Ivlev, R (on the application of) v Entry Clearance Officer, New York [2013] EWHC 1162 (Admin)

[2013] EWHC 1162 (Admin)

Case No CO/4770/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 09/05/2013

Before

THE HONOURABLE MR JUSTICE SALES

Between

The Queen on the application of Pavel IvlevClaimant

Entry Clearance Officer, New YorkDefendant

Mr Laurie Fransman QC, Mr Duran Seddon (instructed by Gherson Solicitors) for Claimant

Mr Andrew O’Connor (instructed by Treasury Solicitor) for Defendant

Hearing Hearing dates: 27/11/12-29/11/12 and 29/4/13

Judgment

Introduction

[1]This is a claim for judicial review of a decision taken within the UK Border Agency (“UKBA”) notified to the Claimant by a decision notice dated 28 February 2011 (“the decision notice”) refusing to grant the Claimant entry clearance under the Tier 1 (General) Migrant category of the Points Based System for highly skilled migrants.

[2]The Claimant is a lawyer of Russian origin. He has dual Russian/US nationality, having been naturalised as a citizen of the USA in March 2010. He was a senior member of a Moscow law firm (ALM Feldmans) which acted for some years through him and others for the Yukos group of companies (together, “Yukos”) headed by Mikhail Khodorkovsky (“Mr Khodorkovsky”) and for some of the leading figures in Yukos. The Claimant faces criminal charges in Russia relating to his involvement with Yukos as its lawyer. The Russian police have issued a so-called “Red Notice” through Interpol, calling for the arrest of the Claimant wherever he may be found.

[3]The Claimant resides in the USA, which has decided not to arrest him or extradite him to Russia pursuant to the Red Notice. He practises as a lawyer in the USA. He wishes to have entry clearance to come to the United Kingdom to carry on his law practice here as well.

[4]The decision notice purported to set out a decision made by a UKBA Entry Clearance Officer in New York (“the ECO”). In fact, as I explain below, it emerged in the course of the hearing and is now conceded by the Secretary of State that the UKBA New York office and the ECO in question understood that they were being directed by UKBA’s head office in London to make the decision to refuse entry clearance for the Claimant. This was a misunderstanding on their part, since UKBA’s London office intended only to provide advice for consideration by the ECO. However, the Secretary of State accepts that the net effect of this misunderstanding between the two offices is that the true operative decision to refuse entry clearance for the Claimant was taken by the acting head of the UKBA, Jonathan Sedgwick, at a meeting of officials in London on 14 February 2011.

[5]Although, as recorded in the decision notice, the ECO concluded that the Claimant scored sufficient points to be granted entry clearance (i.e. a visa) in ordinary circumstances, the letter went on to say:

“I have refused your visa application on this occasion because I am not satisfied that you meet all of the requirements of paragraph 320(19) of the Immigration Rules.”

Paragraph 320(19) provides that entry clearance may be refused by an ECO on the ground that exclusion from the United Kingdom is “conducive to the public good”. The decision notice set out reasons to explain the decision to refuse entry clearance under paragraph 320(19) which had been drafted by Karen Evans, a UKBA official in UKBA’s London office, to reflect the advice which Mr Sedgwick had decided should be given to the ECO in relation to the Claimant’s case (and which the ECO understood to be a direction as to how to decide the application).

[6]The Claimant challenges the decision set out in the decision notice on a range of grounds, including that there was in effect an unlawful surrender or abdication of responsibility for the decision from the proper decision-maker (who, according to the Immigration Rules, should have been the ECO) to Mr Sedgwick. The Claimant maintains that the criminal charges against him are politically motivated and without substance, such that they should have been disregarded by the British authorities when considering whether he should be granted entry clearance. He submits that the relevant decision-maker, Mr Sedgwick, erred in law in treating the outstanding criminal charges as a reason for refusing to grant him entry clearance.

The background to the claim for judicial review

[7]Mr Khodorkovsky was one of the main shareholders and former head of Yukos, an important and valuable Russian group of companies involved in the oil industry. In October 2003, Mr Khodorkovsky was arrested by the Russian police on charges of fraud and tax evasion. In parallel with this, the Russian authorities levied a series of massive demands against Yukos for payment of tax, which eventually resulted in it being made bankrupt.

[8]In August 2004 the offices of ALM Feldmans were raided by the Russian tax crimes unit seeking information relevant to Yukos’s tax affairs. In November 2004 the General Prosecutor’s Office in Moscow (“the GPO”) raided the offices of ALM Feldmans and the homes of some of the lawyers in the firm seeking information relevant to Yukos and a bank called Menatep owned by Mr Khodorkovsky.

[9]Lawyers in the firm were also summoned for interview by the GPO. The Claimant was interviewed on 16 November 2004. According to him, an investigator with the GPO put pressure on him to answer questions about Yukos’s affairs in breach of lawyer/client duties of confidentiality or face immediate detention. The Claimant provided some limited information and was allowed to leave. The Claimant fled Russia that evening and has not returned. The Claimant went to the USA.

[10]On 28 December 2004, the GPO brought criminal charges against the Claimant for fraud, money-laundering and tax evasion. In January 2005, the GPO obtained the permission of a Russian court in Basmanny to issue and pursue those charges against the Claimant.

[11]In early February 2005 the Claimant’s home was searched. He then arranged for his wife and children to leave Russia and join him in the USA.

[12]On 15 February 2005, the Moscow City Court quashed the order of the Basmanny Court and remitted the case to the Basmanny Court. In April 2005, the Basmanny Court transferred the Claimant’s case to the court in Khamovnichesky, which later became seised with the criminal proceedings against Mr Khodorkovsky. In June 2005, the Khamovnichesky court granted permission to the GPO to commence criminal proceedings against the Claimant.

[13]On 14 November 2005, the GPO issued a new indictment against the Claimant, charging him with conspiracy to embezzle oil from Yukos as part of an organised group and with money-laundering the proceeds. The charges against the Claimant are related to the criminal charges against Mr Khodorkovsky and other defendants connected with the management of Yukos. The Claimant is alleged to have set up offshore companies to assist them to embezzle funds from Yukos and direct them into offshore accounts.

[14]On 17 November 2005, the GPO declared an international search for the Claimant and on 2 December 2005 the Basmanny Court issued a warrant for his arrest. The Moscow City Court upheld this decision as lawful. A Red Notice was issued by Interpol to seek to give effect to this warrant. Under a Red Notice, the police in other countries are asked to co-operate with the authorities in the state which has issued a warrant for the arrest of an individual, by detaining the individual and seeking to extradite them to the issuing state to face criminal charges there.

[15]The Claimant has not, however, been detained by the US authorities. His position is that the charges against him are politically motivated and baseless, and that he would face an unfair trial, wrongful imprisonment and possible mistreatment if he were returned to Russia. The Claimant maintains that Mr Khodorkovsky has been pursued through the Russian criminal process on the basis of politically motivated charges, because he defied President Putin and accused his government and associates of corruption. Others associated with Mr Khodorkovsky have been pursued in a similar way, without good reason. The Claimant fears that he would be treated in the same way if he returned to Russia. He says that, with his help, Yukos used tax minimization schemes which were lawful. He has been afforded protection by the US authorities, who have granted him US citizenship. He has lived and worked in the USA since 2004.

[16]The first trial of Mr Khodorkovsky and an associate involved with Yukos, Mr Lebedev, for fraud, embezzlement and tax evasion began in June 2004. They were convicted on 31 May 2005 of six of the seven charges against them and sentenced to nine years’ imprisonment, reduced to eight years on appeal. Both of them have brought proceedings against Russia in the European Court of Human Rights for violation of their rights under the European Convention on Human Rights (“ECHR”).

[17]A second set of criminal charges was filed against Mr Khodorkovsky and Mr Lebedev in June 2008, alleging misappropriation from Yukos affiliated companies and money-laundering of the proceeds. Their trial on these charges commenced in March 2009. They were convicted on these charges in December 2010.

[18]There has been considerable international criticism of both trials of Mr Khodorkovsky and Mr Lebedev, to the effect that the charges against them have been politically motivated, that action against them and Yukos has breached Russia’s obligations under the ECHR and that the trials against them have not been fair and in compliance with Russia’s obligations under

Article 6 of the ECHR

. In particular, the Claimant placed weight on the report dated 29 November 2004 of Ms Letheusser-Schnarrenberger, who visited Russia to investigate these matters as rapporteur for the Parliamentary Assembly of the Council of Europe, which was adopted by the Assembly on 25 January 2005 by resolution 1418 (2005). The Claimant also relied on this report, along with other materials, in support of his contention that there are serious problems of corruption in the judiciary in the Russian Federation, and that it is “deeply susceptible to political interference”.

[19]There has been a series of requests by the Russian Federation to the United Kingdom for the extradition of individuals connected to the Yukos case, which have all been dismissed by the courts in England on the grounds that the prosecutions against them are politically motivated and that the individuals concerned would not have a fair trial in Russia: see, for example, the judgment of Senior District Judge Timothy Workman of 18 March 2005 in relation to extradition requests in respect of Dmitry Maruev and Natalia Chernysheva, in which after full examination of the facts he concluded, “I am satisfied that it is more likely than not that the prosecution of Mr Khodorkovsky is politically motivated”, and that accordingly there was a similar risk of injustice to Mr Maruev and Ms Chernysheva if they were extradited to Russia. The Secretary of State has also granted asylum in the United Kingdom to other Russian nationals associated with Yukos who would be at risk of mistreatment or unfair criminal proceedings if returned to Russia, in particular Mr Bourganov and Mr Gorbachev, and extradition was again refused in their cases by Senior District Judge Workman in a ruling dated 17 August 2005. By a judgment dated 23 December 2005, the District Judge dismissed an extradition request in relation to Mr Temerko, formerly the Deputy Director of Yukos, and by a further judgment dated 24 June 2008 he stayed extradition proceedings in relation to Irina Golub, who had also been granted asylum in the United Kingdom by the Secretary of State. In other cases, too, the Secretary of State has granted Russian nationals associated with Mr Khodorkovsky and Yukos asylum or other rights to remain in the United Kingdom to protect them from return to Russia, on the grounds that they would face unfair, politically motivated criminal proceedings if removed to Russia.

[20]Courts in other countries in Europe have also refused requests for extradition of individuals associated with Yukos, on similar grounds.

[21]The Claimant rehearsed all these points in some detail in a covering letter from his solicitors to the ECO dated 29 July 2010 (“the covering letter”) which accompanied his application for entry clearance and a document entitled, “Summary of Evidence of Political Motivation Behind Criminal Charges” (“the Summary”), enclosed with that letter. In the covering letter it was pointed out that the Claimant is (apart from the charges against him) “of impeccable character (no convictions, charges, etc).” It was also emphasised that in order to be naturalised as a US citizen, he had had to satisfy the US authorities that he was of good moral character.

[22]The covering letter sought to explain why the application should not be refused under the “General grounds for refusal” provisions in Part 9 of the Immigration Rules (including paragraph 320), notwithstanding the Red Notice in respect of him. In the letter, the Claimant’s position was stated thus:

“… the only matter against [the Claimant] is the Russian criminal proceedings and the ECO/Secretary of State should ignore them because they are politically motivated and the Secretary of State has already accepted this”

(emphasis in original, the matters relied upon being the grants of asylum and leave to remain and rejection of extradition requests referred to above). The covering letter also stated, “The material we have provided plainly establishes not only the lack of merit in the allegations against [the Claimant], but also that such allegations form part of the wider political persecution of Khodorkovsky and Yukos.” The letter also said that if the Claimant were issued with entry clearance, the Claimant’s assumption would be that “the Secretary of State will not be relying on the Interpol red notice and will not arrest [the Claimant] on arrival in the UK” (emphasis in original).

[23]The Claimant did not supply all the source material on which the Summary was based, because it occupied “many lever arch files”. However, it was stated that “any particular document can be provided on request”. In particular, the Claimant did not provide the ECO or, indeed, the Court on this application for judicial review with the judgment of the Russian court according to which it found Mr Khodorkovsky and Mr Lebedev guilty of the charges against them in May 2005, nor with any detailed explanation why that judgment was incorrect on its facts.

[24]The Claimant did provide the ECO and the Court with a translation of the criminal charges issued with the permission of the Russian courts against him. However, again, he did not provide the ECO or the Court with any detailed explanation by reference to the evidence in the case why the charges were factually incorrect. Rather, he relied on the general background to suggest that the charges against him were, like those against Mr Khodorkovsky, politically motivated, and invited the ECO and the Court to draw the inference that they must be factually without substance.

