Joshi & Anor, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 216 (Admin)

Case No CO/2884/2015& CO/2883/2015[2016] EWHC 216 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 February 2016
Before
PROFESSOR CHRISTOPHER FORSYTH(Sitting as a Deputy Judge of the High Court)
Between
THE QUEEN on the application ofClaimants(1) PRIYANKA ANN JOSHIand (2) DINY THOMASSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENT
Shivani Jegarajah (Direct Access) for ClaimantsWilliam Hansen (instructed by Government Legal Department) for DefendantHearing Hearing date: 9 December 2015
JudgmentProfessor Christopher Forsyth :Introduction
[1]These applications for judicial review are made by two claimants who are married to each other and are nationals of India. Claimant One (PRIYANKA ANN JOSHI) has been in the United Kingdom since September 2005 with entry clearance as a student while Claimant Two (DINY THOMAS ) has been in the United Kingdom since May 2008 with entry clearance as a student dependent. Claimant One (with Clamant Two as her dependent) in the years since 2005 made various applications for leave to remain. The details of these applications need not concern us, save to remark that Claimant One has succeeded in obtaining both a bachelor’s and a master’s degree from UK universities in the period since 2005. Some of the applications for leave to remain were refused but at no time were the couple in the UK without leave to remain.[2]On the 27th June 2014 with her existing leave to remain due to expire on the 14th July 2014, Claimant One made a further application for leave to remain in order to undertake PhD Studies at Bradford Regional College. The claimants must have expected this application for leave to remain to be granted but some time thereafter (on the 25th September 2014) that college’s sponsor licence was revoked by the Secretary of State. This meant that Claimant One was no longer in possession of a valid “Confirmation of Acceptance for Studies” from a licensed college which was necessary for further leave to remain as a student to be granted.[3]In these circumstances UK Visas and Immigration wrote to Claimant One on the 5th January 2015 stating that Claimant One’s application (of the 26th June 2014) would be suspended for sixty days, i.e. until the 6th March 2015 so that she could “withdraw her application, submit a fresh application in a different category, leave the UK or obtain a new Tier 4 sponsor”. Claimant One attempted to find a new Tier 4 sponsor, i.e. a university that would accept her for PhD studies, but failed to do so within the 60 days allowed.[4]As the end of the 60 days suspension approached and with it her leave to remain in the UK, Claimant One made a further application. This was an application for leave to remain in the UK in a category not covered by other forms. In this application, made on the 4th March 2015, she sought an extension of her leave to remain on the ground that she needed more time to find another college sponsor for her PhD. But she also prayed in aid her medical condition (hypothyroidism and sinus tachycardia) and, significantly, said this:
“…I would like to apply under other purposes not covered by Immigration Law and under my rights to private and family life guaranteed by article 8 of ECHR [and I] request that you grant me leave to remain in the UK for a period which you deem fit and appropriate in my circumstances.”
[5]UK Visas and Immigration responded to this application in a letter of the 1st May 2015 explaining that Claimant One already had an application under consideration (the application of the 26th June 2014). In accordance with published guidance the previous application would be treated as varied and would not be considered further.[6]There thus remained only the application of the 4th March 2015 to be determined. The decision on this application was made on the 6th May 2015 but it was only served on Claimant One on the 11th June 2015. That decision was to refuse the application and, in addition, to certify the human rights claim made in it as “clearly unfounded”. This meant that any appeal against the refusal was “out of country” (Nationality, Immigration and Asylum Act 2002, section 94(1)). The Claimants had to leave the UK before they could appeal against the decision of the 6th May. (In fact, the Immigration Act 2014, section 15 has removed the right of appeal against decision of this type (and replaced it with “administrative review” under the Immigration Rules) but the right of appeal of persons in the Claimant’s position is preserved by the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2771) articles 9 and 11.)[7]Since the decision of the 6th May 20 had not yet been served on them the Claimants were taken wholly by surprise when at 6.15am on the 11th June 2015 the UKVI carried out an “enforcement visit” at the Claimants’ home. The Claimants were detained in obviously stressful circumstances. They were served with both the letter refusing the application of the 4th March 2015 (the date on the decision letter being changed in manuscript from the 6th May to the 11th March). In the interests of clarity I shall refer to this as the decision of the 6th May, since that was the day on which it was made. The Claimants were also served with removal notices on the 11th June.

