimant requested the return of his passport for the purpose of travel to Pakistan prior to the application having been determined, and there is no suggestion in the defendant's policy and the rules that he may disregard the withdrawal of an application and go on to determine it for his own reasons."[13]The second ground related to the entitlement to the refund of a fee which had been paid for the application, and the learned deputy judge refused permission on that ground. There has been no application to me to revive that ground of judicial review.[14]Thirdly, the ground advanced by the claimant initially is whether the decision of the Secretary of State is materially wrong in law even if there is a power, or capacity, or jurisdiction, to make an adjudication on an application which has been withdrawn, and the learned deputy judge refused permission on that also.[15]The matter came before Mr Justice Stadlen on 29 January 2010, and he directed that this matter should be adjourned for further evidence to be served, and indicated that if possible the matter should be relisted before him. That has not proved to be possible and so the case has come before me.[16]At the beginning of the hearing I checked with Mr Malik, counsel for the claimant, his position having shifted to some degree in its focus during the course of the development of argument both before Mr Justice Stadlen and thereafter in further supplementary written submissions, that his propositions were properly encapsulated in the revised skeleton argument from the defendant's counsel in paragraph 5. He agreed that his key points were so encapsulated and thus it is helpful to begin by reciting those five bullet points. They are as follows: Firstly, that paragraph 34 J of the immigration rules does not apply. Secondly, that the passage from the internal guidance which explains paragraph 34 J, that is to say the IDI of February 2008 at chapter 1 A section 1 paragraph 9, does apply. Thirdly, that the defendant cannot act in the way he has done unless there is a relevant rule which "empowers" him to act, as otherwise he would be able to avoid Parliamentary scrutiny, in the sense that this procedure was not placed within the immigration rules or an amendment to the immigration rules and therefore subject to negative resolution by Parliament. Fourthly, that there is no express rule which gives the defendant the power to decide an application, where a request for a withdrawal of the application has been made. And fifthly, that the defendant must act in accordance with the IDIs, the only exception being where they are inconsistent with the immigration rules.[17]The Immigration Rules have a statutory origin and platform to be found in section 3 subsection 2 of the Immigration Act 1971. The relevant part of that subsection reads as follows:
"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this act for regulating the entry into and stay in the United Kingdom of persons required by this act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances."
[18]As has been pointed out in the course of argument, the power which is laid down in that section has given rise to rules which have been subject to considerable amendment over the years, and also subject to considerable interpretation and consideration by the courts. The rules often condescend to considerable detail, for example providing that applications for various kinds of leave to remain may only be made online, rather than by way of hard copy or paper application.[19]It is said by the claimant that a decision to instruct immigration officers to disregard an express notice of withdrawal is a matter of principle, something which should be laid before Parliament as a necessary implication of the legislation which underpins the rules, and that the obligation to lay such a change in the rules or procedures as an amendment to the immigration rules, is derived from the way the power to create rules has been formulated and from the use of the power historically. Really, it is being said there must be an application to formulate a rule or a variation of a rule before such an approach can be permissible.[20]The nature of the immigration rules has been considered many times by the courts. They were reviewed by Lord Justice Buxton in the course of the judgment of the Court of Appeal in Odelola (FC) v Secretary of State for the Home Department [2008] EWCA Civ 308. In the course of his judgment, in paragraph 12, Lord Justice Buxton sets out a considerable series of judicial observations on the nature of the immigration rules which it is not necessary for me to repeat, but which is itself a considerable exercise in scholarship.[21]The culminating point of the consideration of the nature and properties of the rules might be thought to be found in two speeches in the same case when it reached the House of Lords, firstly in paragraph 6, part of the speech of Lord Hoffmann. The reference for the House of Lords is Odelola (FC) v Secretary of State for the Home Department [2009] UKHL 25. The relevant passage is in paragraph 6 of the speech of Lord Hoffmann where he says this:
"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality Immigration and Asylum Act 2002 one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. So there was no conceptual reason why they should not create rights which subsequent rules should not in the absence of express language be construed as removing. The question is whether on a fair reading that is what they do."