[25]In my judgment, this is a non sequitur. That inference cannot be drawn with any confidence on the basis of the material before the ECO and before the Court. It may be that there is some substance in the charges brought against the Claimant, even though at the same time the reason they have been brought against him is to do with the political situation in Russia and the intervention of President Putin or those connected with him. Absent a detailed demonstration by reference to the evidence in relation to Mr Khodorkovsky, the same is true in relation to the charges against him and his convictions. It does not follow from the possibility that the Russian judicial system may be open to corruption or political influence in its operation that it only ever acts in accordance with such influence and without any reference to the underlying merits of the cases which come before it. Indeed, the fact that the courts in Russia in the Claimant’s case have not always simply done what the GPO asked them to do appears to indicate that on some occasions and in some respects, at least, they do have regard to the underlying merits of the cases brought before them.

[26]In relation to the charges brought against the Claimant, he did not seek to say that he had not been involved in setting up payments from Yukos entities to offshore accounts with a view to avoiding tax. His case, rather, is that the arrangements he made for Yukos in conjunction with Mr Khodorkovsky and the Yukos management team were entirely lawful and legitimate. That is an issue the determination of which would require a detailed examination of all the (complex) circumstances of the case and the application of Russian law and corporate practices in Russia. The Claimant did not, in his representations to the ECO and in his submissions to the Court, seek to engage with the detail of the case to support his contention that the charges against him were clearly and manifestly without substance. On the face of it, the relevant bodies in Russia (the GPO and the Russian courts) who have scrutinised the issue have concluded that there is a serious case against the Claimant which merits the bringing of criminal charges against him and permitting them to proceed after due scrutiny. The Claimant has not put and has not sought to put any of the ECO, the Secretary of State and this Court in a position to conclude that there is no proper case fit to go forward against the Claimant, nor indeed to make any sensible or informed assessment for themselves of the relevant underlying facts and law relevant to the case against the Claimant.

[27]I therefore consider that the Claimant failed to demonstrate to any of the ECO, the Secretary of State or this Court that the material provided by him to the ECO or the Court “plainly establishes … the lack of merit in the allegations against [the Claimant]”, as it was put in the covering letter of 29 July 2010. Moreover, I do not consider that it was incumbent on the ECO or the Secretary of State to call for further information or representations beyond those which the Claimant chose to put forward in support of his application. They were entitled to proceed on the footing that the Claimant had supplied all the key materials he wanted considered. The Claimant says he was impeded by the quantity of material, but that is not fault of the United Kingdom authorities. It was for the Claimant to put forward a persuasive case in support of his contention that the United Kingdom should ignore an Interpol Red Notice in his case. In any event, it was clear from the materials which the Claimant did supply to the ECO that it would in all likelihood be impossible for the ECO or Secretary of State to get to the bottom of the underlying merits of the charges against the Claimant or Mr Khodorkovsky.

[28]It should be noted here that the Claimant is, of course, not at present in the United Kingdom and does not claim asylum here; nor does he wish to come to the United Kingdom in order to claim asylum. He has no present need of protection from the United Kingdom against removal to Russia, since he is a US citizen and is able to reside safely in the USA. If the Claimant does enter the United Kingdom, an issue would arise whether he should be arrested pursuant to the Red Notice and face extradition proceedings with a view to his removal to Russia.

[29]At the relevant time, the UKBA office in New York was staffed in part with US nationals. The ECO was a US national living in the USA, employed by the British Government to act as an ECO. The Entry Clearance Manager at the relevant time (“the ECM”), Hannah Bakehouse, was a British national living in the USA. Since the decision to reject the Claimant’s application, both the ECO and the ECM have left their employment with the UKBA.

[30]This has caused some difficulty for the Secretary of State in putting together evidence relevant to the claim for judicial review, especially in relation to the ground of claim based on unlawful surrender, abdication or delegation of the decision-making function by the ECO to the UKBA head office in London, which was only identified as a distinct ground of claim in the Skeleton Argument for the Claimant served shortly before the start of the hearing in November 2012 and in respect of which I gave permission for it to be incorporated by amendment in the Grounds of Claim at the hearing itself. By the time this issue was identified as a new ground of claim, both the ECO and the ECM no longer worked for the UKBA. It proved impossible to locate the ECO to take a statement from her. The ECM was traced, but declined to provide a witness statement. Other witnesses for the Secretary of State, in particular Ms Evans, therefore had to give evidence of what had happened in the exchanges between the UKBA’s New York and London offices from their own recollection and understanding and by reconstruction from contemporaneous documents.

[31]It is common ground that under the relevant provisions of the Immigration Rules the ECO was the proper decision-maker in relation to the Claimant’s application: see paragraph 26 (ECO to be decision-maker in place of Immigration Officer in appropriate cases), Part 6A (Points-Based System), including in particular paragraphs 245A to 245C (Tier 1 (General) Migrants, for highly skilled migrants who wish to work or become self-employed in the UK), and Part 9 (General Grounds for the Refusal of Entry Clearance etc), including in particular paragraph 320(19), of the Immigration Rules. Part 6A of the Immigration Rules requires an ECO to consider the reasons why an applicant wishes to come to the United Kingdom and to assess whether they satisfy the requirements for entry clearance, including by reference to the points to be awarded in relation to their application. The requirements for entry clearance stipulated in paragraph 245C also include, at paragraph (b): “The applicant must not fall for refusal under the general grounds for refusal [i.e. those set out in Part 9] …”.

[32]Paragraph 320 of the Immigration Rules, in Part 9, sets out general grounds for refusal of an application for entry clearance. These are divided into two groups. The first group is grounds on which entry clearance or leave to enter the United Kingdom “is to be refused” (i.e. is mandatory). These include, at sub-paragraph (6), “where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good.” No such direction was issued in relation to the Claimant. The second group is grounds on which entry clearance or leave to enter the United Kingdom “should normally be refused” (i.e. leaving some element of discretion to an ECO). These include, at sub-paragraph (19), “where from information available to the [ECO], it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.” It was under this sub-paragraph that the Claimant’s application for leave to enter was ultimately refused.

[33]Where the Immigration Rules stipulate that the relevant decision-maker on an application is an Immigration Officer or ECO, it is not lawful for the Secretary of State to seek to dictate a particular decision or outcome in relation to such application (unless by issuing a direction under paragraph 320(6), which was not done here): see R (NA (Iraq)) v Secretary of State for Foreign and Commonwealth Affairs

[2007] EWCA Civ 759

; [2008] INLR 69. However, it is open to an ECO to seek advice from the Secretary of State (in substance, from the relevant part of the UKBA in London) to assist in relation to any decision the ECO might have to make, and for complex or high profile cases such as that of the Claimant relevant guidance issued by the Secretary of State requests them to do so.

[34]When the Claimant’s application for entry clearance was received by the ECO in New York in July 2010, the ECO referred the application to the UKBA head office in London for advice about how to proceed, and in particular for advice whether the exclusion of the Claimant from the United Kingdom would be “conducive to the public good” for the purposes of paragraph 320(19).

[35]The question of the advice to be given was debated within a group of UKBA officials located in the USA and London known as the Visa Services Directorate of the UKBA International Group (“the Directorate”). The Foreign and Commonwealth Office (“FCO”) was consulted for its views about the possible impact on relations between the United Kingdom and the Russian Federation if the Claimant was allowed to enter the United Kingdom. The Serious and Organised Crime Agency (“SOCA”) was also consulted for its views about the possible impact on its bilateral relations with the Russian police and law enforcement agencies if the Claimant were allowed to enter the United Kingdom, in particular if no action were taken to arrest and extradite him pursuant to the Red Notice.

[36]Unfortunately, it is now not possible to be sure which members of the Directorate had before them the Claimant’s online application, the covering letter and the Summary. Some of the Directorate may have had some but not all of these documents. However, given the nature of the advice being sought, the content of a submission from the Directorate to Mr Sedgwick dated 11 February 2011 (“the February Submission”) and the nature of the discussion at the critical meeting with Mr Sedgwick on 14 February 2011, it is probable that between them members of the Directorate had access to and between them had reviewed in some detail the contents of all of these documents put forward by the Claimant. The Secretary of State accepts, however, that Mr Sedgwick did not have any of the Claimant’s documents before him at the meeting on 14 February 2011 and had not personally read those documents. He did have with him and had read the February Submission.

[37]Since it is now accepted by the Secretary of State that the operative decision to reject the Claimant’s application for entry clearance on “conducive” grounds under paragraph 320(19) was that taken by Mr Sedgwick at the meeting on 14 February 2011, an important issue arises whether the February Submission provided an adequate summary of the circumstances of the Claimant’s case and of the representations made on his behalf to enable Mr Sedgwick to make a fair and appropriate assessment whether it was right to refuse entry clearance on the ground that the Claimant’s exclusion from the United Kingdom would be conducive to the public good.

[38]The February Submission noted that the Claimant was the former lawyer of Yukos. It included an Annex giving background to his case (“the Annex”) as follows:

“1. [The Claimant] was previously a lawyer for the Yukos Oil Company in Russia. Yukos was one of the biggest and most successful oil companies in Russia between 2000 and 2003. In 2003, following a tax reassessment the Russian Government presented Yukos with a series of tax claims amounting to $27 billion. Yukos’ assets were frozen by the Government and the company was unable to pay the demands. In 2004, Yukos was charged with tax evasion. On 31 May 2005, the Head of Yukos, Mikhail Khodorkovsky was found guilty of fraud and sentenced to nine years in prison. The prosecution of Khodorkovsky was controversial and condemned widely by human rights groups as an example of state-engineered imprisonment. In 2009 he was put on trial again (along with his jailed partner Platon Lebedev) on further charges of embezzlement and money laundering. He was again convicted and jailed for 14 years to run concurrently with the earlier sentence and now faces imprisonment until 2017. In August 2006, a Russian court declared Yukos bankrupt. Other Yukos employees, under fear of arrest, fled Russia and are in self-imposed exile in various countries, including the UK. The Parliamentary Council of Europe has condemned Russia’s campaign against Yukos and its owners as manufactured for political reasons and a violation of human rights. 2. [The Claimant] left Russia in 2004. In September 2005 he applied for and was granted a visa in New York to enter the UK for 12 months as a self employed lawyer. His lawyers have stated that he travelled only once to the UK in November 2005 when he entered the UK, registered with the police and left after one week with the intention of returning. However, after leaving the UK he learnt that the Russian Government had charged him in absentia and issued a warrant for his arrest through Interpol. The warrant relates to charges laid against him for embezzlement and money laundering during his employment with Yukos. According to his lawyers, this led him to change his immediate plans and he allowed his leave to enter the UK to lapse. [The Claimant] is aware of the existence of the notice and has declared it on his visa application form. 3. We have been told unofficially through contacts in the US that the US authorities were not aware of all of [the Claimant’s] circumstances when he was granted US citizenship in 2010 and that they would likely have made a different decision if they had considered properly the Interpol warrant. This does not alter our advice given the different immigration legal framework and the fact that the US do not appear to have any additional information to the UK. 4. If [the Claimant] is granted a visa for the UK and travels to the UK it is possible that the Russian Government would request his extradition to Russia. Although we cannot be certain how the courts would respond to this, we think it likely that a request would fail, not least because previous attempts by Russia to extradite other Yukos employees have failed. In March 2005, a UK judge denied the Russian government’s extradition request for two Yukos managers, Natalia Chernysheva and Dmitri Maruev, on the grounds that their prosecution, including that of Mikhail Khodorkovsky, was politically motivated. In December 2005, after a long and expensive legal battle, a UK Judge declined to extradite Alexander Temerko, another Yukos manager.”

[39]The February Submission noted that the Claimant was the subject of an Interpol Red Notice. Two possible courses of action were identified:(a) to grant entry clearance, taking the view that the information contained in the Interpol Red Notice did not provide a sufficient basis for refusing to grant such clearance on “non-conducive” grounds, or

(b) to refuse the application under paragraph 320(19) on “non-conducive” grounds because of “the seriousness of the alleged criminality, the impact on foreign relations and the cost of possible extradition proceedings.” The Directorate’s recommendation was that Mr Sedgwick should choose (a) - as it was put in the submission, “That you agree to grant entry clearance to [the Claimant],” which could give the impression that the actual decision was for him, rather than the ECO. But on the evidence as a whole, and particularly in light of the structure of paragraph 320 of the Immigration Rules, I think it is probable that the UKBA officials in London, including Mr Sedgwick, understood that strictly he was only being asked to provide top level advice to the ECO regarding what could be regarded as being conducive to the public good in this case. In the event, however, despite this recommendation, after discussion at the meeting on 14 February 2011 Mr Sedgwick decided that advice should be given in line with (b), i.e. that exclusion of the Claimant from the United Kingdom would be conducive to the public good.

