Iqbal, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 79 (Admin)

Case No CO/559/2016

[2017] EWHC 79 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 24/01/2017

Before

KARON MONAGHAN QC

Sitting as a Deputy High Court Judge:

Between

THE QUEEN (on the application of SHAHID IQBAL)Claimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Mr Biggs (instructed by Mayfair Solicitors) appeared for Claimant

Mr Tankel (instructed by the Government Legal Department) appeared for Defendant

Hearing Hearing dates: 6 December 2016

Judgment

KARON MONAGHAN QC:

Introduction

[1]This claim concerns a decision to refuse the Claimant entry to the UK as a Tier 2 (General) Migrant on 10th February 2015 and to detain him until his release on 12 January 2015. This followed a decision to remove the Claimant, made under section 10(1) of the Immigration and Asylum Act 1999 (“IAA”) dated 26th January 2016. The decision to remove was based upon the Defendant’s finding that the Claimant had submitted a certificate from Educational Testing Service (“ETS”) to his sponsor in order for them to provide him with a Confirmation of Acceptance of Studies (“CAS”), for the purposes of an earlier application for leave to remain as a student. This is one of a large number of “ETS cheat” cases (as they have come to be known).

[2]The Claimant contends that he had not engaged in any such deception and that the decision of 26th January 2015 is susceptible to judicial review. The Claimant says that it is necessary for the court to decide the existence or non-existence of the relevant precedent fact upon which the exercise of the power under section 10 depended: that is, whether the Claimant had used deception in seeking leave to remain. The Claimant further contends that there was no lawful basis for the decision to remove him since he had not been “notified” of the section 10 decision and in addition he was outside the UK at the date upon which the Defendant says he was notified. The Claimant contends that if the decision under section 10 was unlawful, as having no lawful basis for it, then it must follow that his detention was unlawful.

[3]It is necessary to say something about the unsatisfactory background to the hearing. I have set out in short form the Claimant’s claim. In response the Defendant filed Summary Grounds of Defence on 30th March 2015. These included generic claims concerning matters relating to the English language tests conducted by ETS, in particular that significant fraud in the taking of such tests by, for example, the use of proxy test-takers, had been uncovered. The Defendant also stated in her Summary Grounds that following a thorough investigation by ETS, once the allegations of widespread fraud became known, ETS informed the Defendant that the Claimant’s test score had been cancelled “due to substantial evidence of invalidity being present”. This was said to be because ETS’s voice software had indicated that the Claimant’s language test score was obtained by use of a proxy tester. The Defendant filed two generic witnesses statements (that is, not addressing the Claimant’s case specifically) with her Summary Grounds which I will come back to. The Defendant’s position was that the section 10 decision was lawfully made and that it was properly notified and that in consequence the detention was lawful. The Defendant had also contended that permission should be refused because of the alternative remedy available to the Claimant, namely an appeal to the First-Tier Tribunal.

[4]At an oral renewal hearing on 26th April 2016, permission to apply for judicial review was granted by HHJ Gore (sitting as a Judge of the High Court). I am told by counsel that an application had been made by the Defendant (I assume before that date) to stay this claim pending determination of a lead ETS cheat claim but that was unsuccessful. HHJ Gore gave the usual directions and therefore directed that detailed grounds for contesting the claim were to be filed and served along with any written evidence within 35 days of the date of his order (in accordance with CPR r54.14). On 6th June 2016 the Defendant applied for an extension of time in which to file and serve her Detailed Grounds of Defence until 30th June 2016 and that application was granted. I am told by counsel that a further application for a stay was made by the Defendant thereafter - again to await the decision in the lead ETS cheat case and again this was refused. However, the Defendant did not file and serve Detailed Grounds of Defence or any further evidence.