Procedural history of the applications for judicial review

[8]On the 18th June 2015 the judicial review claim form was filed with the Claimants still in detention. An interim relief hearing was ordered by Picken J on the 19th June and it took place on the 26th before Patterson J. Although an acknowledgement of service had been filed by the Secretary of State this did not come to the attention of the court. The Secretary of State was not represented by counsel. The Claimants were ordered to be released and a stay on their removal until the outcome of the applications for judicial review was ordered.[9]The applications for permission came before Cranston J on the 27th July 2015 who did not grant permission but ordered that the two applications be joined and determined at a “rolled up” hearing in the special circumstances of the case. That “rolled up” hearing took place on the 9th December 2015 before me.

General Analysis

[10]Although the decision in respect of which judicial review is sought is stated in the claim form to be “the Decision of the Secretary of State for the Home Department to remove the First Claimant and her Dependent dated 11/6/15 [i.e. the removal directions] and unlawful detention” (section 3 of the Claim Form) the claimants’ actual “Grounds upon which permission is sought” reveals a rather broader attack. In particular the Claimants allege that the decision of the 6th May 2015 (refusing the application for further leave of the 4th March) amounted to an abuse of power and was thus a nullity; and, although not put in quite this way by the claimants, if the decision of the 6th May was a nullity, then the Claimants continued to have leave to remain under section 3C of the 1971 Act (this provides for the “automatic” extension of leave pending a variation decision; section 3C is will be explained in para 27 below). They were thus, so the Claimants’ argument ran, not over stayers and the removal orders were improper.[11]One undeniable fact dominates these proceedings. The Claimants as nationals of India have no right to be in the United Kingdom unless they had valid leave to remain. In the absence of such leave they are liable to be removed and taken into detention pursuant to that end. And by the 11th June 2015, the only possible ground on which the Claimants would have leave to remain would be if the decision of the 6th May 2015 to refuse the application of the 4th March was invalid or a nullity. This thus emerges as the primary issue for decision.[12]But the claim form also claims relief for “unlawful detention”. This will then be the second issue to determine in this judgment. The claim for unlawful detention is essentially a private law claim but it was never pleaded as such and oral evidence was not led and tested by cross examination. But I have reached the conclusion (explained below) that the officers who took the Claimants into detention were protected by paragraph 16 (2) of Schedule 2 of the Immigration Act 1971; so it is not necessary to decide the private law issues.

The primary issue for decision: was the decision of the 6th May a nullity?

[13]If the decision of the 6th May was invalid – as the Claimants assert – there must be shown to be some error or misconduct by officials prior to the decision being taken on the 6th May 2015. The difficulty that the Claimants face is that the allegations of bad faith and abuse of power in paragraphs 25-27, 30-32 of the claimants’ Grounds (and see also Claimant One’s witness statement) all relate to the conduct of the immigration officers who carried out the enforcement visit on the 11th June 2015. The officers were said to be “extremely rude” and accused the claimants of lying when they said that they were awaiting a decision on their outstanding application. This was clearly a fraught and difficult occasion. And it is unfortunate to say the least that the occasion led to the first Claimant having a two panic attacks necessitating medical treatment. But none of this touches, or can touch, the validity of the decision of the 6th May.[14]Then the allegation is also made by the Claimants that service of the decision of the 6th May was suppressed in order to deny the Claimants’ access to the courts to challenge that decision. But there is no evidence that this was the purpose in not serving the refusal decision of the 6th May prior to the 11th June. However, even if there were it would need to be shown that the decision to delay service was taken prior to the decision of the 6th May, so that it could taint that decision. But there is no such evidence.[15]At the hearing on the 9th December 2015 considerable time was spent on the evidence of what happened on the 11th June. There were several documents from which the events of the 11th June might be gleaned. There were the Claimants’ witness statements, the statement of Maleha Mahmood (the arresting officer), the Detention Reviews (exhibited by the Home Office) and the relevant General Case Information Database (“GCID”) Case Record Sheets (also exhibited by the Home Office). The GCID Case Record also gave some insight into events prior to the 6th May 2015.[16](A word may be added here about the redactions in the “GCID” documents. In the form exhibited by the Home Office they contained certain redactions (mostly relating to “litigation privilege” counsel for the Home Secretary informed me.) Counsel kindly provided for my inspection a copy of the unredacted “GCID” documents with the intention that I should see these documents but they would not be shown to the Claimants and their counsel. On reflection I decided not to inspect the unredacted documents and have not done so; this was notthe sort of exceptional case in which some of the evidence could justifiably be withheld from one side.)[17]From my perusal of these documents and after having due regard to claimants’ counsel’s submission I am unable to detect any clear evidence that significantly supports the claimants’ case that there was some abuse of power affecting the validity of the decision of the 6th May 2015. There is evidence of some confusion over when that decision was served; there is evidence that the officials thought that the claimants were over stayers at a time that they were not. But there is nothing that goes to show that the decision of the 6th May to reject the application for further leave was invalid.[18]But the Claimants go further and submit that the Secretary of State erred in treating the application of the 4th March as a human rights claim. In truth they say the application of the 4th of March was simply an application for more time to find a Tier 4 sponsor. The Secretary of State’s misunderstanding of the application, the Claimants argue, taints the whole decision of the 6th May rendering it a nullity. So I turn to consider whether the application of the 4th March 2015 a “human rights claim”.