[40]The February Submission included the following discussion:

“8. While the Interpol red notice provides forewarning that [the Claimant] is wanted by Russia, the red notice does not in itself provide a basis for his arrest in the UK. In practice if [the Claimant] did arrive in the UK, law enforcement would confirm with the Russian the basis on which he was wanted and then consider whether, in the circumstances, to make an application to a court for a provisional arrest warrant. A provisional arrest warrant will be sought pending receipt of a formal extradition request in a case of real urgency. 9. [The Claimant] may use the UK’s track record on Yukos extradition cases to argue that we cannot rely on the existence of the extradition request to support a decision to refuse a visa on non-conducive grounds made under Paragraph 320(19). The failure of extradition in other Yukos cases is a relevant factor to take into account and might lead to a successful challenge of a visa refusal; however we would also argue that each case would need to be considered on individual merits/ circumstances. 10. The FCO has noted that the Russian authorities continue to seek the extradition of former Yukos employees and have a perception that Russian requests in many immigration and extradition cases are politically motivated. Granting a visa in this case is therefore likely to be an irritant to bilateral relations, but one that the FCO consider to be manageable. SOCA have suggested that refusing a visa would be the preferred option in terms of bilateral relations, but would not oppose a decision to issue. We do not assess that these grounds are strong enough to justify a refusal. FCO and SOCA acknowledge the responsibility falls to Home Secretary on the basis of the application of the relevant Immigration Rules by the Entry Clearance Officer. … 12. It is also possible that the case will be dealt with by the Magistrates court in a reasonably short time frame. On balance, therefore the recommendation is to grant entry clearance to [the Claimant], formally warning him that he may be arrested on arrival in the UK. 13. If you agree with the recommendation to issue, we advise exceptionally citing the Red Notice at time of issue. While in the ordinary course of events such notification would not be appropriate as it would potentially allow someone to evade justice, we recommend this approach here because [the Claimant], in his visa application, has explicitly mentioned his outstanding Red Notice and stated that he will assume that he will not be arrested if he is granted a visa. We cannot allow him to make this assumption as any arrest would be a decision made by SOCA/the police. … the following wording should be included in a letter to [the Claimant’s] representatives: “Visas are issued by the UK Border Agency (“UKBA”) in accordance with UK immigration law. A visa is being issued in this instance because [the Claimant] meets the conditions set out in UK immigration law. No inference can be drawn from this regarding the Interpol Red Notice. Any decision taken in the UK to take action on the basis of this Red Notice would not be made by UKBA and it is therefore possible that [the Claimant] will be arrested should he seek to enter the UK.”

Policy issues 14. In granting the visa we would be acting consistently with the approach taken in a case in November 2010 where a visa was issued to a Mongolian official who was the subject of a European Arrest Warrant from Germany. Although we are confident that we were right to issue, … the defence have alleged that there was an abuse of process. …” “Visas are issued by the UK Border Agency (“UKBA”) in accordance with UK immigration law. A visa is being issued in this instance because [the Claimant] meets the conditions set out in UK immigration law. No inference can be drawn from this regarding the Interpol Red Notice. Any decision taken in the UK to take action on the basis of this Red Notice would not be made by UKBA and it is therefore possible that [the Claimant] will be arrested should he seek to enter the UK.”

[41]Evidence of what happened at the meeting on 14 February 2011 was given by Lawrence Springall, a senior UKBA official who attended the meeting. According to Mr Springall, there was a wide-ranging debate at the meeting, “with discussion centring on the fact that Interpol had issued a Red Notice against the Claimant and that he had been accused of serious offences by the Russian authorities.” To Mr Springall’s recollection, there was no discussion about the decision of the United States Government to grant the Claimant US citizenship (cf paragraph 3 of the Annex to the February Submission). Paragraphs 8 to 10 of Mr Springall’s witness statement are as follows:

“8. Regard was given to the fact that the Claimant alleged that the charges against him had been fabricated by the Russian authorities, as well as to the fact that Russia had thus far failed to successfully extradite from the United Kingdom anyone associated with the Yukos Oil Company. We discussed the implications for the United Kingdom in being seen to accept a person into the country who had such charges outstanding against them and was subject to a Red Notice which could lead to protracted and expensive court proceedings and the implications this would have on the public purse: the Claimant is a third country national and, regardless of his level of alleged criminality, it was deemed not to be in the public interest for him to enter the UK. This latter point was not seen to be critical on its own, taking all matters in the round, the balance shifted in favour of refusal. A Red Notice can, on its own, be sufficient reason for an application to be refused. The Claimant had indicated that the charges were politically motivated and should entry be granted, that it was then incumbent on the UK not to action the Red Notice. There was a discussion about the charges generally and what this would mean to the UK’s wider relationships with International Organisations. It was not so much that the Claimant might be arrested if he was allowed to enter the UK, more that if he entered he might be arrested and subject to protracted legal proceedings. Ignoring the Red Notice or arresting the Claimant pursuant to the Red Notice, each clearly posed difficulties for the United Kingdom. In this respect, an important consideration was the effect that the grant of entry clearance might have on the United Kingdom’s bilateral relationship with Russia, with regard to the advice that had been provided to UKBA by the Serious Organised Crime Agency and the Foreign and Commonwealth Office. 9. A further consideration was the possibility of protracted legal proceedings (both in relation to possible extradition proceedings and removal under immigration powers) and the impact that this could or would have on the public purse. 10. During the discussion we considered that while we could not assume that the charges were well founded, there remained the possibility that they were. This was an additional factor that weighed against granting entry clearance. …”

[42]At the end of the meeting, it was agreed that the advice to be given to the ECO was that the Claimant should be refused entry clearance under paragraph 320(19).

[43]Mr Springall sent an email after the meeting, copied to Ms Evans, giving instructions for the drafting of a robust refusal notice for consideration by the ECO:

“We agreed that the advice from London to the ECO should be that this application should be refused under [para.] 320(19). …In reaching this discussion we discussed: - SOCA and FCO advise that admittance could be harmful to bilateral relations - There are serious criminal allegations which if true may make him a risk in the UK - The low success rate of recent extradition attempts means that we may not be able to remove him from the UK even though he is an alleged criminal - Given the red notice and the likelihood of arrest and extradition proceedings we do not believe he will be able to fulfil the stated purpose of his visa - He is not wanted for trial in the UK - Russia has not made a formal request to the UK on his extradition - We are not preventing his extradition from the US.”

[44]The main text for the decision notice was drafted by Ms Evans in the light of instructions about what had been decided at the meeting. She emailed it to the ECO on 25 February 2011. In the covering email she indicated that she had chosen to “steer well clear” of some matters in the draft, “namely not getting embroiled in a discussion about the nature of the charges or the outcome of previous proceedings in the UK for other Russian nationals charged with similar offences.” The February Submission was also sent to the ECO.

[45]The decision notice included the following in a section entitled, “General Grounds for Refusal”:

“ECO Comment: You have applied for entry clearance as a Tier 1 General Migrant. This application is covered by the provisions at paragraph 245C of the Immigration Rules. These can be viewed at http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationrules/ It is agreed that you meet the required points detailed in these rules. However, paragraph 245C (b) indicates that: (b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant. I am therefore not satisfied that you meet the requirements of this rule, when read in conjunction with the general grounds for refusal, specifically, paragraph 320(19). You indicated in your application form that you are the subject of outstanding charges in Russia for embezzlement and money laundering. I understand that a criminal case was initiated in February 2005 but that the Moscow city court dismissed these accusations. Further accusations were made in June of that year citing fraud, embezzlement and money laundering. It is these charges where the same court (Moscow city magistrates) issued a warrant for your arrest in absentia. The nature of charges against others for similar offences are examined in a letter from your representatives, Gherson solicitors, which accompanied your application. I will not repeat those here. These are very serious charges. In seeking to determine the visa application before me, there is a need to strike a balance between the individual’s wish to enter the UK with the requirements of the relevant immigration rules. In your case, an important part of that balance is the seriousness of the charges; the UK’s international duty not to obstruct the course of justice; the public interest and the protection of the conduct of foreign policy. It is not for me to go behind the nature or purpose of the request to place you on an Interpol red notice. Nor is it appropriate for me to prejudge any charges you face. I am not privy to the decisions of others, namely the US authorities, in agreeing to naturalise you. My purpose is solely to determine entry to the UK on the evidence as presented to me. I note, however, that you are applying as a US citizen and not a Russian national. The UK will not ignore a red notice from Interpol. As such, I have to consider a number of factors: the impact of your possible presence in the UK, particularly on this country’s relationship with Russia and the conduct of its foreign policy with that country. It is not in the interest of that policy to have someone known to have serious outstanding charges in Russia, so much so that a notice has been issued via Interpol, to be allowed to enter the UK in the capacity you have applied for. Protracted proceedings may place further strain on that relationship. I also assess it likely that the nature of those proceedings would not make it possible for you to fulfil the intended purpose of any conditions attached to your stay (i.e. Tier One General Migrant) because the time commitment required to service the legal process (including the possibility that you may spend time in custody) would practically interfere with your ability to work. Moreover, and in no way determinative on its own, is the cost of any proceedings on the public purse. On balance, it would not be in the public interest to become embroiled in further proceedings here. You are self employed in the US and this decision does not in any way interfere with your business: you expressed a wish to enter the UK and there is nothing in this decision which prevents you from continuing your self-employment from the US. I refuse your application on the basis of paragraph 320(19) when read in conjunction with paragraph 245C.”

[46]The decision notice also informed the Claimant that if he disagreed with the decision he could apply for an administrative review of his case. This he did, but the outcome in April 2011 was to confirm the decision.

[47]The Claimant issued his claim for judicial review in May 2011.

[48]Some time later, in August 2011, UKBA wrote to the US Citizenship and Immigration Services section of the US Department of Homeland Security to ask whether they had been aware of the Red Notice relating to the Claimant when his application for naturalisation as a US citizen was adjudicated and approved. By letter dated 2 September 2011, they confirmed that they had been aware of the Red Notice and had reviewed and considered it. The Claimant says that this indicates that paragraph 3 of the Annex to the February Submission contained a material error of fact.

[49]In the Claimant’s Grounds for Judicial Review, as originally pleaded, no challenge to the decision notice based on alleged unlawful surrender, delegation or abdication of decision-making function by the ECO was alleged. Mr Springall’s witness statement, dated 6 March 2012, therefore did not distinctly address that issue. It did, however, make clear his understanding that the relevant decision was taken by the ECO, whom Mr Springall described as “the sole arbiter of decisions made overseas for entry to the UK.” This understanding conforms with the proper interpretation of the Immigration Rules and the judgment of the Court of Appeal in NA (Iraq).

[50]In the Skeleton Argument for the Claimant served on 29 October 2012, about a month before the hearing, the Claimant indicated that he wished to add a further ground of challenge, namely that the ECO unlawfully surrendered her duty to exercise her independent decision-making function to officers of the Secretary of State in London (“the unlawful surrender ground”). By a document dated 16 November 2012, entitled “Permission to Proceed on Additional Ground”, the Claimant sought permission to add this ground of challenge. In the event, the Secretary of State did not oppose this and permission was granted. In answer to this new point, the Secretary of State maintained that the decision had indeed been taken by the ECO and adduced a witness statement from Ms Evans dated 14 November 2012 in which she said that it was well understood within the UKBA that a decision on an application for entry clearance in a case such as this is ultimately for the ECO, after taking advice, and that from her dealings with the UKBA’s office in New York she believed that this was the understanding of that office and the ECO.

[51]The hearing before me commenced on 27 November 2012. In the course of the hearing there was considerable focus on certain emails which might be taken to suggest that the operative decision on the Claimant’s application had in fact been taken in London. I therefore pressed Mr O’Connor, who appeared for the defendant ECO and the Secretary of State, to confirm with his clients that a thorough search had been conducted for all relevant emails passing between the London and New York offices of the UKBA. Further checks were made, which resulted in discovery of further relevant emails, in the light of which Mr O’Connor applied part way through the hearing, on the morning of 29 November 2012, for an adjournment to allow time for further investigations and consideration of the unlawful surrender ground. Mr Fransman QC, for the Claimant, did not oppose that application and I granted an adjournment for that purpose. Argument on all other grounds of challenge was concluded before the adjournment, leaving only the unlawful surrender ground over for further evidence and submissions.