[5]This hearing was listed thereafter with a time estimate of one day for the full hearing of this claim. According to counsel for the Defendant, Mr Tankel, some discussions took place during July with a view to compromising the claim. There was correspondence that I have seen which indicates that the Secretary of State had agreed to withdraw the decision of 10 February 2015 (refusing leave to enter) (see letter dated 15 July 2016) on terms that were ultimately not agreed. The Defendant, however, did not then or at any time thereafter file or serve Detailed Grounds of Defence or further evidence. As Mr Tankel fairly says, this appears to have been borne out of a misplaced hope on the part of the Defendant that the case would “develop differently”.

[6]Instead on 5th December 2016 – the day before the hearing – the Defendant wrote to the Claimant and the Court stating that she would withdraw the decision under section 10, enclosing a draft consent order confirming in its preamble that the decision was withdrawn and that it should therefore “be treated as having no legal effect”. The preamble also stated that:

“The Defendant agrees that “notice of a decision purportedly pursuant to section 10 of the Immigration and Asylum Act 1999... was not given to the Claimant until after he returned to the UK”

. The terms of the draft consent order required the Claimant to withdraw his claim save his claim for damages for unlawful detention which it was said should be transferred to the Queen’s Bench Division (“QBD”). Later in the day (about 6pm), the Defendant served some further evidence on the Claimant. The only relevant evidence it appears from argument before me concerns the “Look up Tool” which I will come back to. Suffice it to say for now that it was not filed with the court and it was not drawn to my attention until the afternoon of this hearing.

[7]Accordingly the claim came before me for a full hearing without the Defendant having filed or served Detailed Grounds of Defence. The Defendant had served a Skeleton Argument shortly before the hearing in which she argued that the whole matter should be transferred to the QBD. This would be in respect of the detention claim only since everything else had fallen away. The Claimant submitted to me that that was not the appropriate course because the Defendant does not concede that the decisions were unlawful and so it is necessary to determine the legality of the decisions for the purposes of determining whether the detention was lawful or unlawful: if unlawful, the claim can then be transferred to the QBD for damages to be assessed. The Defendant’s counsel made clear to me, however, that the Defendant was not ready to proceed on the legality question and that she did not wish me to go ahead with this hearing because there were no Detailed Grounds of Defence (and indeed, as became clear later on and as I will come back to, relevant evidence on which the Defendant would have wished to rely had not been filed). The Claimant was adamant that the hearing should proceed and reminded me that CPR r 54.14 precludes the Defendant from taking any part in the proceedings because she has failed to file Detailed Grounds and she had not applied for relief from sanctions.

[8]At the outset of the hearing I determined that the claim should proceed in the Administrative Court. The question whether the decisions were lawful is a matter for this court to determine on ordinary public law principles, bearing in mind that the Defendant still asserts that they were lawful and that in consequence the detention was lawful. If I conclude that the detention was unlawful, it is at that point that the matter should be transferred to the QBD for the assessment of damages. I also determined that I should proceed to hear the claim. This is because there was simply no good reason why the Defendant was not ready. It was apparent some time ago that a stay would not be granted and that a settlement was not going to be achieved. There was no explanation provided by the Defendant at all as to the reasons for failing to file and serve Detailed Grounds of Defence. At best I have counsel’s deduction that it was borne out of “misplaced hope”. That is not a good explanation. It was not even clear why the decisions under challenge had been withdrawn or indeed, at certain points in oral argument, which decisions had been withdrawn (whether the section 10 decision or the decision to refuse entry only). Certainly it was not conceded that the decisions were unlawful. Mr Tankel (to whom I am very grateful for the considerable assistance he was able to provide to me in difficult circumstances) conveyed his instructions that the decision of the 26th January (on which the other decisions rested) was revoked because the Claimant asked the Defendant to revoke it. This notwithstanding (as Mr Tankel was also able to inform me) that the Defendant intended to make a new decision – against which (if unfavourable), the Claimant would not have the right of appeal (the rules on appeals having changed since the date of the earlier decision).