[22]The other key passage from the House of Lords decision in Odelola is to be found in the speech of Lord Brown of Eaton-under-Heywood. The important passages are to be found in paragraphs 33 to 35 of the judgment:
"In deciding what simple fairness demands in the present context it is important to recognise first and foremost that, so far from asking here what Parliament intended, the question is what the Secretary of State intended. The rules are her rules and, although she must lay them before Parliament, if Parliament disapproves of them they are not thereby abrogated: the Secretary of State merely has to devise such fresh rules as appear to her to be required in the circumstances. Secondly, as Mr Ockelton put it in the tribunal’s decision here, 'The immigration rules are essentially executive, not legislative'; the rules 'are essentially statements of policy'. Longmore LJ said much the same thing in the Court of Appeal (para 27): 'The rules are statements of executive policy at any particular time … Policy statements change as policy changes.' "
This to my mind is the core consideration in the case. This, and the fact that, save in those few specific cases (such as HC395 in 1994) when express transitional provisions were included in the rule changes, decisions invariably have been taken according to the up to date rules. "The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33(5) of the 1971 Act provides that: 'This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.' "The Secretary of State’s immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control."[23]As a consequence of that legal learning, I can quite see that it can be the basis of a successful judicial review if it is established that the Secretary of State or those acting for him have acted inconsistently with the rules. Or that if it is proposed to empower the Secretary of State with a discretion, which is a broad and principled discretion with wide effect, it might be a basis for successful challenge if no amendment to the rules was made providing for such a broad change to principled discretion, or to the use of discretion in principle, or in general to a clause with very wide effect. The basis for the latter challenge would be that the Secretary of State would be or might be thought to be introducing a broad change in his approach without submitting the change to the risk that negative resolution scrutiny by Parliament would come into effect and prevent the change.[24]However it does not follow that an obligation should be imposed by law on the Secretary of State to amend the rules for any detailed instruction or specific instruction in the practice of those acting on his behalf.[25]It seems to me that Ms Anderson, who has appeared in this case for the Secretary of State, is correct. The rules are a mechanism by which the exercise of the prerogative power is confined or channelled, and if the rules do not prohibit an exercise of discretion in a~given fashion or for a given purpose, then the discretion is preserved.[26]I turn now to consider rule 34 J. Paragraph 34 J reads as follows:
"Where a person whose application or claim for leave to remain is being considered requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been determined, be treated as withdrawn as soon as the passport is returned in response to that request."
[27]It seems to me that the rule is not at all inconsistent with the instructions given in this case. Indeed the implication of the language in paragraph 34 J is that the application is treated as withdrawn as soon as the passport is returned, not as soon as a request to withdraw has been received, or some other formulation with that sense. The implication is that there may be a discretion to postpone the return of the passport while the application is determined, even where an application for the return of the passport has been received.[28]As Ms Anderson has pointed out in the course of argument, the application for the return of the passport so as to travel outside the common travel area is, in effect, an indication of a desire to withdraw the application for leave to remain, because by reason of other provisions travel outside the common travel area is inconsistent with an application is being withdrawn.[29]I turn to the question of the IDIs or Immigration Department Instructions. These too have a relation to statute. By schedule 2, part 1, paragraph 1 (3), of the Immigration Act 1971, the following is placed into statute:
"In the exercise of their functions under this act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State."
[30]As a statement of a very obvious proposition, that formulation is to be remarked. These too have been considered in court, notably in the judgment of Lord Justice Sedley in the case of ZH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 8 at paragraphs 31 to 33. Those paragraphs read as follows:
"We invited additional written submissions when we reserved judgment because Mr Payne, perfectly reasonably, wanted time to take full instructions. His submission, having done so, is twofold. First, through him the Home Secretary accepts that neither case-workers nor presenting officers should depart from IDI guidance without good reason. Secondly, and given that IDI are publicly available, there should be no requirement or expectation that in every appeal the material IDI, if there is one, will be produced to the AIT. This is both for legal and logistical reasons; but since no such proposal is being mooted, it is not necessary to go into them. The question is what should happen when a discrepancy between an IDI and the case being presented by the Home Office is drawn (usually but not necessarily by the appellant) to the AIT's attention. "