[52]The hearing resumed on 29 April 2013, by which time the Secretary of State had determined that the ECO (who had left UKBA’s employment some time previously) could not be traced in the USA and that while the ECM (a British citizen residing in the USA, who had also left UKBA’s employment some time previously) could be traced, she was unwilling to provide a witness statement; and the Secretary of State had filed a second witness statement from Ms Evans in which, upon review of emails passing between the London and New York offices of the UKBA, she now said that she believed that the staff dealing with the Claimant’s case at the New York office (i.e. including the ECO) “understood (wrongly) that the decision was being taken for them by officials in London”. She referred, in particular, to an email from the ECM to Mr Springall dated 4 April 2011, which she had not properly reviewed previously (albeit it had been included, in a redacted version obtained by the Claimant pursuant to a subject access request under the Data Protection Act, in the documents sent with the claim for judicial review), in which the ECM said “Post [i.e. the New York office] did not take the decision as Karen [Evans] implies. As you know, the decision was made by London and the refusal wording drafted by Karen …”. At the resumed hearing on 29 April 2013, Mr O’Connor made it clear that the account given in Ms Evans’ first witness statement had been based on her recollection of her contacts with the New York office, for which she had not reviewed the email traffic between the offices. He also explained that Mr Springall had not focused on this issue in his witness statement, because the unlawful surrender ground was not pleaded at the time he made that witness statement.

[53]I am bound to say that the failure of the Secretary of State to carry out adequate searches for relevant emails once the new unlawful surrender ground was introduced is most unsatisfactory. It is also unfortunate that Ms Evans and Mr Springall gave the evidence they originally did about their understanding that the operative decision was one taken by the ECO without careful reference to the full terms of the contemporaneous emails, especially the email of 4 April 2011, particularly since a redacted version of that email had been appended to the claim for judicial review and it had been referred to expressly by the Claimant (albeit only in passing, and not in support of a distinct ground of challenge) in the Statement of Facts dated 23 May 2011 appended to his claim form.

[54]Mr Seddon, who presented the argument for the Claimant at the resumed hearing on 29 April 2013, made it clear that he did not suggest that either Mr Springall or Ms Evans had deliberately sought to mislead the Court by giving that evidence. I accept the explanation offered on their behalf, that they spoke simply from memory and their general understanding of the UKBA’s decision-making structures, without checking the contemporaneous emails. I think it is understandable that Mr Springall did so (although it would have been better if he had checked the position more carefully), since at the time he made his witness statement there was no unlawful surrender ground in issue in the case. It is also perhaps understandable that Ms Evans did so, even though her first witness statement was made to address the unlawful surrender argument, because she had been directly involved in exchanges with the New York office and presumably at the time of making that statement she felt confidence (though not, in fact, justified) that she had a good recollection and understanding without needing to review in detail email exchanges from that time.

[55]The change in the Secretary of State’s case by April 2013 in relation to the facts in respect of the unlawful surrender argument gave rise to two further issues:(i) should the decision be quashed on the ground that the operative decision-maker (Mr Sedgwick, with advice from members of the Directorate, at the meeting on 14 February 2011) failed to have regard to the documents submitted in support of the Claimant’s application, and

(ii) even though there had been an unlawful surrender or abdication of decision-making function by the ECO to the UKBA London office (and, in particular, to Mr Sedgwick), should the Court decline to grant a quashing order, in the exercise of its discretion?

The grounds of challenge to the decision

[56]The grounds of challenge as finally re-formulated and re-ordered by the Claimant at the hearing are as follows:(1) By refusing to go behind the charges, the decision-maker misconstrued the scope of enquiry required by paragraph 320(19) and thus failed to have regard to and assess cogent evidence discrediting the charges. This includes evidence establishing that the Secretary of State and the UK courts have already considered and accepted, in cases in the same context and involving the same alleged criminality, the presence of political motivation leading the Secretary of State to grant asylum and the UK courts to raise the bar to extradition. In particular, the decision-maker erred by excluding such evidence from: (a) his assessment that the Claimant’s exclusion from the United Kingdom was “conducive to the public good” in the light of the Claimant’s “character” or “associations” as disclosed by the nature of his alleged criminal offending; (b) his assessment that the Claimant’s exclusion was so “conducive” for other reasons, namely: (i) the conduct of the United Kingdom’s foreign relations; (ii) the possibility of protracted extradition or immigration proceedings in the United Kingdom; and (iii) the cost of the same; (c) the exercise of discretion under paragraph 320(19) as to whether, even were exclusion “conducive to the public good”, refusal was the appropriate course on the overall merits.

(2) If the decision-maker did conduct any substantive assessment as to the credence to be given to the charges against the Claimant (which is denied – the decision notice does not so suggest), he failed, contrary to his statutory and common law duty, to give any reasons at all for any conclusion, based upon that assessment, that any credence could be afforded to the charges.

(3) In the absence of any substantive assessment disclosing that some credence could be afforded to the charges, to any extent (and for any part of his decision-making) that the decision-maker took into account “the possibility that the charges might be well-founded as one factor in determining whether…exclusion was…conducive to the public good”, the decision-maker erred because such a “possibility” falls well below the threshold normally required in order to exclude a person (who is otherwise entitled to remain or be admitted to the United Kingdom) on the basis of the protection of the interests of the state and the community – the test of “serious reasons for considering” the applicant to have engaged in the impugned conduct contained in article 1F of the 1951 Refugee Convention is an appropriate touchstone for this threshold.

(4) The decision-maker erred in his approach to the relevance of the alleged criminal offending to the “public interest in the protection of the conduct of foreign relations” in that he: (a) failed to have regard to legally relevant factors, namely the unlawful and malign nature of the interest in the Claimant by the Russian authorities and the public interest in the rule of law; (b) failed to have regard to existing United Kingdom policy regarding human rights abuses committed by the Russian Federation, including in the Khodorkovsky/Yukos affair (i.e. the pursuit of a parallel policy of invariably speaking up against the Russian Federation, while at the same time seeking to improve relations) and to the potential detriment to that policy of acting inconsistently with it in any particular case; (c) failed to have regard to the wider considerations of the conduct of foreign policy in the form of bilateral relations with countries other than the Russian Federation, including European partners and the United Kingdom’s US allies, by adopting an approach inconsistent with: the rule of law; the decisions of the executive and courts in partner jurisdictions (as well as the United Kingdom’s own executive and courts); the public statements of the political leadership in those jurisdictions; and the findings of respected transnational bodies and NGOs; (d) in any event misconstrued the extent of any additional impact upon relations with the Russian Federation that might be caused by the Claimant’s admission when proper regard is paid to: (i) the existing stance of the United Kingdom Government and others in relations to the Claimant’s and similar cases, as referred to above; and (ii) the lack of objection to the Claimant’s admission by those inter-departmental agencies consulted on this very question; and (e) arrived at a conclusion that was unreasonable and disproportionate when proper regard is had to the above factors. Ground (4) overlaps and interrelates with Ground (1)(b), namely the failure to assess the extent to which any credence could be afforded to the charges given, inter alia, the evidence of improper political motive.

(5) In paying regard to expected “protracted proceedings” (extradition and immigration) in the United Kingdom in relation to the Claimant and the impact of the same upon both relations with the Russian Federation and the cost to the public purse, the decision-maker failed to have regard to relevant matters, namely: (a) the evidence that the proceedings were likely to be concluded against the Russian Federation and could be concluded relatively shortly – particularly given the material submitted to the ECO concerning the nature of the charges; (b) the fairly strict timetable that applies for the progress of proceedings under the Extradition Act 2003, even were the matter to proceed to full hearing; (c) that, as a matter of principle, the cost of a person’s access to the Court where necessary in vindication of their fundamental rights, should not be a basis for exclusion of a person prima facie entitled to enter; (d) although they exclude certain applicants on the basis of their becoming a charge on public funds (which is defined) and impose conditions restricting such access, the Immigration Rules contain no such provisions restricting access to the Courts on the basis of such public cost; (e) the option of the Claimant indemnifying the Crown Prosecution Service in respect of its costs, whatever the outcome of any extradition proceedings. Ground (5) also overlaps and interrelates with Ground (1)(b).

(6) The approach of the decision-maker to his decision-making under paragraph 320(19), as apparent from the terms of the decision notice, was defective in that: (a) the decision-maker failed to adopt a structured approach in accordance with the terms of the provision which required him to consider: (i) first, whether the substantive (“non conducive”) criteria were established; and (ii) if they were, whether it was appropriate, in all the circumstances, to refuse entry clearance as a matter of discretion; (b) on the facts, the failure to adopt a structured approach gives rise to the result that it cannot safely be concluded that the decision-maker did in fact exercise his discretion as he was required to do; more importantly, had the decision-maker adopted a structured approach, he may have appreciated the need to assess the evidence as to the political motivation for and reliability of the charges as a matter going to that discretion, even if he did not accept that it was relevant to the substance of paragraph 320(19) (and see as per Ground (1)(c) above).

(7) Insofar as the decision-making did include the exercise of the relevant discretion under paragraph 320(19), the exercise of the discretion was unlawful in that: (a) the decision-maker had regard to an irrelevant matter in that the terms of the decision notice show that he gave weight to the “UK’s international duty not to obstruct the course of justice” as a factor tending against allowing the Claimant’s application, albeit the decision-maker now concedes that that was not a factor that was capable of counting against his application – further, the decision-maker failed to have regard to a relevant matter, namely that, on analysis, the “UK’s international duty” was a factor that should have told in favour of granting the Claimant entry clearance, since admitting him would present the Russian Federation authorities with an opportunity presently denied to them, i.e. the only apparent possibility of progressing the charges that they had laid and the Red Notice that they had procured; (b) the decision-maker misconstrued the scope of paragraph 320(19) (and Part 9 of the Immigration Rules in general) as permitting the exclusion of an applicant on the basis that he may not fulfil the purpose for which they are to be admitted/the conditions to which he would be admitted, whereas in fact any refusal on such a basis is the proper remit of the Rules relating to the substantive category under which the person has applied – as is common ground, Claimant met all of the latter requirements; (c) in considering that the Claimant might not be able to fulfil the purpose for which he otherwise qualified to be admitted (work/business), the decision-maker failed to have regard to the evidence of political motive/lack of credence to the charges and (again) to have regard to the evidence that the proceedings were likely to be concluded against the Russian Federation andcould be concluded relatively shortly – the consequence of that was that it was unlikely that the Claimant would be inhibited from fulfilling his purpose in the United Kingdom and that it was likely that he would be granted bail during any such proceedings as did the similarly situated individuals referred to in the evidence.

(8) The ECO delegated the decision to officials in London, unlawfully surrendering her duty to exercise her own independent judgment over all aspects of the decision-making in the case, notwithstanding that the Secretary of State did not (as she could in principle have done) exercise her powers to direct the Claimant’s exclusion on the grounds that it was “conducive to the public good” under paragraph 320(6) of the Immigration Rules (i.e. the unlawful surrender argument). As explained above, in the course of the hearing the Secretary of State came to concede that there had been an unlawful abdication or surrender of decision-making function by the ECO, who treated herself as acting under direction from the UKBA in London. This Ground gives rise to the two issues set out in para. [55] above.

[57]In addition to this series of grounds of challenge to the decision, the Claimant maintains a distinct legal challenge in relation to his treatment by the United Kingdom authorities. According to the Secretary of State and as indicated in the decision notice, the Claimant had no right of appeal against the decision. The decision notice stated, “Your application does not attract a full right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002.” The Claimant submits that this is wrong, and that on proper construction of the relevant legislative provisions he does have a right of appeal which he ought to be allowed to exercise. This issue (“the appeal right issue”) depends upon interpretation of article 4 of the Immigration, Asylum and Nationality Act 2006 (Commencement No. 8 and Transitional Provisions) Order 2008 (SI/2008/310) (“the 2008 Order”). Analysis General discussion

Analysis

[58]Before I turn to consider the individual Grounds, it is convenient to give an over-view of the legal position.

[59]The Claimant has no right to come to the United Kingdom, apart from such rights or legitimate expectation as he might have that the Immigration Rules should be properly applied in his case. The fact that the Claimant scored sufficient points under the Points Based System as potentially to qualify as a Tier 1 Migrant did not create a prima facie right to be granted entry clearance to come to the United Kingdom, because it was also a requirement that “The applicant must not fall for refusal under the general grounds for refusal …” (paragraph 245C(b)). In assessing whether the exclusion of the Claimant from the United Kingdom was “conducive to the public good” for the purposes of paragraph 320(19), there was no presumption that the Claimant ought to be admitted to the United Kingdom. The decision-maker under paragraph 320(19) has a wide power of evaluative judgment to assess what might or might not be conducive to the public good and a wide discretion to decide whether it is right to exclude an applicant for entry clearance on the grounds of his assessment that such exclusion would be conducive to the public good, as assessed by him.