[9]Having decided to go ahead with the hearing, that left the question of the Defendant’s position since she is barred from taking part in these proceedings unless I directed otherwise. Mr Biggs agreed that notwithstanding the absence of any formal application or explanatory evidence, the Defendant should be permitted to take part in the hearing and contest the claim on the basis that she was not entitled to rely on anything other than her Summary Grounds of Defence and the evidence she had already filed. For no doubt obvious reasons, given that I had ordered the hearing would proceed, Mr Tankel did not (at least at the outset) demur. I therefore decided that notwithstanding the terms of CPR R54.14, the Defendant was permitted to contest the claim on the basis of such material as she had filed in support of her Summary Grounds. As I come back to below, later in the hearing I did have to return to the question whether the Defendant should be permitted to rely on further evidence (again not the subject of any formal application).

Factual Background

[10]With that rather lengthy introduction, I turn now to the factual background to the claim. The Claimant first entered the UK as a student on 23rd February 2011. Following successful completion of his MBA course, he was offered employment and accordingly needed to apply for a variation of his leave. In due course, the Claimant made an application for leave to remain as a Tier 2 (General) Migrant and was granted such leave until 28th June 2017. At some point the Claimant had provided to the Defendant evidence that he had taken and passed a Test of English for International Communication (“TOEIC”) conducted by ETS in support of an application for leave to remain. It appears that this was in about October 2013 at a time when he was applying for further leave to remain as a student.

[11]On 9th January 2015, the Claimant’s wife was granted a Tier 2 dependent visa as the Claimant’s spouse in order to join the Claimant in the UK. On 29th January 2015, the Claimant travelled to Pakistan. The Claimant returned to the UK along with his wife on 10th February 2015.

[12]In the meantime, the Defendant had made a decision dated 26th January 2015 under section 10, IAA to remove the Claimant. The notice recording the decision (IS.151A: “Notice to a Person Liable to Removal”) gives the following reasons: “You are specifically considered a person who has sought leave to remain in the United Kingdom by deception. For the purposes of your application dated 07 October 2013, you submitted a certificate from Educational Testing Service (“ETS”) to your sponsor in order for them to provide you with a Confirmation of Acceptance of Studies. ETS has a record of your speaking test. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by use of the proxy test taker. Your scores from the test taken on 28 August 2013 at Premier Language Training Centre have now been cancelled by ETS. On the basis of the information provided to her by ETS, the SSHD is satisfied that there is substantial evidence to conclude that your certificate was fraudulently obtained”.

[13]This was accompanied by notice of a decision to remove (IS.151A Pt2) dated 26th January 2015. The notice stated that it had been served on 29th January 2015. I return to this below.

[14]On arrival at Heathrow Airport on 10th February, both the Claimant and his wife were stopped and detained and the Claimant informed that his leave had been cancelled because he had fraudulently obtained an ETS certificate to extend his studies in the UK and that a decision had been made to remove him. The Clamant and his wife were served with notices of refusal to enter. The Claimant and his wife were detained until 12th February 2015 when they were released and temporary admission granted, their solicitors having by then issued this judicial review claim on 11th February 2015. I understand that separate proceedings are taking place in respect of the refusal of entry and detention of the Claimant’s wife.

The Claim and Defence

[15]As I have summarised above, in his Grounds and as elaborated upon in his oral submissions, the Claimant contends that: a) The Claimant was not notified of the decision under section 10 and accordingly his leave had not been invalidated (and continued notwithstanding that he had left the UK for a period); b) The purported notification occurred while the Claimant was outside of the UK and so the decision to remove was not valid since a decision to “remove” cannot as a matter of logic be made in respect of a person outside the UK; c) The question whether there was power to remove under section 10 depends upon proof of a precedent fact (“deception”) and the existence or non-existence of that fact is a matter for the court to determine, the Claimant having denied that he committed the deception alleged; d) The Defendant could only have prevented the Claimant’s entry by cancelling the Claimant’s leave and this would have provided him with an in-country right of appeal, an entitlement to work in the meantime and would have precluded detention.

