Butt, R (On the Application Of) v Secretary of State for the Home Department [2013] EWHC 1793 (Admin)

[2013] EWHC 1793 (Admin)Case No CO/6792/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 5 June 2013
Strand
London WC2A 2LL
B e f o r e:
MICHAEL KENT QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF BUTTAppellantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Mr M Biggs (instructed by Khans Solicitors) appeared for AppellantMr W Hansen (instructed by Treasury Solicitor) appeared for Respondent
J U D G M E N T
[1]THE DEPUTY JUDGE: This is a claim for judicial review of a decision of the Secretary of State for the Home Department given by letter dated 11 March 2013. In fact, the claim form was issued a long time before that and sought judicial review of an earlier decision taken on 29 March 2012. When permission was granted by Collins J to the claimant to proceed with his claim the defendant agreed to issue afresh decision, which was done in the letter of 11 March 2013. HHJ Thornton QC has given permission for the claimant's grounds to be amended so as to proceed with what is, in effect, a wholly fresh challenge to the March 2013 decision.[2]The claimant is a citizen of Pakistan who came to this country on a student visa in March 2006 when he was aged 24. His leave to remain expired initially on 17 April 2007 but it was twice extended, latterly under the International Graduate Scheme and the latest extension expired on 18 June 2009. Before that expiry he had applied for further leave to remain as a Tier 1 (Post-Study Work) Migrant but this was refused on 31 July 2009. He, however, remained unlawfully in the United Kingdom and on 21 December 2011, following an earlier application for leave to remain which had been rejected as invalid, he applied along with his wife, Noor Ul Ain, who was also a citizen of Pakistan and who was also applying at the same time for leave to remain as a Tier 4 General Student, for leave to remain as a dependant of a Points Based System ("PBS") Migrant, alternatively under discretionary powers. In a decision of 29 March 2012 Miss Ain was granted further leave to remain until 12 October 2013 but on the same day the claimant was refused his application to extend his leave and, as I have said, he launched a claim for judicial review of that decision.[3]It is necessary to look briefly at what was contained in that decision letter of 29 March 2012 refusing his application. The Secretary of State rejected it on the ground that his case did not fall within paragraph 319C(b) of the Immigration Rules. The letter also rejected the claim for discretionary leave and the claimant's reliance upon Article8 of the European Convention on Human Rights. Both these bases for refusal were challenged and Collins J in giving permission made it very clear that he thought that the Secretary of State's interpretation of paragraph 319C(b) was wrong, though he gave permission to argue the Article 8 ground as well. In the event, that led to the Secretary of State agreeing to make afresh decision and, incidentally, to paying the claimant's costs up to the date of Collins J's grant of permission.[4]The fresh decision was given in a letter dated 11 March 2013 and again rejected the claimant's application for further leave to remain on alternative bases. First it was concluded that he did not fall within the relevant paragraph of the Immigration Rules. This time paragraph 319C(h) was referred to. It is something of a mystery to me as to why the Secretary of State has concluded that the claimant does not fall within the Rules given the apparent acceptance (not explicit but by implication) in making a fresh decision in light of Collins J's view as to the correct interpretation. But that is not a matter for me because the decision to refuse under the Rules (that is to say refuse on the basis that the claimant does not fall within the relevant rule) is not challenged. It may be that the rejection was based upon the Secretary of State's approach to the facts as an alternative basis for refusal relating to the genuineness of the claimant's relationship with Miss Ain.[5]The Secretary of State then went on to give an alternative ground for rejection, namely that based upon paragraph 322(2) of the Immigration Rules. This provision provides as follows:
"Refusal of leave to remain, variation of leave to enter or remain or curtailment of leave 322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave: ... Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused (2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave."
The Secretary of State said that in the previous application to remain as a Tier 1 (Post-Study Work) Migrant, which was refused in July 2009, the claimant had submitted a document which was false, namely a certificate purporting to be a Post Graduate Diploma in Business Management from the Cambridge College of Learning. The Secretary of State referred to a decision of the Asylum and Immigration Tribunal: NA & others (Cambridge College of Learning) Pakistan [2009] UKAIT 0 0031, in which that tribunal found that the Cambridge College of Learning, though a genuine institution, never offered a course leading to a Post Graduate Diploma in Business Management.[6]The decision letter of the Secretary of State says this:
"Paragraph 322(2) of the Immigration Rules states that an application for leave to remain is to be refused where an applicant has made false representations or failed to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave. As you have previously presented false documentation in an attempt to obtain leave to remain your application is refused under paragraph 322(2) of the Immigration Rules."