[60]The analogy which the Claimant seeks to draw with the test applicable under Article 1F of the 1951 Refugee Convention (see Ground (3)) is not apposite. The threshold applicable under Article 1F before it can be concluded that an individual is excluded from the humanitarian protection contained in that Convention is comparatively high, precisely because individuals do prima facie have the benefit of rights under that Convention and in view of the importance of the humanitarian protection afforded by those rights, neither of which is a feature of the regime under the Immigration Rules in the present context. It is to be emphasised that the Claimant does not need to come to the United Kingdom to be protected against possible mistreatment by the Russian authorities; he has such protection in the USA.

[61]In dealing with the Claimant’s application, the decision-maker had the difficulty of working out how to address the serious charges which were outstanding against him in Russia in respect of which the Red Notice had been issued by Interpol. A major theme in the Claimant’s submissions is that the decision-maker should have completely discounted the charges against him, on the basis that there were strong reasons for thinking that they were politically motivated. However, I consider that the decision-maker was entitled to treat the charges as possibly having some good basis in fact, even if there had been a political motive for them to be brought forward against the Claimant as they were. The political motivation for the bringing of the charges and the considerable risk as a result that the Claimant might not have a fair trial if returned to Russia could well provide strong grounds for concluding that, if the Claimant was in the United Kingdom, he ought not to be removed or extradited to Russia (which is what had happened in the case of other individuals in the United Kingdom who faced charges in Russia related to their involvement with Yukos). But it does not necessarily follow from this that the charges themselves (whether against the Claimant or the related charges against Mr Khodorkovsky, for which he had been convicted in Russia) are without any substance: see para. [25] above. The decision-maker was entitled to conclude that the Claimant had failed to demonstrate that the charges were entirely without substance.

[62]The Russian courts had scrutinised the charges against the Claimant and had held that they had sufficient substance to merit being allowed to proceed. On their face, the rulings of the Russian courts in relation to the Claimant appear unexceptional and impartial assessments of the material available to those courts.

[63]The Claimant’s principal contention was that the charges against him were without any substance in the same way that the charges against Mr Khodorkovsky were without any substance. Mr Khodorkovsky had been convicted after a trial, on the basis of a very full judgment (so I was told) going into the facts of his case. I was not shown the judgment in relation to the conviction of Mr Khodorkovsky, nor was the ECO or the Secretary of State, on the grounds that it was too long and detailed to be easily digested. When I questioned how in these circumstances I was to make an assessment whether there was any possible substance in the charges against either Mr Khodorkovsky or the Claimant, Mr Fransman QC for the Claimant told me that he was not inviting the Court to decide whether the charges had merit or not. By contrast, he submitted that the decision-maker should have carried out an assessment of the merits of the charges (although he did not allege that the decision-maker should have found them to be wholly baseless), or otherwise should not have taken them into account at all.

[64]I do not accept this submission. It seems completely unreal to me. The Claimant and those acting for him had not equipped the ECO and the Secretary of State with information which would enable them to make any informed attempt at an assessment of the merits, or otherwise, of the charges against Mr Khodorkovsky or the Claimant. They were in no better position so far as that was concerned than was I at the hearing. Those acting for the Secretary of State were entitled to take the view that it was not a sufficient basis for discounting the charges altogether just to point to political motivation in relation to the bringing of the charges and to make very general allegations about the possibility of corruption in the Russian judicial system. Even had the ECO and the Secretary of State been provided with copies of the judgment against Mr Khodorkovsky and detailed comments on it and the evidence in the case and detailed comments on the charges and evidence against the Claimant, it would not have been realistic to expect them to undertake a mini-trial of either Mr Khodorkovsky or the Claimant on the basis of such documents to arrive at a clear conclusion as to their guilt or innocence. The position in which the ECO and the Secretary of State found themselves, awkward though it might be, was that charges had been filed against the Claimant which the Russian courts (albeit courts which might possibly be suspect in terms of their independence from the executive) had scrutinised and determined to have sufficient merit to justify them being taken forward, which charges were closely related to charges against Mr Khodorkovsky in relation to which he had been tried and found guilty (albeit, again, by a court which might possibly be suspect in terms of its independence – though I was not shown any international criticism specifically alleging that the court had been corrupt). The charges against the Claimant had not been subjected to detailed assessment at a trial, but nor was there any real possibility that they could be, since for very understandable reasons he would not return to Russia.

[65]There appeared, therefore, to be objective grounds for thinking that there was a significant possibility that the Claimant might have been involved in some way in the serious wrong-doing alleged against him. The ultimate truth or falsity of the charges could not be determined by the decision-maker. The United Kingdom authorities had done nothing to bring this state of affairs into existence; nor were they in a position to resolve the factual issues underlying the charges against the Claimant and Mr Khodorkovsky. The decision-maker was entitled to take the view referred to in paragraph 10 of Mr Springall’s witness statement, that whilst it could not be assumed that the charges were well founded, it was possible that they were. Since there was a real risk that they were well founded, the decision-maker acting for the Secretary of State was entitled to take this into account, as was done, as a factor indicating that the exclusion of the Claimant from the United Kingdom would be conducive to the public good – i.e. he could legitimately take the view in the circumstances that it would be conducive to the public good to avoid taking the risk of admitting someone who might be prepared to engage in serious criminal activities. This factor cannot be dismissed as something irrelevant to the judgment which the decision-maker had to make.

[66]Mr Fransman also criticised the decision notice, as giving insufficient reasons for taking into account the seriousness of the charges against the Claimant. I do not accept this. I do not think that insufficient reasons were given. The decision notice referred to the fact that the charges had been reviewed and allowed to be issued by the Moscow City Court, the same court which had previously dismissed other accusations against the Claimant (which gave grounds for thinking that its decisions could not be dismissed simply as corrupt and biased against the Claimant). It also stated (correctly, in my opinion) that it was not appropriate for the decision-maker to prejudge the charges, i.e. to make a determination as to their truth or falsity. By natural inference, that left the position as set out above: there was a real risk that the Claimant might have been involved in serious criminal activities.

[67]A decision notice of the sort under review in this case is not to be construed like a statute. The standard to be applied in relation to the reasons given is the familiar one set out by Lord Brown in South Buckinghamshire DC v Porter (No. 2)

[2004] UKHL 33

;

[2004] 1 WLR 1953

, at [35]-[36]. I consider that the decision notice gave a sufficient indication of the decision-maker’s reasoning process on this particular point and generally, in accordance with that standard. The reasons for the decision were intelligible and adequate. They enabled the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues.

[68]I consider that the reasons set out in the decision notice properly and adequately summarised the further reasoning set out in the February Submission and in paragraphs 8 and 9 of Mr Springall’s witness statement, set out above. Fair reference was made in the decision notice to the problems which the United Kingdom would experience if the Claimant were allowed to enter and the police had to consider whether to arrest him and seek his extradition pursuant to the Red Notice. Counsel for the Claimant emphasised that in the February Submission the advice from the FCO was only that the admission of the Claimant “would be likely to be an irritant to bilateral relations, but one that the FCO consider to be manageable.” In my view, however, the decision-maker for the Secretary of State was entitled to take the view that the FCO’s assessment that the admission of the Claimant would be an irritant in the United Kingdom’s relations with Russia (albeit a manageable one) was a factor which tended to indicate that it would not be conducive to the public good to allow him to enter the United Kingdom. An irritant in bilateral relations with another country is something which has a negative impact on the public good, for all that the impact may be at the milder end of the scale. The objection of SOCA was stronger still: its stated preference was that a visa should be refused. It has its own relations with police agencies in other countries, including Russia, which are important in securing their assistance to combat serious crime. Again, the decision-maker was entitled to take their concerns about the impact on their bilateral relations with their counterparts in Russia as a factor which tended to indicate that it would not be conducive to the public good to allow the Claimant to enter the United Kingdom. Neither of these factors can be dismissed as irrelevant to the judgment which the decision-maker had to make.

[69]Counsel for the Claimant submitted that the decision notice gave excessive weight to the impact of “protracted proceedings” if the Claimant were arrested on arrival in the United Kingdom, pursuant to the Red Notice. It was submitted that extradition proceedings need not be protracted.

[70]I do not agree that the decision notice indicated any error of assessment in relation to extradition proceedings. If extradition proceedings took place, as they would if the police acted on the Red Notice (and the decision notice stated in terms that a Red Notice would not be ignored), there would plainly be a risk that such proceedings could exacerbate strains in relations with the Russian authorities, as the courts reviewed and commented on the state of affairs in Russia and assessed the Claimant’s allegations regarding the political motivation for the charges against him and Mr Khodorkovsky and corruption in the Russian judicial system. There would also plainly be a risk that extradition proceedings which went into the evidence on these matters could be protracted, making it more difficult to smooth over and repair any strains while they continued. The decision notice did not contain a precise assessment of what would necessarily happen (nor, realistically, could it), but rather a fair summary of the sort of negative risks for the United Kingdom’s interests which would arise if the Claimant were allowed to enter.

[71]There is no doubt that the United Kingdom authorities, including the courts and the Secretary of State, would have acted fearlessly and effectively to assess any risk to the Claimant (including, if it was necessary to do so and justified on the evidence available, making severely critical assessments of the position in Russia) and to protect him as appropriate if he was in the country. That is, indeed, what both the United Kingdom courts and the Secretary of State had done in relation to Russian nationals in the United Kingdom defending themselves against removal or extradition to Russia, as referred to above. But it is one thing to say that these things must be done, even at a risk of placing strains on relations with another country, when an individual is already in the United Kingdom and it has obligations to protect them; it is quite another to say that the United Kingdom should place itself into a situation where such strains will arise, and invite such harm to its relations with another country, by allowing an individual to come to the country when it owes no obligation to admit them or to protect them.

[72]That, in my judgment, is the position in relation to the Claimant. The decision-maker on behalf of the Secretary of State was entitled to assess that allowing him to come to the United Kingdom would give rise to avoidable strains upon the United Kingdom’s relations with the Russian authorities, and that this also was a factor which indicated that it would be conducive to the public good to exclude him, so as to avoid such an unnecessary detrimental impact on those relations. The legitimacy of giving weight to this factor is underwritten, in my view, by the way in which it was taken into account alongside a careful assessment of the impact of a refusal on the Claimant. He was working in the USA and would continue to do that - he did not suggest that entry to the United Kingdom was vital to his livelihood or anything more than a commercial convenience for him. Moreover, I consider that it was fair for the decision-maker to assess that if the Claimant were allowed to enter and was then arrested pursuant to the Red Notice and caught up in the potentially huge distraction of extradition proceedings against him (in the course of which there would be a chance he could be detained in custody, to prevent him fleeing to the USA), the practical benefits he would gain in terms of being able to work effectively in the United Kingdom pursuant to his visa might well be severely attenuated.

[73]Finally, particularly at a time of huge strains on the public finances and austerity, I also consider that the decision-maker was entitled to give weight to the consideration that such extradition or associated proceedings would be likely to give rise to a cost to the public purse in various ways (the costs of the extraditing authorities and defence, to the extent not recovered from the parties, and the costs associated with the provision of court time for such proceedings). This was an avoidable and unnecessary cost, which the United Kingdom owed the Claimant no obligation to take on.

[74]In this regard, I should refer to another important theme in the submissions for the Claimant, namely that the principle of the rule of law meant that the decision-maker for the Secretary of State should have completely discounted and given no weight to the outstanding charges against the Claimant. Otherwise, so it was said, the United Kingdom would be furthering in some relevant sense the unlawful persecution of the Claimant by the Russian authorities, by allowing them in effect to interfere with his freedom of travel and ability freely to carry on his business.

[75]I do not accept this submission. The United Kingdom authorities in no way endorsed the treatment of the Claimant by the Russian authorities by taking the decision they did. They simply reacted to the difficult situation in which they found themselves when the Claimant made his application for leave to enter the United Kingdom. They had no obligation to admit the Claimant in order to afford him protection or to further his commercial interests. Provided they acted lawfully in the exercise of their public law powers, in accordance with the usual principles of domestic public law, they properly and fully respected the principle of the rule of law: see R (Corner House Research) v Director of the Serious Fraud Office

[2008] UKHL 60

;

[2009] 1 AC 756

, para. [41]. Adapting what Lord Bingham of Cornhill said there to the circumstances of this case:

“The issue in these proceedings is not whether [the] decision was right or wrong, nor whether [the Court] agrees with it, but whether it was a decision which [the decision-maker] was lawfully entitled to make. Such an approach involves no affront to the rule of law, to which the principles of judicial review give effect: see R (Alconbury Developments Ltd ) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para. 73, per Lord Hoffmann”

. Subject to the unlawful surrender ground, this is how I find the decision-maker for the Secretary of State proceeded in this case.