Two things seem reasonably clear. One is that the IDI does not have, and cannot be treated as if it possessed, the force of law. The other is that, at least in a case such as the present one, the IDI must have a legitimate bearing in the sense that it would be wrong for the immigration judge to adjudicate in ignorance of it. Between these poles one can locate two further propositions. First, albeit its author is in law the author of the immigration rules, the IDI is not an aid to the construction of those rules. Secondly, and assuming always that it sits, as it must, within the four corners of the rule to which it relates, the IDI's significance cannot depend on whether it steers caseworkers towards a restrictive or a generous application of the rule. If Mr Hussain can use the present IDI because it helps him, the presenting officer in another case can use another IDI for the opposite reason; and in both such cases the IDI becomes a surrogate for the rule, which is not permissible. "It follows that the proper course is not to introduce the material IDI every time the meaning or application of an immigration rule is in issue. But the presenting officer should be ready to explain to the AIT any divergence between the case now being presented and any material IDI to which the AIT's attention is drawn. This approach, without placing an undue burden on the Home Office, reflects the legal obligation of government not to act inconsistently with its own policy unless there is some good reason for doing so: see British Oxygen v Board of Trade [1971] AC 610. More than this would be to give internal guidance the force of law; less would be to tolerate double standards in public administration."[31]The relevant IDIs in the instant case are 4.1, 4.2 and 9 of chapter 1 section 5, section 3C and 3D of the Immigration Directorates's instructions. Paragraph 4.1 reads as follows:
"Return of passport for travel before an application has been determined. "
Where an applicant requests the return of a passport for travel outside the common travel area the application for variation of leave shall, provided it has not been determined, be treated as withdrawn as soon as the passport has been returned in response to the request (paragraph 34 of HC395) as amended by Cm 4851) refers). Section 3C leave will end immediately. There will be no right of appeal against this decision because there will have been no decision to refuse to vary leave:[32]4.2:
"Withdrawal of applications (not travelling). "
Where an applicant who is not travelling makes a clear unambiguous request for consideration of the application to be discontinued, section 3C leave will terminate on withdrawal of the application. If such a request is ambiguous, clarification that the application is being withdrawn should be sought. It should be accepted only once a clear, unambiguous request has been made in writing. Where such notification is given by post, the date of postage is when the application is withdrawn and section C3 leave ends on that date."[33]Paragraph 9 reads as follows:
"Withdrawn applications: "9.1. Under paragraph 34 J (of the immigration rules) an application for leave to remain is to be treated as withdrawn if the passport is returned for travel outside the common travel area before the application is decided. Ideally such requests should be confirmed in writing but where the reason for travel is urgent the passport may be returned without a written request having been received. In these circumstances, it is important to record the relevant details in the case notes. Where a passport is returned for the purposes of travel the application is treated as withdrawn whether or not the applicant subsequently travels. No refund of the specified fee will be appropriate where an application is withdrawn."
[34]None of these directions are inconsistent with rule 34 J, and indeed appear to me to be attempts to incorporate the central provisions of 34 J into IDIs. Nor do any of these provisions appear to me to be inconsistent with the decision taken in relation to the claimant here. The closest that Mr Malik came to suggesting such an inconsistency was by reference to the sentence in paragraph 4.2 which reads:
"It should be accepted only once a clear unambiguous request has been made in writing."
[35]He said that the proper interpretation of that sentence was in effect that the Secretary of State was obliged to accept a withdrawal once a clear unambiguous request has been made in writing. I disagree with that interpretation. It seems to me clear that what the Immigration Directorate instruction was aiming at was avoiding the evil of an ambiguity, and that before there could be proper acceptance of withdrawal, there had to be a clear and unambiguous request made in writing. That is a long way from obliging the Secretary of State to accept such an attempted withdrawal.[36]Immigration Directorate Instructions and certainly the Immigration Rules cannot be required to cover every eventuality. There cannot possibly be an obligation on the part of the Secretary of State to lay down new immigration rules, or indeed amendments to the rules, for every possible set of facts or hypothetical eventuality that arises.[37]Here it seems to me to be a perfectly legitimate decision on policy to say where 1) there is a bogus qualification followed 2) by a pattern of attempts to withdraw applications for leave to remain, that the proper response should be not to permit such withdrawals but to scrutinise the reliance on the bogus qualifications to reach a determination. After all, the question of reliance on a bogus qualification is relevant whether or not an application is successful. It seems to me entirely inconsistent with that established policy to say that there could not properly be reliance by the Secretary of State on an application supported by a bogus qualification which is then attempted to be withdrawn. So for all those reasons, and with thanks to both counsel who have represented their clients before me ably, this judicial review is refused.[38]Mr Malik, I have a short note from your colleague, Ms Anderson, which explains she is not able to be here this afternoon, but as I understand it, you are both agreed that costs should follow the event in this case, is that correct?[39]MR MALIK: Yes, my Lord. I agree, given that the claimant has lost his case and importantly any order of costs would be academic, I do not propose to object to the Secretary of State's application. The Secretary of State has not given a figure, but if your Lordship is minded to order costs in the Secretary of State's favour, then it is common ground that an order should be to require the claimant to pay the costs to be assessed if not agreed.

MR JUSTICE IRWIN: Yes.

[41]MR MALIK: My Lord, the other consequential matter is that I have an application for permission to appeal to the Court of Appeal. I have of course heard what your Lordship has said. In my most respectful submission, the issues raised in this matter are of some general importance and warrant the attention of the Court of Appeal. My Lord, the Secretary of State's position, as is clear from the note, is that this is not an unusual matter and the question of permission should be left to the Court of Appeal. In any event, my Lord, I invite to you grant permission.[42]MR JUSTICE IRWIN: Thank you, Mr Malik. I refuse permission. It seems to me that this is a matter which if you wish to pursue you will have to seek permission from them. I do not think that you have a reasonable prospect of success. So permission for appeal is refused.