Shah, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWHC 3301 (Admin)

Case No CO/2467/2014[2014] EWHC 3301 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Date: WEDNESDAY, 20 AUGUST 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LEWIS
Between
THE QUEEN ON THE APPLICATION OF SHAHClaimantv
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Dean appeared for ClaimantMr Gullick appeared for Defendant
J U D G M E N T
[1]MR JUSTICE LEWIS: This is a renewed application for permission to apply for judicial review. It is important to identify what are said to be the decisions under challenge, and given the way that the Secretary of State has expressed herself I have some sympathy with the way in which the claimant decided to bring judicial review.[2]The first decision that is said to be challenged is the decision refusing the claimant further leave to remain in the United Kingdom. The claimant was a tier four student. He had leave to be in the United Kingdom. He applied in law to vary that leave and to obtain further leave to remain. That is the subject of one decision.[3]The second decision is the decision to remove him from the United Kingdom pursuant to section 10 of the Immigration and Asylum Act 1999 on the grounds that he used deception in seeking, whether successfully or not, leave to remain. Section 10(8) also says this:
"When a person is notified that a decision has been made to remove him in accordance with this section the notification invalidates any leave to enter or remain in the United Kingdom previously given to him."
[4]The third area of challenge in effect is to the decision to detain the claimant from a time in about May 2014 until his release on bail in about June 2014.[5]The background is that the claimant was a student, as I say, with a visa allowing him to be in the United Kingdom until 28 February 2014. On 20 February he applied for further leave to remain; that is whilst he still had leave he asked for the leave to be varied so it continued to a later time. As part of his application he had to submit evidence of proficiency in the English language. In fact he submitted test scores from tests conducted by an organisation called the Educational Testing Services.[6]Following investigations the defendant concluded that a large number of those tests, including those allegedly taken by the claimant, were fraudulent. The defendant concluded that the tests had been taken not by those who said that they had taken the tests but by proxies taking the tests on their behalf. That position did not become fully clear until the Defendant filed her acknowledgement of service and other correspondence.[7]As a result the claim form does not expressly deal with this question of the test and whether or not Mr Shah took it himself or whether he used a proxy. However, the fact that he continued his claim indicates that he takes the view that the Secretary of State's decision is wrong and in fact he was not somebody who used a proxy, but took the test himself. I understood from Mr Dean, who appeared on his behalf today, that that is his position.[8]In the course of considering the papers and in the course of discussion it became clear that there really was only one issue, and that is the question of whether the test was properly taken by Mr Shah or was taken by a proxy should be addressed by the tribunal on appeal on the basis that the Claimant has an in country right of appeal or an out of country right of appeal.[9]In my judgment it is perfectly clear that the appropriate forum for dealing with this matter is the First Tier Tribunal. The only question is whether there is a right to be in the United Kingdom pending that appeal or whether the claimant has to leave the United Kingdom. The legislation is not clear and not always easy to understand. Section 82 of the relevant Act says this, as far as material:
"Where an immigration decision is made in respect of a person he may appeal to the Tribunal."
[10]Section 82(2) identifies a number of decisions that constitute immigration decisions for these purposes. They include at (d) a refusal to vary a person's leave to enter or remain in the United Kingdom, if the result of the refusal is that a person has no leave to enter or remain. It also includes at (g) a decision that the person is be removed from the United Kingdom by way of a direction under section 10(1)(b) of the 1999 Act.[11]As for the question of where does the person have the right to be pending the appeal, that is dealt with in section 92. Section 92 provides that:
"A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of the kind to which this section applies."
Sub-section 2 says:
"This section applies to an appeal against an immigration decision of a kind specified in section 82(2) c, d, d, f, h(a) and j."
[12]Pausing there and cutting through the wording, the position is this: if the person is challenging a decision refusing leave to remain when he made the application to vary leave to remain when he was in the United Kingdom he has an in country right of appeal. If he is challenging a decision to remove him because of deception he has an out of country right of appeal. So it then becomes critical to consider what happened to the application that Mr Shah made whilst he had leave to remain in the United Kingdom to vary that leave.[13]Initially, having read the papers and having heard submissions from Mr Dean, I had been concerned that there had in fact been both a decision to refuse to vary leave under section 82(2)(d), which carried with it an in country right of appeal, and also a decision to remove under section 10(1)(b), which carried with it only an out of country appeal. Moreover, that appeared to be reinforced by some of the correspondence that I had read where the Secretary of State appears to be saying she had refused the application for leave to remain.[14]However, Mr Gullick has correctly drawn my attention to the relevant provisions of law, and no matter how the Secretary of State has expressed herself the position is governed by section 10(8)of the 1999 Act:
"Where a person is notified that a decision has been made to remove him in accordance with this section the notification invalidates any leave to enter or remain in the United Kingdom."
[15]That is what happened here. Because of the alleged deception the Secretary of State did decide to remove him. That had the consequence when notification was given of invalidating the leave to remain. Thereafter, no matter how the Secretary of State expressed herself, what she was doing was saying because your leave has been invalidated you do not have leave to remain and we cannot therefore vary it by extending the time. Therefore that, no matter how expressed, did not amount to an immigration decision within the meaning of section 82(2)(d) of the 1999 Act and therefore there is no in country right of appeal.[16]Standing back from the matter, therefore, I am satisfied that the contrary position is unarguable. The Secretary of State has made a decision here under 10(1)(b). That carries with it a right of appeal but only from outside the United Kingdom. That decision invalidates any previous leave given and therefore there would be no need, and no legal provision, for a decision refusing the application to vary leave, as there is no leave. Consequently the claim to challenge the decision to refuse leave and the claim to challenge the removal decision under section 10 should not be granted permission because there is an alternative remedy, namely appeal out of country in relation to the only true decision, which is the removal decision.[17]There was a challenge in relation to Article 8, and Mr Dean very sensibly does not advance that. In my judgment he is right to do so. There is absolutely no basis on which it could conceivably be said that removal of this claimant to Pakistan would be a breach of Article 8. He came to the UK for a short period of time. He has no family life here. He has developed a limited private life in the context of being a student. Removal for the enforcement of immigration control is clearly a legitimate aim. Removal in this case is clearly proportionate. Mr Dean was right to abandon that part of the argument.[18]There was a challenge to the period of detention, but in my judgment the detention here was lawful. It satisfied all of the requirements of the well known case of Hardial Singh. The defendant did intend to remove the claimant. The power to detain was used for that purpose. The decision was reasonable in all of the circumstances. There appeared to be no reason why the defendant could not remove Mr Shah and the defendant acted with reasonable diligence and expedition. The defendant has the power to detain under paragraph 71(2) of the relevant Act. So the challenge to the period of detention is unarguable.[19]In summary, therefore, the true decision was the decision to remove under section 10. The challenge to that should be by way of an appeal to the Tribunal as prescribed for by Parliament. There is in truth no separate legally operative decision to refuse leave to remain. The leave was invalidated by section 10(8). The detention was proper.[20]I have sympathy with the way in which the claimant proceeded. The letters from the Secretary of State did not always fully explain the facts. The letters from the Secretary of State did not fully explain the legal position. It was only the helpful submissions of Mr Gullick who set the court on the right path after the defendant had set the court on the wrong path.[21]For all of those reasons the claim for permission to apply for judicial review of all of the decisions is refused.

Cited in 3 later judgments