[76]The Claimant also complained that the decision-maker erred by placing reliance on the factually incorrect statement about the attitude of the US authorities in paragraph 3 of the Annex to the February Submission (paras. [38] and [48] above). It is not altogether clear to me that paragraph 3 of the Annex is necessarily inconsistent with the contents of the letter of 2 September 2011 from the US authorities. But whether it is or it is not, I find that this complaint is not made out. The decision notice stated in terms that the decision-maker was not privy to the decision of the US authorities in agreeing to grant the Claimant US citizenship, and that he relied solely on the evidence presented to him. In my view, this is a clear statement that the decision-maker did not try to assess the reasons or thinking of the US authorities as a factor relevant to his decision, and hence did not rely on that paragraph in the Annex. This also accords with the evidence of Mr Springall about the course of the discussion at the meeting on 14 February 2011.

[77]In my judgment, in the context of the wide power of evaluation conferred by paragraph 320(19), all the factors which the decision-maker took into account as relevant considerations tending to indicate it would be conducive to the public good to exclude the Claimant from the United Kingdom were factors which he could, in his discretion, take into account and give weight to. They were lawfully taken into account as part of a cumulative assessment. It cannot be said that the assessment made was irrational. The fact that the decision-maker gave no or less weight to other factors which he could lawfully have chosen to take into account, if he thought it appropriate to do so, does not render the decision unlawful: see Corner House Research at [40] per Lord Bingham:

“A discretionary decision is not … vitiated by a failure to take into account a consideration which the decision-maker is not obliged by the law or the facts to take into account, even if he may properly do so: CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 183.”

[78]The Claimant also criticised the decision notice for not containing separate consideration whether, even if the exclusion of the Claimant was conducive to the public good, it “seem[ed] right” (in the language of paragraph 320(19)) to refuse him leave to enter. I do not consider that there is anything in this point. The decision notice contained reasoning which was not simply directed to whether exclusion of the Claimant would be conducive to the public good, but also weighing the impact (or lack of impact) of exclusion on the Claimant. In my view, it is clear from the decision notice that the decision-maker did indeed make an assessment whether it “seemed right” to refuse leave to enter on the ground that it was conducive to the public good.

[79]However, the unlawful surrender ground is now conceded by the Secretary of State to be made out. I consider below the additional issues to which it gives rise.

[80]I now turn to consider the specific Grounds of challenge put forward by the Claimant, which I can do more shortly in light of the general discussion above. I will then address the appeal right issue.

Ground (1): Failure to treat the charges against the Claimant as discredited

[81]I do not accept that the decision-maker erred in his assessment of what was conducive to the public good by refusing to simply treat the charges as having no substance: see paras. [23]-[27] and [61]-[65] above. On the information provided to him, and having regard to the nature of the case against the Claimant, there was no sensible or viable way in which the decision-maker could assess whether the charges were without substance or not on the particular facts. The Claimant had not demonstrated that the charges were clearly without substance, and the decision-maker was entitled to proceed on the basis that there was a possibility that they did have substance.

[82]In some situations, having regard to unproven allegations of criminal wrongdoing may not be permissible. However, in the circumstances of the present case – particularly where the serious criminal charges in question had been scrutinised and allowed to proceed by the Moscow City Court and where the decision-maker and the United Kingdom authorities were not in a position to resolve disputes about the underlying facts - there were good reasons, as explained above, which made it just and fair for the decision-maker to have regard to the criminal charges against the Claimant and to give them the limited weight he did. In my view, in the context of this case, this was an entirely lawful approach for the decision-maker to adopt: see R v Secretary of State for the Home Department, ex p. Santillo

[1981] 1 QB 778

, at 787A-B per Comyn J.

[83]Mr Fransman pointed to the decision of the Upper Tribunal (Immigration and Asylum Chamber), unrep., Appeal No. IA/21631/2011, 5 April 2012, in Mahajna v Secretary of State for the Home Department in which at [70] the Tribunal found that the Secretary of State had erred in taking into account an outstanding indictment against the appellant when deciding to make a deportation order against him. However, the decision turned on the particular factual circumstances in that case, which were very different, and does not lay down any general statement of legal principle. In the particular circumstances of the present case, it does not support the Claimant’s claim.

Ground (2): Failure to give reasons for the decision-maker’s substantive assessment of charges

[84]There was an obligation for the decision-maker to give a statement of the reasons for the decision: regulation 5(1)(a) of the Immigration (Notices) Regulations 2003. As set out above, the decision-maker did not attempt to make a final substantive assessment whether the charges were true or false on the facts. It was not incumbent on him to do so. Proper and sufficient reasons were contained in the decision notice to explain why the decision-maker considered that the charges should not simply be treated as discredited: see para. [66]-[68] above. Ground (3): Proceeding on the basis that there was a possibility that the charges might be well-founded fell below the threshold required in order to exclude a person

[85]It was in the context of Ground (3) that the Claimant submitted that the test applicable in relation to Article 1F of the 1951 Refugee Convention is appropriate in the present context as well. I have already rejected that submission: see para. [60] above.

[86]The Claimant also referred to NA & Others (Cambridge College of Learning) Pakistan

[2009] UKAIT 00031

, in which, at paras. [97] et seq., the Asylum and Immigration Tribunal considered the burden and standard of proof applicable under paragraph 322(1A) of the Immigration Rules (leave to remain to be refused “where false representations have been made or false documents or information have been submitted …”). At [98] the Tribunal referred to authority to the effect that in relation to the general grounds of refusal under the Immigration Rules the burden of proof rests on the respondent Secretary of State. In the context of application of paragraph 322(1A), at [101] the Tribunal held that the Secretary of State would “need to furnish evidence of sufficient strength and quality and he (and the Tribunal) would need to subject it to a ‘critical’, ‘anxious’ and ‘heightened’ scrutiny.” The Claimant relied on this in support of his submission that the decision-maker had had an insufficient basis to justify the adverse decision taken under paragraph 320(19).

[87]I do not accept this submission. The guidance in NA & Others (Cambridge College of Learning) and the authorities to which it refers is apposite in relation to many of the general grounds for refusal of an application for entry clearance set out in Part 9 of the Immigration Rules, where (as for paragraph 322(1A) or the similar provision in paragraph 320(7A)) the ground for refusal depends on some underlying factual position (“false representations have been made” or, as in paragraph 320(7B)(d), “using deception in an application for entry clearance …”). But in my view the issue which arises under paragraph 320(19) (or the similar provision in paragraph 320(6)), whether a person should be excluded on the ground that this “is conducive to the public good”, is in a different category. The ground of refusal turns not on the existence of some underlying factual position involving the applicant, but on whether the decision-maker holds an opinion about what is conducive to the public good and makes a judgment about what it “seems right” to do in the light of that opinion. Paragraph 320(19) confers a wide discretion and power of evaluation and assessment on the decision-maker to reach a judgment on what is conducive to the public good and on what it “seems right” to do. For this ground of refusal, the issue is simply whether the decision-maker has formed the relevant opinion and made the relevant judgment without breaching any general rules of public law and that the opinion and judgment are ones he could rationally reach.

[88]In the context of this Ground of challenge, the only relevant test is a rationality test. I have concluded above that the decision-maker could rationally form the view that it was conducive to the public good to exclude the Claimant from the United Kingdom and that it was right to do so. So this Ground of challenge is dismissed. Ground (4): Failure to have regard to relevant factors; error in assessment of the impact on relations with Russia if the Claimant was granted leave to enter; unreasonable and disproportionate conclusion

[89]I also consider that this Ground of challenge, in all its various aspects, falls to be dismissed.

[90]In respect of the wide power of evaluation and assessment conferred by paragraph 320(19), it may well be that the sorts of factors identified at sub-paragraphs (a) to (c) of this Ground set out above could potentially be treated as relevant considerations (or not), at the discretion of the decision-maker in a case of this kind. But I do not consider that the decision-maker in the present case failed to have regard to any relevant consideration within the areas identified which he was obliged by law to take into account.

[91]As to sub-paragraph (a), it is clear that the decision-maker did have regard to the Claimant’s representations regarding the unlawful and malign nature of the interest in the Claimant by the Russian authorities, and made a rational assessment of the weight to be given to the charges brought against him. The decision-maker was not obliged in law wholly to discount those charges, on rule of law grounds. Subject to the unlawful surrender ground, the decision-maker acted in accordance with the requirements of the principle of the rule of law, as explained above.

[92]Counsel for the Claimant sought to suggest that by taking a decision to exclude the Claimant on the basis of the charges against him in Russia, the decision-maker condoned or somehow adopted unlawful conduct on the part of the Russian authorities, in breach of rule of law principles. In my view, there is no warrant for this suggestion. The decision-maker simply acted to avoid the various detriments to the public good referred to above which could be expected to arise if the Claimant were given leave to enter. The decision-maker did not thereby make the acts of the Russian authorities those of the United Kingdom in any relevant sense.

[93]This is not a case of the United Kingdom authorities failing to take effective action to combat violation of the rule of law within the United Kingdom’s own territory, and hence to that extent under their control (by contrast with cases such as R v Coventry City Council, ex p. Phoenix Aviation

[1995] 3 All ER 37

, DC). In the present case, the United Kingdom authorities had to take the external world as they found it and adapt national policy and decision-making in the light of external circumstances. They respected the principle of the rule of law by acting in accordance with the principles of domestic public law: see para. [75] above.

[94]Counsel for the Claimant sought to support his submissions by reference to A v Secretary of State for the Home Department (No. 2)

[2005] UKHL 71

;

[2006] 2 AC 221

, in which the House of Lords held that evidence obtained by torture by foreign authorities could not be relied upon in English proceedings. In my judgment, however, that case is far removed from the present, and the principles stated in it are specific to its particular context. As Lord Hoffmann expressed the position, at [82], “The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.” In the present case, the decision-maker did not make use of evidence obtained by torture and the principle in A (No. 2) has no application. Indeed, in my view, the decision-maker did not in any real sense make use of the Russian criminal charges against the Claimant for his own purposes; he simply reacted in a lawful and legitimate way to an awkward and difficult situation for which neither he nor the United Kingdom was responsible, and in relation to which national policy and considerations of the public good were inevitably engaged.

[95]As to sub-paragraph (b), the Claimant drew attention to various statements by the British Prime Minister and Foreign Secretary relevant to the case of Yukos and Mr Khodorkovsky. For example, in exchanges in the House of Commons on 22 November 2010, when the Prime Minister was asked whether he would raise human rights issues, in particular in respect of the trial of Mr Khodorkovsky, with the Russian government, he replied:

“I take [this] very seriously. We are trying to have better relations with Russia – that is, I think, in our interest – but without trying to gloss over the bilateral impediments to those relations … The impediments to relations between Britain and Russia are well known, but that does not mean that we should fail to speak about these and other things and try to have a slightly better relationship than we have had up to now.”

[96]In my view, there was no incompatibility between the decision taken in relation to the Claimant’s application for entry clearance and general government policy, as so expressed. It was well open to the British government to go on protesting to the Russian authorities about unfairness in the trial of Mr Khodorkovsky while at the same time deciding that it would not be conducive to the public good to admit the Claimant, thereby avoiding exacerbating the strains on relations which the government was seeking to ameliorate.

[97]In any event, the decision on how to proceed in relation to the Claimant’s application in the context of the awkward position which had arisen and the difficulties that created for the proper handling of the United Kingdom’s relations with Russia was very much a matter for assessment at a high level within government, which was the very reason the issue had been referred by the ECO to UKBA head office in London, why the question there was referred to the Directorate and the head of the UKBA and why they in turn took advice from the relevant government department and agency, the FCO and SOCA. It was for Mr Sedgwick and the Directorate to decide, with the benefit of advice from the FCO and SOCA, what implications (if any) wider government interests had for the decision to be taken. They were entitled to assume that the FCO would be fully apprised and up to date with the United Kingdom’s current policy stance in relation to Russia and Mr Khodorkovsky’s case, and to rely on the advice given by them. The FCO did not suggest that refusal of the Claimant’s application would be inconsistent with wider government policy.

[98]As to sub-paragraph (c), the decision-maker did have regard to the issue of relations with other countries, in deciding that a Red Notice was not something that the United Kingdom authorities would ignore. The Interpol Red Notice system depends on international co-operation, and it is clear that the United Kingdom did not wish to jeopardise the network of co-operation by being seen to ignore such a notice. Beyond this, the decision-maker did seek advice from the appropriate source within government, the FCO, to determine whether there were any wider considerations deriving from the conduct of foreign policy which might have a bearing on the assessment of the public good, and the FCO did not suggest that there were. Particularly in the light of the advice from the FCO, there was no obligation on the decision-maker to give distinct consideration to the wider matters referred to by the Claimant.