The letter then goes on to consider whether leave to remain should be given in the exercise of discretionary powers, paying particular regard to Article 8 of the ECHR, and concludes that it should not and that any refusal would not be a disproportionate interference with the claimant's Article 8 rights. Further, the Secretary of State stated that it was not accepted that the claimant was in a subsisting relationship with Miss Ain and, in any event, even if he was, her Article 8 rights would not be disproportionately interfered with by a refusal to grant further leave to remain to the claimant.[7]Mr Biggs, on behalf of the claimant, advances three broad grounds of challenge to that decision. Firstly, he says that the Secretary of State could not as a matter of law perform what he described as a U-turn and, in the decision of 11 March 2013, for the first time take the point against the claimant about his misrepresentation and submission of false documents relating to the Cambridge College of Learning course. He described this as an abuse or an estoppel ground. Secondly, he complains that the Secretary of State erred in taking account of the decision of the AIT in NA in any event as it does not bind the claimant who was not a party to that appeal and he was not given an opportunity to make further representations about it. Thirdly, he challenges the Secretary of State's approach to the Article 8 issue and in particular places reliance upon the apparent failure on the part of the decision maker to realise that the claimant and Miss Ain were in fact married.[8]Turning to his first ground, estoppel or abuse, the claimant in making his application for leave to remain as a dependant of a PBS migrant in a form dated 20 December 2011 was required to answer, amongst other things, the following questions:
“D19. Has the dependant ever used deception when seeking leave to enter or leave to remain?”, “D20. Give the details and dates when this happened”
. In answer to D19 the claimant has put a cross in the yes box. In answer to D20 he says:
"Although the dependant believes he was not fraudulent, however due to the fact that he submitted a qualification from Cambridge College of Learning hence this was found to be deception in tribunal"
. Mr Biggs says that the defendant having been presented with this clear admission of previous deception was obliged under the Rules and paragraph 322 in particular to consider whether that provided a separate ground for refusal but, says Mr Biggs, the Secretary of State has clearly and deliberately elected not to rely upon that ground as a separate ground of rejection. He says that the claimant had come clean about the previous deception and the Rules did not require refusal in every such case. His client was therefore entitled to consider that he had avoided the consequences of his previous deception by making that disclosure and the defendant is stopped from later reverting to this ground. Alternatively, fairness requires that the defendant should not now rely upon it, alternatively, that it would be an abuse for her to do so.[9]The obvious difficulty with this argument is that the decision letter of March 2012 was not one in favour of the claimant. The claimant therefore cannot say that he has obtained something of benefit which the Secretary of State by her later decision is now seeking to take away from him, nor can he point to any detrimental reliance on the apparent decision not to penalise him for the prior deception which he had admitted. These seem to me to be insurmountable problems for the claimant. There is a continuing debate about the extent to which the doctrine of estoppel has any application in the public law context but it is at least clear that where it does it is simply another way of saying that it would be unfair and amount to an abuse in all the circumstances for the public authority to rely upon the point in dispute. That is simply an aspect of the requirement of good administration.[10]Mr Hansen, for the Secretary of State, has relied upon the case of R(on the application of Capital Care Services (UK) Ltd) v Secretary of State for the Home Department [2012] EWCA Civ 1151, in which the Court of Appeal rejected an argument that alicence granted by the Secretary of State effectively by mistake could not later be taken away from the claimant who had the benefit of it. Laws LJ said this at the end of his judgment:
"22. Lastly, there is in any event an overriding public interest here. The requirements of the policy are as I have said distinctly fashioned for the protection of immigration control in accordance with the Immigration Rules. The Secretary of State cannot in my judgment be required in the name of a legitimate expectation to weaken that protection by maintaining in being a licence to operate a business which does not meet those requirements."