Was the application of the 4th March 2015 a “human rights claim”?

[19]Certification by the Secretary of State that a human rights claim was “clearly unfounded” means in the circumstances that the persons who made that claim were denied an “in country” appeal. So the certification of the claim had important consequences for the claimants who would doubtless launch an “in country” appeal against the Secretary of State’s refusal of the application of the 4th March 2015, if they could.[20]The Nationality, Immigration and Asylum Act 2002, section 113(1) defines a “human rights claim” as “a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (unlawful for a public authority to act in a way incompatible with Convention rights).[21]Claimant One’s application of the 4th March was an application for further leave to remain which, if not granted, would lead the Secretary of State to remove claimant from the UK or require her to leave the UK. The Claimant’s words “I would like to apply ….under my rights to private and family life guaranteed by article 8 of ECHR” do not in terms assert that such removal from the UK would be unlawful but that is their implication. So I conclude the requirements of section 113(1) are fulfilled and the claim was a human rights claim. When one looks at the words used by Claimant One in the application of the 4th March 2015 is seems plain that she is relying on her human rights to buttress her application; she can hardly complain when the Secretary of State takes her at her word.[22]Consequently the claimants have only an “out of country” appeal against the refusal of the application of the 4th March. This result serves as a warning to claimants generally not to over egg the pudding. Including a weak human rights claim in an application can lead to certification as “clearly unfounded” with the loss of in country appeal rights.[23]This conclusion follows simply from the statutory words but I was referred to R (on the application of Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin) in which Mr Stephen Morris QC (sitting as a Deputy High Court judge) glosses those statutory words (para 69, 70). Ms Jegarajah (counsel for the Claimants) points out that para 70 sets as a requirement for a “human right” claim not to be removed from the UK and all that claimants were asking for in their 4th March 2015 application was further leave to remain. This strikes me as too fine a distinction to draw; if the claimants lacked leave to remain they had no right to be in the UK and should anticipate that the Secretary of State might remove them or require them to leave. So the applicant for leave to remain in making their application will have removal in mind. Mr Morris rightly points out, para 96, “whether a person has advanced a claim falling within this definition [of human rights claim] is a question of substance and not form”. It would be elevating form over substance to conclude that a “human rights claim” was not made in this case because it was made to buttress an application for leave to remain rather than to resist removal.[24]So to sum up: on the primary issue – whether the decision of the 6th May was a nullity – I conclude that the decision of the 6th May was not a nullity but took effect according to law. Before turning to consider the second issue – whether the detention was unlawful – there is a technical issue to resolve. When did the decision of the 6th May take effect.[25]The Immigration Act 1971, section 4(1) provides that “…the power [under this Act] to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.” (See also Immigration (Continuation of Leave)(Notices) Regulations 2006(2006 No. 2170), regulation 2.)[26]From this it seems clear that a decision not to grant leave to remain (such as the decision of the 6th May) had to be exercised by the Secretary of State by notice in writing given to the person affected. Notice in writing was only given to the claimants on the 11th June 2015; and that consequently it seems to me prudent to proceed on the basis that that date was the date on which the refusal of leave took effect.[27]The Immigration Act 1971, section 3C, referred to above, provides for the “automatic” extension of leave pending a variation decision. The text (omitting material currently irrelevant) is as follows: E+W+S+N.I. “(1) This section applies if—(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,(b) the application for variation is made before the leave expires, and(c) the leave expires without the application for variation having been decided. (2) The leave is extended by virtue of this section during any period when— (a) the application for variation is neither decided nor withdrawn, (b)…. (c)….” (a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave, (b) the application for variation is made before the leave expires, and (c) the leave expires without the application for variation having been decided. (a) the application for variation is neither decided nor withdrawn, (b)…. (c)….”[28]It is clear that the Claimants’ application of the 4th March falls within section 3C(1). It was made by persons with limited leave to remain, the application was made before the existing leave expired on the 6th March (see para 3) and that leave expired before the application of the 4th March was determined. It thus follows that, under section 3C(2) (a), the claimants’ leave was extended until the determination of the application.[29]Since the 11th June is the date on which the refusal of further leave took effect it is prudent to proceed on the basis that leave came to an end on that day. It follows that the Claimants were not over stayers prior to the 11th June 2015. The evidence is confused as to exactly when on the 11th June service of the decision of the 6th May took place but it seems likely that they were detained before they were served, and thus there was a period of time (perhaps two or more hours but the precise time is uncertain) in which they were in detention but they still had leave to remain (under section 3C).