[99]The claim that an error of law arose because the decision-maker misconstrued the impact upon relations with the Russian Federation that might be caused by the Claimant’s admission (sub-paragraph (d)) is ill-founded. The decision-maker had obtained advice from the bodies in government best placed to assess the impact upon relations with the Russian authorities, the FCO and SOCA. There is no sound basis for thinking that there was any error of assessment on their part or on the part of the decision-maker, having regard to their advice.

[100]As to sub-paragraph (e), I have explained above why, in my judgment, the conclusion of the decision-maker was rational and why rationality is the standard to be applied in this context. I would add that, even if the relevant standard was a proportionality standard, I think the decision-maker made a proportionate assessment of the facts and came to a proportionate conclusion.

Ground (5): Paying regard to the possibility of protracted proceedings

[101]I also dismiss this Ground of challenge. As explained above, the decision-maker did not err in law in giving weight to the possibility that there might be extradition or immigration proceedings, nor in assessing that such proceedings might be protracted. The decision-maker was entitled to make the assessment that there was a real risk that both things might happen.

[102]I do not accept the submission (sub-paragraph (c) of this Ground) that the Claimant was prima facie entitled to enter the United Kingdom, nor that court proceedings in the United Kingdom were necessary to vindicate any of his “fundamental rights”. Under paragraph 245C, he was only entitled to enter if none of the general grounds for refusal applied, and it was decided that the general ground for refusal in paragraph 320(19) did apply. He did not need to come to the United Kingdom to secure protection of his fundamental or human rights: they were being protected by the United States. In reality, he wished to come to the United Kingdom for reasons of commercial convenience, and the decision-maker was entitled to conclude that his interest in that respect was not sufficiently strong to justify the cost to the public purse if he was given leave to do that, when taken with the other detriments pointing in favour of his exclusion. Ground (6): Failure to adopt a structured approach to the exercise of discretion, separating out the “non-conducive” question from the question whether it was appropriate to refuse entry clearance as a matter of discretion

[103]I dismiss this Ground of challenge as well: see para. [78] above. It is clear from the decision notice that both questions were addressed. In the circumstances of the present case, there was no hard and fast division between matters relevant to what was conducive to the public good and the exercise of discretion under the rule. The strength of the “conducive” grounds directly affected the judgment to be made in exercise of the discretion. The decision notice is not hard to understand and reveals no error of approach. The reasoning of the decision-maker, as explained in the decision notice, did not have to be any more “structured” than it was.

Ground (7): The exercise of the relevant discretion under paragraph 320(19) was defective

[104]In my judgment, none of the three sub-grounds of challenge relied upon under this Ground is valid.

[105]In relation to sub-ground (a) (having regard to an irrelevant matter, by taking into account “the UK’s international duty not to obstruct the course of justice”), there was debate at the hearing regarding the meaning of this consideration in the context of the decision notice. In his Skeleton Argument, Mr O’Connor suggested an interpretation of this phrase to the effect that it was being put forward as a factor which counted in favour of admitting the Claimant (i.e. so that he could be arrested and extradited), but he retracted that suggestion in the course of the hearing. I found that suggestion most implausible, on a fair reading of the decision notice. His final submission at the hearing regarding the meaning of this phrase made far more sense in the context of the decision notice, read as a whole, and I accept it. Mr O’Connor’s submission was that this phrase – which appears in the context of a series of reasons counting against the Claimant’s application (“the seriousness of the charges; … the public interest and the protection of the conduct of foreign policy”) - was a reference to the usual duty of co-operation which the United Kingdom is under to act upon an Interpol Red Notice, and marries up with the later statement, “The UK will not ignore a red notice from Interpol.” The fact that the United Kingdom will not ignore a Red Notice was the basis for the explanation in the paragraph in the decision notice starting with that sentence of some of the reasons why the exclusion of the Claimant would be conducive to the public good. On this reading of the reasons given in the decision notice, there is nothing odd or unlawful in the decision.

[106]I do not consider that the decision-maker erred in failing to treat the Red Notice or the United Kingdom’s international duty not to obstruct the course of justice as positive reasons to admit the Claimant, so that he could be arrested and extradited to face criminal proceedings in Russia. The whole thrust of the Claimant’s argument was that he could not properly be sent to Russia, because he would be subjected to an unfair trial there. It lies ill in his mouth now to say that the decision-maker should have allowed him to enter to achieve the result that he was arrested and sent to Russia. There was no obligation on the decision-maker to make an assessment, contrary to all that the Claimant himself was saying, that the Claimant ought to be admitted in order to achieve this result. Even though this could have been a relevant consideration, had the decision-maker decided in his discretion to treat it as such, there was no mandatory requirement that he do so and so no error of law on his part by omitting to do so: see Corner House Research at [40]. The past decisions of the courts in the United Kingdom in relation to others involved with Yukos, to which the Claimant referred, meant that it was improbable that this would be the eventual outcome. The United Kingdom had no international duty of co-operation which extended to trying to induce a person to enter its territory in order to be arrested.

[107]As regards sub-paragraph (b) (error in having regard to the fact that the Claimant might not be able to fulfil the purpose for which he was to be admitted), I do not consider that this ground of challenge is made out. On a fair reading of the decision notice, the decision-maker was referring to the possible limitations on the benefit which the Claimant might receive if he were allowed to enter. In my view, that was an entirely lawful and valid matter to be taken into account when making the assessment whether it “seemed right” that leave to enter should be refused on the ground that exclusion from the United Kingdom was conducive to the public good. If the benefit to the Claimant, if admitted, might be limited as explained, and the detriment to the public good would be significant, these were relevant matters supporting the overall conclusion that his application for leave to enter should be refused.

[108]As regards sub-paragraph (c), the decision-maker’s assessment of the possible ways in which the Claimant might be hampered in deriving benefit from the grant of leave to enter (including the possibility that he might be detained), and that any proceedings might be protracted, cannot be impugned as irrational or in any way unlawful. Although others involved with Yukos had been granted bail, they were Russian nationals whose scope to leave the United Kingdom may have been limited. The Claimant, on the other hand, was a US citizen entitled to return to the USA at any time, and that was a matter which could be relevant to a decision whether he should be granted bail or not.

Ground (8): The unlawful surrender ground

[109]The Secretary of State now concedes that there was an unlawful surrender, abdication or delegation of decision-making authority on the part of the ECO, who treated herself as being subject to a direction from UKBA’s head office in London to refuse the Claimant’s application for leave to enter (although those in the London office believed that they were merely providing advice to the ECO, and that the ultimate decision would be for her, in accordance with the decision-making structure provided for by the Immigration Rules in relation to paragraph 320(19)). Nonetheless, the Secretary of State submits that this is a case in which the court should exercise its discretion to refuse to make a quashing order in relation to the decision. It is common ground that the court has a discretion whether to grant relief or not, and that the discretion to refuse relief should only be granted in exceptional circumstances: see e.g. R (Edwards) v Environment Agency

[2008] UKHL 22

;

[2009] 1 All ER 57

, in particular at [62]-[65] per Lord Hoffmann.

[110]In this context, the Claimant submits that the effective decision-maker (Mr Sedgwick, acting on the basis of the February Submission and in discussion with other UKBA officials at the meeting on 14 February 2011) did not have sufficient information available to him to allow me to treat his decision as one which was properly considered in public law terms. The Secretary of State accepts that Mr Sedgwick did not personally read the covering letter and materials submitted by the Claimant in support of his application. However, she submits that Mr Sedgwick had an adequate and proper briefing by means of the February Submission to allow him to make the decision (give the advice) on the application of paragraph 320(19) which he did.

[111]The issue on this part of the case is whether the February Submission provided Mr Sedgwick with a sufficient basis on which he could lawfully decide what he did, namely to advise the ECO to refuse the Claimant’s application on “non-conducive” grounds under paragraph 320(19) (which advice the ECO wrongly understood to be a direction). I should observe that the Claimant had not complained at the first part of the hearing, in November 2012, that Mr Sedgwick had been inadequately briefed to enable him to provide the advice he did to the ECO. It is difficult to see how the position is any different now it is appreciated that the advice he gave to the ECO was misunderstood by her to be a direction from him. The issues he addressed were the same, whether the view which he formed and which was passed on to the ECO constituted advice regarding the application of paragraph 320(19) or a direction regarding the application of that paragraph.

[112]In my judgment, whether the view of Mr Sedgwick in relation to that is to be regarded as advice or a direction, the February Submission, combined with the discussion at the meeting on 14 February 2011 described in Mr Springall’s witness statement, provided an adequate and sufficient briefing for Mr Sedgwick on the critical points which had to be taken into account. There is no criticism of Mr Sedgwick for not personally reading all the underlying material sent by the Claimant. It would not be feasible for the head of a body like the UKBA to read all the background documents for the many decisions he has to take. The pressures on his time mean that it is necessary for someone in his position to read submissions and reports prepared for him, giving a summary digest of the information which has to be taken into account (the same is true for a range of decision-makers who face similar pressures on their time, such as government ministers, senior civil servants, local authority council members and executives and so forth). The February Submission drew Mr Sedgwick’s attention to all the important salient details of the Claimant’s case in a fair and even-handed manner. The February Submission and the discussion at the meeting properly equipped Mr Sedgwick to make the decision in issue.

[113]I turn, then, to the question whether this is a case in which it would be just and appropriate for the Court to exercise its discretion to refuse relief on the basis of Ground (8), having dismissed all the other grounds of challenge to the decision. Here, the onus is firmly on the Secretary of State to persuade me that this is the right course, on the grounds that this is an exceptional case. I have given anxious consideration to this question.

[114]Mr O’Connor acknowledges that the present case is not so strongly exceptional as in the Edwards case. Nonetheless, he submits that the present case is exceptional and that refusal of relief in the discretion of the Court is justified. He submits that had things been done properly, with the ECO understanding that the view from the UKBA’s head office in London regarding application of paragraph 320(19) was tendered as advice rather than a direction, it is still obvious that the same decision would have been taken for the same reasons. The error of law can therefore fairly be described as an error of procedure rather than substance, and moreover one which only arose out of inadvertence and a misunderstanding between the London office and the ECO rather than out of any deliberate attempt to subvert the proper decision-making structure under the Immigration Rules. As a matter of substance, the relevant issues under paragraph 320(19) were considered by the persons best placed to do so and to determine the relevant question, whether it was right to refuse leave to enter on the ground that exclusion from the United Kingdom was conducive to the public good, namely the Directorate and the head of the UKBA at the time. The issues were considered by that group with specific reference to the particular facts of the Claimant’s case (by contrast with what had happened in NA (Iraq), in which the Secretary of State had issued blanket guidance to ECOs regarding the weight to be given to a particular form of Iraqi identity document, regardless of information and evidence about individual cases which might be put before ECOs dealing with applications on their facts). In all the circumstances, justice does not require the grant of relief on the basis of the unlawful surrender argument; and in reality quashing the decision on this ground would represent an unmerited windfall for the Claimant.

[115]Against all this, Mr Seddon submitted that there were no good reasons which justified the refusal of relief where it was conceded that the Claimant had made out a good ground of challenge to the decision. The Secretary of State could have directed a refusal of the Claimant’s application under paragraph 320(6) but had not done so, leaving the matter instead to be dealt with under paragraph 320(19), where the relevant decision on the “conducive” grounds was one for the ECO to take, even if with the benefit of advice from others. The Court should not endorse the very illegality identified under this Ground, by assuming that the ECO would simply have acted in accordance with the advice from London in a manner broadly equivalent to abdicating her responsibility under the Rules. Nor, on the facts, could the Court say that the ECO would inevitably have come to the same decision if she had not unlawfully abdicated her personal decision-making role. The issue whether it would be conducive to the public good to exclude the Claimant had been regarded as finely balanced in the UKBA in London, and the recommendation in the February Submission had been in favour of granting the Claimant’s application. The February Submission had been sent to the ECO, and if she had appreciated that it was for her to decide what to do, it was quite possible that she would have reached a decision in line with the recommendation in the February Submission and contrary to the final advice given by Mr Sedgwick. Moreover, there were emails from Ms Evans at the time when the text of the decision was under consideration indicating that she thought the reasons looked weak. Mr Seddon also submitted that I should take into account in deciding how to exercise my discretion that the Secretary of State had originally put forward misleading evidence on this point and had not fully explained how that had come about.

[116]If the decision is quashed on Ground (8), it is common ground that the consequence would be that the Claimant would be permitted to refresh his application under paragraph 245C and the Points Based System, by reference to evidence, material and representations directed to his current circumstances. The parties agree that this would be the correct course even though the category under the Points Based System under which the Claimant had sought entry was abolished in December 2010. If the decision is not quashed, and the Claimant wishes to make a fresh application for a visa by reference to current circumstances, he will have to find some other ground of application under the Immigration Rules as they currently stand. I was not told what other ground of application there might now be.