[11]Mr Biggs says that that case is distinguishable on its facts and I agree with him that there are differences which may make the decision itself not directly applicable to the circumstances of this case. However, I cannot see here that any abuse or unfairness has been practised by the Secretary of State who had previously rejected the application on certain express grounds. When she agreed to reconsider, all matters where available for her to be looked at afresh. The reconsideration was not limited to, for example, the matter that had concerned Collins J, namely whether there had been a wrong interpretation of one of the rules. It seems to me that reliance upon a ground that had not been relied on before, but which had not been expressly or even by implication stated to be one that would not be relied upon if necessary, cannot amount to an abuse. It is obvious that a decision maker who has a number of grounds for refusing an application may choose not to go on to consider alternative grounds for refusal when it is unnecessary to do so. Where grounds already relied upon have been sent back for reconsideration it seems to me that that does not preclude, in the absence of special circumstances, reliance upon a further ground.[12]I should say that I was concerned about one aspect of Mr Biggs' skeleton argument which seemed to be suggesting that the reliance in March 2013 on the deception point was effectively a cynical attempt, in bad faith, to use any means to maintain a decision which was otherwise liable to be struck down as unlawful. He does not go so far as to say that this was not made in good faith, and in the end I have to consider the matter on the basis that the Secretary of State is alleged to have been deprived as a matter of law of her right to rely upon paragraph 322(2) but not because of any deliberate or cynical action on her part or on the part of her officials.[13]As for the second ground, the complaint about the reliance upon the findings of the AIT in the case of NA, Mr Biggs says that firstly it did not bind the claimant. That is obviously true. Nevertheless, Mr Biggs accepts that the Secretary of State is entitled to take that decision into account. I note that it was a decision of three senior immigration judges and it runs to a total of 189 paragraphs. It is quite clear that it was intended to be a test case designed to resolve issues that would affect a number of other cases. In paragraph 2 of the judgment it is recorded that the UK Border Agency became concerned about the large number of applications it was receiving from students enclosing Post Graduate Diplomas in either Business Management or IT awarded by the Cambridge College of Learning. It is recorded that over 2,500 CCOL related applications falling into the PgDip BM or PgDip IT categories were received between 22 October 2008 and 22 December 2008. At the time, Home Office records showed that there were only 181 students with current leave to remain within the student category attending that college. Those figures are really quite striking. At the end of their decision, paragraph 147, the tribunal say this:
"It will be apparent from our above findings that we consider that no person claiming to have undertaken a PgDip course in IT or BM at CCOL can have done so without knowing that such a claim amounted to a false representation."
[14]I asked Mr Biggs if his client was saying that he did in fact attend such a course. I pointed out that there is nothing in the papers from his client or anyone else asserting that he did so. I was told by Mr Biggs that his client's instructions were that he did attend such a course. I find it surprising in those circumstances that there is no such assertion but, in my view, the likely reason is that it would simply not be credible. There was some discussion in the course of the hearing this morning as to whether this raised a question of jurisdictional fact for me to determine, namely whether the claimant had in fact been dishonest in asserting that he had attended this course, and that was not resolved but, as Mr Hansen pointed out, this is not something which has been correctly raised procedurally by the Claimant. It is a matter which would require relevant directions for determination of the issue and in any event it is, as I have said, simply inconceivable that the claimant would be able, in view of the extensive investigation and findings of the AIT, to demonstrate that in fact he was attending something that appeared to be a Post Graduate Diploma course in Business Management at Cambridge College of Learning. It would therefore be inevitable, in my view, that the claimant would fail on any investigation by this court as to the truth of the facts.[15]Mr Biggs' other point, however, is that the Secretary of State has failed to make any findings as to whether the claimant was personally dishonest, that the Secretary of State has merely founded this part of her decision on the submission of a false document. Mr Biggs notes that the claimant in box D20 of his application for further leave, although the sentence is somewhat unclear, appears to be saying he has not been fraudulent. However, rather inconsistently, in D19 he has admitted a deception. Mr Biggs says that paragraph 322(2) requires the Secretary of State to be satisfied that the applicant has knowingly made a false representation, it is not enough to have put in a false document. There is, however, nothing in this point, in my view. The 2009 application shows that the claimant ascribed 10 points to the course at the Cambridge College of Learning and produced a certificate, which itself states this:
"Postgraduate Diploma in Business management is hereby awarded to Adil Awais Butt having successfully completed an approved course of study and having satisfied the board of examiners on May 2008."