[16]For these reasons, the Claimant asserts that his detention was unlawful.

[17]The Defendant, in her Summary Grounds of Defence, contends that: a) The decision to remove the Claimant under section 10 was made on the basis of the cancellation of the Claimant’s test score by ETS due to substantial evidence of invalidity arising from their review of the Claimant’s test which indicated that the Claimant had used deception in seeking leave to remain via the use of a proxy test-tester; b) The decision to remove was served on the Claimant on 28 January 2015 while he was still in the UK; and c) The Claimant’s detention was lawful since he was a person in respect of whom a lawful decision to remove had been made and accordingly was liable to detention and the Hardial Singh principles were satisfied for the whole period of his detention.

[18]The Defendant put in issue the question whether judicial review was the right mechanism for challenging the lawfulness of the section 10 decision (as opposed to an appeal to the First-Tier Tribunal) but that matter has fallen by the wayside since permission to proceed by way of judicial review has been granted and no one now suggests that the claim should not be heard in the High Court. As stated above, the only issue, which I resolved at the outset, was whether it should be heard in the Administrative Court or transferred in toto to the QBD.

Legal Background

[19]Article 13, Immigration (Leave to Enter and Remain) Order 2000 provides that:

“13.—(1) In this article “leave” means— (a) leave to enter the United Kingdom (including leave to enter conferred by means of an entry clearance under article 2); and (b) leave to remain in the United Kingdom. (2) ... [W]here a person has leave which is in force and which was: .... (b) given by an immigration officer or the Secretary of State for a period exceeding six months, such leave shall not lapse on his going to a country or territory outside the common travel area. .... (4) Leave which does not lapse under paragraph (2) shall remain in force either indefinitely (if it is unlimited) or until the date on which it would otherwise have expired (if limited), but— (a) where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse; and any conditions to which the leave is subject shall be suspended for such time as the holder is outside the United Kingdom. (5) For the purposes of paragraphs 2 and 2A of Schedule 2 to the Act (examination by immigration officers, and medical examination), leave to remain which remains in force under this article shall be treated, upon the holder’s arrival in the United Kingdom, as leave to enter which has been granted to the holder before his arrival.”

[20]Accordingly, the default position is that where the holder of leave is outside of the country for a period of less than two years (as was the case with the Claimant in respect of his trip to Pakistan) so long as his leave to remain exceeds six months (as was the case with the Claimant), his leave remains extant and it is to be treated upon his arrival in the United Kingdom as leave to enter which had been granted before his arrival. Thus, absent any other factor, the Claimant was entitled to enter the United Kingdom upon his return on 10th February 2015.

[21]By paragraph 16(2), Schedule 2 of the Immigration Act 1971, if there are reasonable grounds for suspecting that a person is someone in respect of whom removal directions may be given that person may be detained under the authority of an immigration officer pending a decision whether or not to give such directions and his removal in pursuance of such directions. Accordingly, there is a limited power of detention on arrival for this purpose.

[22]Paragraph 321A, Immigration Rules (“IR”) provides that:

“The following grounds for the cancellation of a person’s leave to enter or remain which is in force on his arrival in, or whilst he is outside, the United Kingdom apply; (1) there has been such a change in the circumstances of that person’s case since the leave was given, that it should be cancelled; or (2) false representations were made or false documents were submitted (whether or not material to the application, and whether or not to the holder’s knowledge), or material facts were not disclosed, in relation to the application for leave....”

[23]An appeal against a decision to cancel leave under paragraph 321A was at material times appealable under section 82(2)(e) and 92(3B), Nationality, immigration and Asylum Act 2002. This is significant because section 3D, Immigration Act 1971 provides that:

“(1) This section applies if a person's leave to enter or remain in the United Kingdom— (a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or (b) is revoked. (2) The person's leave is extended by virtue of this section during any period when— (a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or (b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).”