[117]I have not found this issue an easy one. There is force in the argument by Mr Seddon that, having chosen to proceed under paragraph 320(19) rather than by way of direction under paragraph 320(6), the Secretary of State should be required to accept the consequences of that choice, and the matter should be remitted for an ECO to decide in the light of any advice which might now be given by the UKBA London office. On balance, however, I conclude that this is a case in which the Secretary of State has discharged the heavy onus on her to show that the circumstances are exceptional and such that it is just and appropriate to refuse to grant a quashing order. I accept the submissions of Mr O’Connor in that regard.

[118]In particular, I am persuaded that there was in reality no prospect whatever in the circumstances of this case that the ECO would have come to a different assessment on the question of application of paragraph 320(19) than had been advised to her as the result of the detailed consideration at the highest level within the UKBA at the meeting on 14 February 2011. The Claimant’s case was one of the utmost sensitivity and difficulty, involving questions of foreign policy, international co-operation and use of resources wholly outside the experience and expertise of an ECO. For those very reasons, the ECO had referred the case to head office for advice what to do. Indeed, but for the unfortunate and inadvertent misunderstanding on the part of the ECO at the end of the process, the case provides a good example of “joined up” government, with consideration of the difficult aspects of the case being referred, as was appropriate, to the top of the UKBA, and advice being sought on those issues from relevant government bodies in the form of the FCO and SOCA. The case had been considered in detail on its facts by the head of the UKBA, with the assistance of the Directorate, and clear and specific guidance had been given after careful and balanced internal debate about what was conducive to the public good and what decision should be taken in the public interest. In my view, no reasonable ECO would have regarded the fact that the February Submission had contained a recommendation in favour of granting the Claimant’s application as something which undermined the clear advice ultimately given by the head of the UKBA after debate and consideration of that submission, or as a licence to strike out on their own and, in effect, make international policy for the United Kingdom government in this sensitive area off their own bat.

[119]Therefore, the reality in this case is that the Claimant has not, by reason of the unlawful surrender ground, lost any real or substantive opportunity to have achieved a different result on his application. I consider that the net outcome for the Claimant, if the decision is quashed, of allowing him to have a completely fresh opportunity to make an application under the now repealed Points Based System with fresh evidence and representations can fairly be characterised as an unmerited windfall for him. If the decision were quashed, there would be a lack of proportion between the legal error and the benefit obtained by the Claimant. There would also be a lack of proportion between the error and the further demands which would then be imposed on resources within government to consider and deal with the Claimant’s fresh application under the (repealed) Points Based System, relying on new evidence and representations.

[120]Nor, in my view, is there any good reason based on considerations of the importance of upholding the rule of law why, notwithstanding this, it would nonetheless be appropriate to grant relief in order to vindicate adherence to proper standards in public administration. The unlawfulness which occurred was, in the context of the case, inadvertent and relatively trivial. Although the original evidence for the Secretary of State on this issue was misleading, that was again through inadvertence and not as a result of any deliberate attempt to mislead the Court. The appropriate and proportionate response to that will be reflected in costs, and it is not appropriate to penalise it further by granting relief which it is not otherwise appropriate to grant.

[121]For these reasons, in my discretion I refuse to quash the decision on the basis of Ground (8).

The appeal right issue

[122]Mr Fransman submitted that a right of appeal is preserved under section 82 of the Nationality, Immigration and Asylum Act 2002 where an application for entry clearance is refused on one of the general grounds for refusal, as distinct from being refused by reference to the terms of the Points Based System. If that is correct, I had difficulty understanding why the proper procedural course for the Claimant in this case was not an appeal under section 82 (complying with relevant time limits), rather than to attempt to obtain judicial review of the decision before bringing an appeal. The scope for intervention by the First-tier tribunal on an appeal under section 82 may be greater, and judicial review is generally only available if there is no other suitable remedy. Where there is doubt whether there is a right of appeal, it would be possible for an appellant to seek to appeal and at the same time either to issue a protective judicial review claim to be stayed pending a decision by the First-tier Tribunal as to its jurisdiction to entertain the appeal or to seek to agree a stand-still agreement with the Secretary of State in relation to a possible judicial review claim pending resolution of that issue by the Tribunal. Nonetheless, since I heard full argument on all the issues of law which arose in the case, the parties invited me to entertain the application for judicial review and rule upon them, whatever I might decide in relation to the appeal right issue. In the event, I find that, contrary to Mr Fransman’s submission, the Claimant had no right of appeal under section 82 of the 2002 Act, so judicial review proceedings were the correct form of proceedings for his claim.

[123]Section 82 of the 2002 Act provides in relevant part as follows:

“(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(b) refusal of entry clearance, …”

[124]The general right of appeal contained in section 82 has always been qualified in various ways. In the 2002 Act as originally enacted, section 88 stated that a person could not appeal under section 82(1) in certain circumstances. A further provision limiting entitlement to appeal in entry clearance cases, in the form of section 88A of the 2002 Act, was introduced into that Act by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, with effect from 1 October 2004. That version of section 88A provided that a person could not appeal under section 82(1) if the decision to refuse entry clearance were taken on grounds relating to the immigration rules and specified for the purpose of the section by order of the Secretary of State. In the event, no order was made under that provision, so the general right of appeal in section 82(1) remained available in relation to all entry clearance cases. But in view of the wide express power given to the Secretary of State to remove appeal rights under this provision, it is not plausible to characterise the continuing right of appeal in entry clearance cases as something having the character of a fundamental right in the context of the legislative scheme.

[125]A new version of section 88A was substituted by section 4 of the Immigration, Asylum and Nationality Act 2006. The new section 88A(1) provides that a person may not appeal under section 82(1) of the 2002 Act against refusal of an application for entry clearance unless the application was made “for the purpose of” visiting a person in a class prescribed in regulations or entering as the dependant of a person in circumstances prescribed by regulations. This provision again indicates the comparatively weak and qualified nature which Parliament intends the right of appeal in entry clearance cases to have. The Claimant does not fall within either of the categories for which a right to appeal under section 82 is preserved, so if the new section 88A(1) is in force in relation to him he has no right of appeal under section 82(1) of the 2002 Act.

[126]The new section 88A was to be brought into force in accordance with provision made by order of the Secretary of State: section 62(1) of the 2006 Act. An order made under section 62(1) may make provision generally or only for specified purposes, and may include transitional or incidental provision or savings: section 62(2). The relevant commencement order is the 2008 Order. Article 3 of the 2008 Order provided, inter alia, that section 4 of the 2006 Act (entry clearance – i.e. the new section 88A of the 2002 Act) should come into force on 1 April 2008, “subject to article 4”. The date of 1 April 2008 is the same date as that on which the Points Based System and paragraph 245C of the Immigration Rules came into effect (see Statement of Changes in Immigration Rules laid before Parliament on 6 February 2008, HC 321). Article 4 of the 2008 Order provides as follows:

“Saving and Transitional Provision 4. Notwithstanding the commencement of section 4 of the 2006 Act and the substitution of section 88A of the 2002 Act and section 23 of the 1999 Act, section 4(1) (appeals: entry clearance) and section 4(2) of the 2006 Act (monitoring refusals of entry clearance) shall have effect only so far as they relate to applications of a kind identified in immigration rules as requiring to be considered under a “Points Based System” and applications made for the purpose of entering the United Kingdom as a visitor, including applications made for the purpose of visiting a person of a class or description prescribed by regulations for the purpose of section 88A(1)(a) of the 2002 Act.”

(emphasis added)

[127]The question, therefore, is whether the application made by the Claimant falls within the words of article 4 of the 2008 Order in italics above. In my judgment, it plainly does. The Claimant made his application under paragraph 245C of the Immigration Rules, as it stood at the relevant time, which was part of the Points Based System under those rules. His application, in the form he made it, was one which was required by the Immigration Rules to be considered under the Points Based System. The appeal which the Claimant wishes to bring is one which clearly “relates” to such an application, and the new section 88A of the 2002 Act likewise relates to such an application. The intention in relation to and effect of articles 3 and 4 of the 2008 Order was to bring the new section 88A into effect in relation to applications for leave to enter under the Points Based System at the same time as that System came into effect by virtue of changes to the Immigration Rules, so as to ensure that appeal rights in relation to any application made under that System were withdrawn save to the extent allowed by the new section 88A.

[128]Contrary to the submission of Mr Fransman, article 4 does not separate out the different issues which might arise in respect of consideration of an application made under the Points Based System. It provides for a simple rule according to which applications either do or do not attract a right of appeal. The new section 88A(1) applies generally to exclude a right of appeal against a refusal of an application for entry clearance, unless the relevant application is made for a particular type of purpose (this reservation does not cover the Claimant’s case). Further, paragraph 245(b) of the Immigration Rules expressly incorporates reference to the general grounds of refusal into the conditions which have to be satisfied if an application for entry clearance under the Points Based System is to be allowed. The word “relate” in article 4 is a wide one, which to my mind is clearly apt to cover a case in which an application for entry clearance is made under the Points Based System and is refused by reference to the general grounds for refusal. There is no ambiguity about this. Article 4 provides for a clear and simple rule which covers all aspects of consideration of the applications falling within its scope.

[129]I did not find reference to authorities to which Mr Fransman took me of assistance on this point of construction. There is a very strong presumption that Parliament does not intend to legislate to remove access to the courts: see, e.g., Boddington v British Transport Police

[1999] 2 AC 143

, 161C-F per Lord Irvine of Lairg LC. But in the present context, that was never in issue. The question governed by section 88A of the 2002 Act (in both its forms) and articles 3 and 4 of the 2008 Order is whether there should be a right of appeal to the Tribunal or whether, instead, a claimant should be left with recourse to the High Court by way of judicial review. The latter does not involve any denial of access to the courts. There is no basis for departing from the plain, ordinary and natural meaning of any of the new section 88A of the 2002 Act, section 62 of the 2006 Act and article 4 of the 2008 Order by reference to this presumption.

[130]Mr Fransman referred, in particular, to R v Secretary of State for the Home Department, ex p. Saleem

[2001] 1 WLR 443

, CA. That case concerned the lawfulness of certain rules governing the procedure in relation to appeals in asylum cases, severely restricting the time within which such an appeal should be brought. The rules were held to be unlawful as introducing an excessively draconian time limit, falling outside the relevant rule making power to make rules for regulating the rights of appeal conferred by statute. In the particular context of that statutory regime, the Court of Appeal identified the statutory right of appeal as “a fundamental or basic right akin to the right of unimpeded access to a court” (see 449E-450D) and therefore found the strong presumption referred to above to be applicable, so as to give the statutory rule-making power a restrictive interpretation and hence to support the conclusion that the rules in question had been made outwith that power. In my view, the statutory context in relation to the right of appeal in relation to an application for entry clearance in the present case is very different. The right of appeal under section 82(1) of the 2002 Act in such cases was subject to the (old) section 88A (and hence was clearly intended by Parliament to be subject to regulation-making powers on the part of the Secretary of State), and what is regulated by articles 3 and 4 of the 2008 Order is the coming into effect of the (new) section 88A, which restricts the right of appeal still further on the face of the relevant primary legislation. In this statutory context, it is not possible to say that Parliament intended the relevant right of appeal (as distinct from a right to seek judicial review) to be “a fundamental or basic right akin to the right of unimpeded access to a court”. In particular, there is no presumption here that an order made under the commencement power in section 62 of the 2006 Act should be given a restrictive interpretation. The commencement power is a wide power to bring a provision of primary legislation (the new section 88A) into force on such date and in such manner as the Secretary of State orders. Accordingly, there is no good reason to be derived from ex p. Saleem or the other authorities referred to by Mr Fransman to give article 4 of the 2008 Order anything other than its natural and ordinary meaning.

[131]The net effect of the 2008 Order, therefore, is that article 3 and article 4, read together, have brought the new section 88A into effect in relation to cases such as those of the Claimant. By virtue of the new section 88A, the Claimant has no right of appeal under section 82(1) of the 2002 Act.

[132]For these reasons, the only procedural avenue open to the Claimant to challenge the decision in his case was by way of a claim for judicial review.

Conclusion

[133]For the reasons given above, I dismiss the application for judicial review on Grounds (1) to (7) on the merits and on Ground (8) in the exercise of my discretion. I also reject the submission of the Claimant that he has a right of appeal under section 82(1) of the 2002 Act against the decision to refuse his application for entry clearance.

Cited in 1 later judgment

The Secretary of State for the Home Department v SS (Congo) & Ors 2015