That, it seems to me, is clearly are presentation by Mr Butt that he did attend such a course and was able to satisfy the board of examiners in the way described. So that clearly goes beyond the submission of a false document and it seems to be what is he admitting in box D19 of the 2011 application form is a misrepresentation in the 2009 application that he attended such a course.[16]Similarly, there is nothing in the contention that the claimant should be given an opportunity to comment on the possibly that he might be refused under paragraph 322 of the Rules. He was clearly aware of the risk of his application being rejected on such aground, hence his completion of boxes D19 and D20 in the application form in December 2011, and he has had since then, if not earlier, ample time to provide his account of how it is that, though the certificate or diploma may be false, he did not knowingly or dishonestly put forward that false certificate, alternatively that he did somehow attend a course which he genuinely thought was a course in Business Management at the Cambridge College of Learning.[17]As to ground 3, Mr Biggs says that the decision on Article 8 is flawed by a fundamental misunderstanding of a central fact, namely that the claimant and Miss Ain were in fact married at the time the decision was taken. There is, it is true, no mention of this fact in the decision letter, which refers only to a relationship and describes this as not subsisting relationship. Mr Biggs points out also that the claimant had obtained a certificate of approval from the Secretary of State to marry Miss Ain in March 2011 and he says that the Secretary of State cannot later be heard to deny that this is a genuine relationship. I have not been shown the criteria under the Rules relating to the grant of a certificate of approval, so I find it difficult to judge the correctness of the assertion that there is an inconsistency between the grant of that certificate and the conclusion in the letter of March 2013 that the relationship is not subsisting short of any evidence of a change of circumstances. Taken in isolation it does seem to me that the decision letter is in this respect defective, in that one would expect the Secretary of State to have noted and specifically mentioned the fact that the parties were now married, and if the matter stood in isolation this may be one of those rare cases were the claimant would have an arguable case for saying that there was error of law consisting in a misunderstanding of a material and fundamental fact relevant to her decision (see E & R v Secretary of State for Home Department [2004] EWCA Civ 49).[18]However, this matter is not to be looked at in isolation. Firstly, as Mr Hansen and the decision letter points out, there is more to this than meets the eye. At an earlier date the claimant had applied for a certificate of approval to his marriage to someone completely different. That application was made on 2 June 2010 and related to a proposed marriage to Aneta Machovcova. This application was ultimately rejected on 20 January 2011. A reason for rejection was that the proposed bride was not in fact a citizen of an EEA State because her passport from the Czech Republic was not a valid passport. But shortly before that refusal, I think a matter of only days before that refusal, the claimant had applied for a certificate of approval for his proposed marriage to Noor Ul Ain, the person whom he subsequently married in May of that year. In support of the application for approval of his marriage to Aneta Machovcova, he and Miss Machovcova swore affidavits, both dated 3 August 2010, saying, in effect, that they were then in a relationship, had been living together since December 2009 and intended to get married.[19]In a letter from the claimant's solicitors to the UK Border Agency dated 21 December 2011, which was a covering letter submitting the applications by the claimant and Miss Ain for further leave to remain, it was stated that:
"Since July 2010, Mr Butt is having a relationship with Ms Ain. They were living together as un-married partners."
That date, July 2010, which of course predates the affidavits which I have just referred to which say that Mr Butt and Miss Machovcova were living together, is said today to be a mistake, although there is no further evidence from the claimant explaining how that mistake came about. Whether that should be read as a relationship which started in August 2010 rather than July 2010, which is what is now said to be the date when Miss Ain and Mr Butt first met, it is nevertheless striking that the claimant did not withdraw his application for a certificate of approval for his proposed marriage to Miss Machovcova. He simply waited until it was refused, and in fact the day before it was refused he put in an application for a certificate of approval for proposed marriage to Noor Ul Ain. Those were matters taken into account by the Secretary of State and, in my judgment, properly taken into account in support of a conclusion that there was not a subsisting relationship. In my judgment, it is not therefore a fundamental error of fact that, if it indeed was the case, the Secretary of State or the decision maker may have been unaware that those parties had in fact married. In any event, the decision maker went on in the letter of 11 March 2013 to consider the Article 8 issue on the assumption that there was indeed a subsisting relationship.