[24]Accordingly, if a decision to cancel leave under paragraph 321A had been made in the Claimant’s case then he would have enjoyed an in-country right of appeal and would have been permitted to reside in the UK pending that appeal with his visa conditions (including in his case a right to work) intact, precluding the right to detain.

[25]In sum then and as is apparent from the effect of the provisions above, the Claimant’s leave remained extant during the course of his trip to Pakistan; on his return from Pakistan he was entitled to enter and had there been a cancellation of his leave under paragraph 321A IR this would (at that time) have come with a right to appeal, pending which his leave would have been extended automatically to enable him to exercise that right.

[26]However, in addition to the above and as is in issue in this claim, section 10(1), IAA provides that:

“A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if – (a).... (b) he uses deception in seeking (whether successfully or not) leave to remain; .......”

[27]By section 10(8), IAA:

“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.”

[28]“Notification” for section 10(8) is not defined in the IAA.

[29]Regulations 4 to 7 (as is material) of the Immigration (Notices) Regulations 2003 (“2003 Regulations”) provide that:

“4.(1) Subject to regulation 6, the decision-maker must give written notice to a person of any decision taken in respect of him which is appealable under section 82(1) of the 2002 Act or any EEA decision taken in respect of him which is appealable. ....... 5.(1) A notice given under regulation 4(1)— (a) is to include or be accompanied by a statement of the reasons for the decision to which it relates; . . . ....... (3) The notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of— (a) his right of appeal and the statutory provision on which his right of appeal is based; (b) whether or not such an appeal may be brought while in the United Kingdom; (c) the grounds on which such an appeal may be brought; and (d) the facilities available for advice and assistance in connection with such an appeal. ......... 7.(1) A notice required to be given under regulation 4 may be- .......... (c) sent by postal service in which delivery or receipt is recorded to:- (i) an address provided for correspondence by the person or his representative; ..........” (c) sent by postal service in which delivery or receipt is recorded to:- (i) an address provided for correspondence by the person or his representative; ..........”

[30]As I will come to, the Defendant says that these Regulations have the effect that the Claimant was indeed “notified” of the decision under section 10 when it was sent and delivered by recorded delivery, arriving on 30th January 2015 (as the Defendant now accepts is the relevant date). The Claimant contends that the 2003 Regulations are concerned with something entirely different, namely the notification of a right of appeal against a relevant immigration decision (as occurred in the Claimant’s case by delivery of IS.151A Pt 2 which states that the Claimant has a right of appeal). I will come back to this when I deal with my conclusions.

[31]As to the Court’s role in determining the lawfulness of a decision under section 10, since the lawfulness of the power depends upon proof of a precedent fact, it is for the court to determine whether that fact existed (ie whether it is proven): see, R (Lim and and Slew v Secretary of State for the Home Department

[2007] EWCA Civ 773

; [2008] INLR 60, paras 6 and 8 and see, R (Giri) v Secretary of State for the Home Department

[2016] 1 WLR 4418

. The relevant dicta in both cases was obiter but both are Court of Appeal cases and notably the proposition that in a section 10 case such as this, “the court would need to determine for itself whether [the Claimant] had breached the conditions of his leave" (para 8) was accepted as an accurate statement of law by the Secretary of State in Lim. Mr Tankel asked me to consider R (Ahmed) v Secretary of State for the Home Department

[2016] EWCA Civ 303

, particularly paragraphs 25 – 30. However, that case is concerned with a very different issue (namely, whether the appellant could lawfully be removed pending the determination of his appeal against the refusal of a residence card as the family member of an EEA national) as the Court of Appeal made clear (paras 60 and 63).

[32]I therefore reject Mr Tankel’s submission that the Court’s role is limited to determining whether the Secretary of State’s decision was Wednesbury unreasonable. It is for me to determine whether the existence of precedent fact (deception) is proved, on which the lawfulness of the section 10 decision is dependent.