The second issue: unlawful detention

[30]This means that the Claimants were lawfully detained from the 11th until their release on the 26th June. This disposes of the heart of the Claimants’ claim for unlawful detention. But it remains the fact that the Claimants were arrested and detained at a time that they were not over stayers. Does this entitle them to a remedy? Unfortunately for the Claimants, it does not follow from this that the detention was unlawful. This is because they were detained under Schedule Two of the Immigration Act 1971.[31]Para 16(2) of that Schedule provides:
“If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given [as an over stayer], that person may be detained under the authority of an immigration officer pending—(a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions.”
(emphasis added). What this means is that a person may be lawfully detained even if they are not in fact an over stayer provided that there are reasonable grounds for suspecting that they are such a person.[32]Thus the question resolves itself into whether the immigration officers who effected the arrest and detention had reasonable grounds for suspecting the claimants were over stayers.[33]My attention was directed to R (Mohammed (Shahpoor)) v Secretary of State for the Home Department [2014] EWHC 4317 where it was held that ‘the words “reasonable grounds for suspecting” in paragraph 16(2) did not include reasonable grounds for “believing” or “understanding” and so did not include grounds based on a mistake of law but were confined to grounds based on mistake of fact only”’ (these words come from the headnote to the case in the WLR).[34]Immigration Officer Maleha Mahmood in her statement describing the “enforcement visit” on the 11th June was clear that the application of the 4th March 2015 was “refused on the 06/05/2015 and the documents were served on file”. Quite what is meant by “served on file” was never clear (but it seems to imply that there was no physical service and that is the basis on which I have proceeded). On one view this was an error of law: IO Mahmood misunderstood or did not know about section 4(1) of the 1971 Act. On the other hand, Claimant One’s own account of her detention in her witness statement (para 12) has the officers insisting that the refusal letter had been sent on the 6th. This would be in error of fact.[35]On balance it seems to me that the distinction drawn by the learned Deputy Judge in Shahpoor is too fine for this case. I need to decide in the round whether the suspicions of the officers who took the Claimants into detention were reasonable or not. On balance it seems to me that they were. There was a hiatus over the service of the decision of the 6th May and that is regrettable; but it is insufficient to deny the officers the protection of para 16(2) of the Schedule.

Conclusions and Miscellaneous

[36]In the event I have found against the Claimants on both issues. On the first issue the decision of the 6th May was valid and, once served, brought to an end the Claimants’ leave to remain and renders them liable to detention and removal. On the second issue, while there might have been a short period of time – to be counted in hours – in which they were in detention but had leave to remain, I have reached the conclusion that during that period the officers who effected the detention were protected by para 16(2) of Schedule Two of the 1971 Act.[37]I have considerable sympathy with the Claimants. The events of the 11th June 2015 must have been most unpleasant for them. It is not clear to me that it was necessary for them to be taken into detention before they were informed of that their application for further leave had been refused. But there is no escaping the fact that the decision of the 6th May was not a nullity; that means that the Claimants have no leave to remain in the UK and are liable to be removed.[38]Both these applications for judicial review are consequently dismissed. Since this was a “rolled up” hearing I should formally say whether I grant permission or not. In my view both the issues raised were arguable and it is thus appropriate that permission should be given.