[20]I have to look at the Article 8 matter afresh, in the sense that I am not bound by the view taken of the facts by the Secretary of State, but I must do that on the basis of the information available to the Secretary of State at the time and the decision maker's findings in March 2013, though I will supplement that with the additional information, if indeed it was overlooked, that the claimant and Miss Ain are in fact, and were in fact, married at the time. The Secretary of State took the view that any interference with the claimant's and Miss Ain's Article 8 rights if they were in asubsisting relationship was outweighed by the need to maintain proper and firm immigration control and would not therefore be disproportionate. I agree with that assessment. The claimant is an over stayer. He has admitted deception. They are both Pakistan nationals. There is no suggestion that there are any third parties whose Article 8 rights might be affected, such as children or relations who have rights of residence here. They both came to this country only for the purposes of studying and the claimant's purpose has now been fulfilled, at any rate insofar as he has been able to achieve that purpose. As far as Miss Ain is concerned, she has leave to remain only until October 2013 and, as Mr Hansen points out, the papers reveal that her course will in fact end on 18 June 2013 year, in only 2 weeks' time. She met Mr Butt at a time when he had no legal basis for being in this country and it is a proper inference that she must have known at the very least that his immigration status was precarious. I say that not least because they both employed the same solicitor who wrote the letter I referred to in December 2011 enclosing their applications for further leave to remain.[21]In the circumstances, it seems to me that this is overwhelmingly a case where the Article 8 rights which might be impacted upon, if any, are such that any such impact will be very slight. In fact, I suspect there is no conceivable chance, if the claimant does not go voluntarily before then, of his being removed before Miss Ain has completed her course on 18 June. Mr Biggs has said the fact that the claimant only seeks leave to remain for a limited time strengthens his claim under Article 8 but, in my view, it has rather the opposite effect. It shows how limited the impact of a refusal of further leave to remain is. This case is certainly very far from those cases which have been cited to me where the claimant is able to say that there is no point in his being required to leave the country only to make an application for entry clearance which is bound to succeed. That is far from this case. It seems to me that there is no error shown in the Secretary of State's approach to the Article 8 issue and insofar as Ihave had to asses the matter afresh, I take the view that the balance comes down clearly in favour of the Immigration Rules being enforced rather than discretionary leave being given based upon the Article 8 issues.[22]For all those reasons this claim is dismissed.[23]MR HANSEN: I am most grateful, my Lord. I seek the defendant's costs insofar as they have been incurred since September.[24]THE DEPUTY JUDGE: What about quantification of those costs?[25]MR HANSEN: There is no schedule. I seek a detailed assessment if not agreed.[26]THE DEPUTY JUDGE: Thank you.[27]Mr Biggs, what do you have to say about it?[28]MR BIGGS: My Lord, I do not resist the costs in principle. The costs should follow the event in these circumstances. What I do say is that costs should run, from the defendant's point of view, from the 11 March decision. Until that time there was no decision outstanding and, essentially, there was simply a limbo situation. I have to say in terms of the order conferring the claimant a right to his costs from the defendant up until September, it was never fully clear to me why the date of September was chosen.[29]THE DEPUTY JUDGE: It was the date of Collins J's grant of permission.[30]MR BIGGS: I am not sure if that is right. It may be.[31]THE DEPUTY JUDGE: It is page 43 of the bundle.[32]MR HANSEN: That is right.[33]THE DEPUTY JUDGE: I can see you may have, in fact, had some additional costs until that was sorted out and you persuaded the -- because I think there was some correspondence inviting you to discontinue.[34]MR BIGGS: Exactly. There was a consent order which was entered into some time later.[35]THE DEPUTY JUDGE: I think I am with you on that. Subject to anything Mr Hansen says, it seems fair enough that insofar as – I mean, you are not asking for any costs you have incurred in that interval, you are simply asking to be protected from any costs which the defendants may have incurred.[36]MR BIGGS: My Lord, yes. The reality is, without a decision there is nothing the claimant could have done differently. I think that is fair to say.[37]THE DEPUTY JUDGE: Do you want to say anything about that?[38]MR HANSEN: That is not opposed.[39]THE DEPUTY JUDGE: Thank you. I will therefore make an order for the defendant's costs but costs incurred only from 11 March 2013, to be subject to detailed assessment. I think you should strictly have produced a schedule for summary assessment, being a one day case, but in fact because of the complication of the cut-off dates it would properly be sensible to have a detailed assessment in any event.[40]MR HANSEN: It may be, I do not know what has happened to the claimant's costs, if they are still to the dealt with, it may be sensible to.[41]THE DEPUTY JUDGE: Maybe you can discuss it and if you can agree figures that is all the better but that is the order I make. Thank you.[42]MR HANSEN: I am grateful.[43]MR BIGGS: My Lord, yes, just picking up on my learned friend's suggestion, Ido not think there is any need for this court to make an order dealing with this but it seems to me that there should be detailed assessment of both party's costs, if that makes sense, in one set of proceedings. I am not sure that the court needs to order that.[44]THE DEPUTY JUDGE: I do not know how it was dealt with, whether it was just dealt with in correspondence, the costs that you were obtaining but you would need an order. If you could not agree your costs you would need an order for detailed assessments.[45]MR BIGGS: There is the order, I think it is at pages 44 to page 45 --[46]THE DEPUTY JUDGE: Is there a consent order?[47]MR BIGGS: That is the consent order. I think that deals with costs.[48]THE DEPUTY JUDGE: Although it does not say it, I think a detailed assessment is implied. I do not think I need to do anything. I think all you do is that if you cannot agree the costs you simply use that order as the basis for applying for detailed assessment.[49]MR BIGGS: Yes, my Lord.[50]THE DEPUTY JUDGE: Thank you.