[33]The Defendant, through counsel, accepts that if the section 10 decision was unlawful, then the detention was unlawful. Mr Tankel had floated in his Skeleton Argument the possibility that the detention might have been lawful whatever the position in relation to section 10 because of the power to detain for the purposes determining whether a person has an entitlement to enter the UK (or, presumably, pursuant to Schedule 2, paragraph 16(2), Immigration Act 1971 above). However, this submission was made very tentatively in oral submissions and Mr Tankel acknowledged that it was “speculative”. There was in fact no evidence to indicate that the Claimant was detained for any other reason than the decision under section 10 and the accompanying decision to remove, and upon which the Defendant has to date relied. As Mr Biggs said, it would hardly take two days (that is the period of detention) to determine that there was a section 10 decision in force in respect of the Claimant. In any event, as I have said there is no evidence that the decision to detain was based on anything other than the decisions in issue in this case – if they are not lawful then nor is the detention.

The Evidence

[34]The Claimant has filed a witness statement setting out the circumstances of his detention and exhibiting proof of delivery of the section 10 notification on 30th January 2015, while he was out of the country. In that witness statement, the Claimant also denies any deception. He states that he sat the ETS TOEIC test and obtained the qualification and that he has never used deception to obtain leave to remain in the UK or to obtain a CAS from his sponsoring college.

[35]The Defendant has filed two generic witness statements with her Summary Grounds of Defence. The statements were prepared for the case of Mohammed but I am told by counsel that they are now routinely adduced in ETS cheat cases as part of the evidence that the Defendant will rely upon (and they are indeed referred to in some of the cases to which I have been referred). These statements are from Peter Millington an Assistant Director at the Home Office and Rebecca Collings also employed at the Home Office with responsibility for overseeing the delivery of the Secure English Language Test (“SELT”) - in ETS’s case that was the TOEIC. They together explain that ETS was one of the approved providers of SELTs and in around 2013 concerns arose from what was regarded as suspicious levels of certificates issued with “top scores”. At that time ETS verified those scores as genuine but thereafter following an investigation by the BBC programme Panorama the Home Office suspended ETS’s licence and commenced a through investigation. The Panorama investigation revealed widespread cheating in the taking of the SELTs at ETS sites. This included by the use of proxy test-takers. Following further work ETS said that it had identified impersonation and proxy-testing, using voice recognition software. In due course test results were cancelled where the same voice for multiple test-takers was identified. The witness evidence gives a detailed description of the methods used which included voice recognition technology and an additional “human” verification process, and of the work undertaken to ensure the reliability of these methods. Where a proxy was said to have been used the test result would be invalidated. According to Mr Millington, where there was doubt about the validity of a match, the outcome would be rejected so mitigating against the risk of a false negative. However, it appears that “questionable” results (ie where the results of the voice recognition process were inconclusive) might still be cancelled on the basis of test administration irregularity (including the fact that the test was taken at a site where numerous other results had been invalidated). The extent of the ETS cheating was very, very significant (in the thousands and perhaps tens of thousands).

[36]This was the only evidence the Defendant adduced in this claim. As will be obvious, the statements of Ms Collings and Mr Millington show widespread fraud but they show nothing about the Claimant. It is of note, too, that the evidence of Ms Collings and Mr Millington has been the subject of judicial criticism. In SM Qadir v Secretary of State for the Home Department (ETS-Evidence-Burden of Proof)

[2016] UKUT 00229 (IAC)

the President of the Upper Tribunal (McCloskey J) addressed the evidential basis for ETS cheat cases. As in other cases, generic evidence in the form of the same witness statements from Ms Collings and Mr Millington as have been relied upon in this claim were adduced, and in addition both gave oral evidence. McCloskey J observed in that case, “As the onus rests on the Secretary of State to prove that both Appellants were guilty of fraud in the respects alleged, we shall begin with our findings and conclusions in respect of the evidence adduced on her behalf. We have considered all of the evidence adduced on behalf of the Secretary of State. The evidence of Ms Collings and Mr Millington forms the backbone of the Secretary of State’s case. ..... We are satisfied that Ms Collings and Mr Millington gave truthful evidence. However this neither counterbalances nor diminishes the shortcomings in their testimony” (para 62).

[37]A number of shortcomings are then enumerated and they apply equally to this case. It is not necessary for me to list them all but they include the fact that neither witness had any relevant qualifications or expertise, vocational or otherwise, in the scientific subject matter of these cases, namely voice recognition technology and techniques, and that in making its decisions in individual cases, the Home Office was entirely dependent on the information provided by ETS and there was no evidence from any ETS witness.

[38]I am told by counsel that the ETS cheat claims are generally addressed (where legal challenges to the curtailment of leave/refusal of entry are mounted) by the adducing of these two witness statements in evidence and a copy of a relevant extract from the “ETS Lookup Tool”. The ETS Lookup Tool is a spreadsheet in which details of a candidate (name, country of origin, certificate number, test centre etc) are recorded. It states that a result is “invalid” or “questionable” but does not state a reason for this. I am told by counsel that this is generally regarded as adequate to establish a prima facie case that the claimant or appellant in any particular case is guilty of cheating, that is without any statement or other evidence attesting to the accuracy or source of the spreadsheet or identifying how it is known that it refers to the particular claimant or appellant (who may, presumably, have the same name as that of others given the vast numbers of people involved) or indeed to the other matters adverted to in SM Qadir. I confess to having expressed surprise at this. Mr Tankel referred me to Secretary of State for the Home Department v Shehzad and Chowdhury

[2016] EWCA Civ 615

(paras 19 to 22 and 30), another ETS cheat case, in which the “principal evidence” relied on by the Secretary of State was that of Mr Millington and Ms Collings which, as the Court of Appeal, observed “did not show the exact reason why ETS invalidated the certificate of a particular person or provide evidence relating to the personal circumstances of an individual” (para 12) but in addition “a screenshot of the results including the tests of Messrs Chowhury and Shehzad” (ibid.) and the relevant extract from the ETS Lookup Tool (para 25). The Court of Appeal described the burden and standard of proof in the following terms:

“It is common ground that for a decision to be made under paragraph 322(1A) there must be material justifying a conclusion that the individual under consideration has lied or submitted a false document. It is also common ground that the Secretary of State bears the initial burden of furnishing proof of deception, and that this burden is an “evidential burden”

. That means that, if the Secretary of State provides prima facie evidence of deception, the burden “shifts” onto the individual to provide a plausible innocent explanation, and that if the individual does so the burden “shifts back” to the Secretary of State....” (para 3).

[39]Citing Baroness Hale in Re B (Children)

[2008] UKHL 35

[2009] 1 AC 11

(para 70), the Court of Appeal in Shehzad and Chowdhury observed that the standard of proof applicable is the balance of probabilities and that “neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies” (para 3).

[40]The Court of Appeal concluded ultimately that the generic statements, the screenshot and the relevant extract from the ETS Lookup Tool were sufficient to satisfy the evidential burden of showing dishonesty that lay on the Secretary of State (para 26). However, the Court of Appeal also made clear that where the generic evidence is not accompanied by evidence showing that the individual under consideration’s test was categorised as “invalid”, the Secretary of State would face a difficulty in respect of the evidential burden at the initial stage (para 30) for obvious reasons. Where the Secretary of State does discharge the evidential burden at the first stage, of course the claimant or appellant is entitled to adduce evidence of a plausible explanation for the invalidating of his test, other than cheating, or that the particular test was wrongly attributed to him or whatever. It is right to say that the fact sensitive nature of these inquiries does mean that judicial review is not a natural place for such disputes to be resolved. However, as I observed above permission has been granted to proceed by way of judicial review in this claim and in any event the lawfulness of the decision only arises now in the context of the unlawful detention claim since the decision itself has been withdrawn and so that issue is properly a matter for this court.

[41]In this case, the only evidence adduced by the Secretary of State has been the generic evidence. She did not, as I have said, file evidence linking the Claimant to any cheating whether by the ETS Lookup Tool or otherwise. However, at the hearing, in oral submissions (not in his Skeleton Argument), Mr Tankel indicated to me that there was indeed an entry for the Claimant in the ETS Lookup Tool. As I have said, this was disclosed to the Claimant’s representative the night before the hearing. Mr Tankel had not made any application to put the document into evidence at the beginning of the hearing; he did not notify me of its existence until the afternoon of this hearing, and his solicitor had not brought a copy to court and so he was unable to provide me with one. I was sent a copy after the hearing. It comprised an extract of a spreadsheet with the name “Shahid Iqbal” whose nationality is stated to be “Pakistan” on it and other details (the site at which the test was said to be taken etc). Once its existence had been notified to me, Mr Tankel applied to introduce it into evidence (albeit at that point he was not able to show me it). I was given no explanation as to why it had not been served earlier beyond that given (such as it was) for the failure to provide Detailed Grounds of Defence.

[42]I have concluded that it is far too late to admit this evidence. There is no proper explanation for the delay in filing and serving it. It is inexplicable that the Defendant’s own counsel had not been provided with a copy, and his solicitors did not bring a copy, for this hearing. The Claimant would be truly prejudiced by granting an application to adduce it in evidence after the hearing, especially given that it is said by the Defendant that when alongside the statements of Mr Millington and Ms Collings it establishes a prima facie case. I note that there is nothing filed with the spreadsheet evidencing that it refers to the Claimant. But even if this is not regarded as necessary, the Claimant has said that he would wish to produce evidence in rebuttal of any inference that he was guilty of cheating, such as to the extent of his facility with the English language at the time he took the test. This would include evidence that he undertook an MBA in English, among other things. The Claimant’s counsel submits, therefore, that there is evidence indicating that there would simply have been no reason for the Claimant to take the test through a proxy because he could manage sufficiently well himself.

[43]In the absence of any explanation for the delay and the prejudice that would be caused to the Claimant by its admission, I refuse the Defendant’s very late application to adduce it. This means that while there is compelling evidence of widespread fraud before me, there is no evidence that this Claimant’s test had been invalidated by ETS in consequence.

Conclusions

[44]Although the Defendant states in her Summary Grounds of Defence that the Claimant was served with notice of the decision to remove under section 10 on 28th January 2015, in fact, as is apparent and now accepted, this is not so. It was delivered by post to his home on 30th January 2015. By this time the Claimant was out of the UK. The Claimant contends that he had not therefore been served with notice under section 10(8) before his departure and accordingly the Defendant had no lawful basis for refusing him entry and detaining him upon his return. The Claimant submits that the failure to effect actual service upon him and the fact that he was out of the country at the time of purported service both mean that any decision under section 10 did not curtail his leave or deprive him of his right to enter both of which he says, were preserved by Article 13 of the Immigration (Leave to Enter and Remain) Order 2000. Mr Biggs submits that the 2003 Regulations do not apply so as to meet the requirement of “notification” under section 10(8) for two reasons together or in the alternative: firstly, because the 2003 Regulations are directed at something altogether different, namely notifying a person of their right to appeal and secondly, because read with section 10(1), the requirement for notification in section 10(8) cannot be met when the person concerned is outside the UK.

[45]As to the first reason, I accept Mr Biggs’ point that a function of the 2003 Regulations is to ensure that a person knows of their appeal rights and to trigger time limits but I do not accept that there is anything on their face indicating that that is their only function. As is clear from the extract above, it requires the notice to contain reasons. Of course that will facilitate an appeal (or a decision whether to appeal) but it has a value in itself. In any event the 2003 Regulations do not say that a person must be given notice of their right to appeal any decision that is appealable; they say that “the decision-maker must give written notice to a person of any decision taken in respect of him which is appealable” – those are very different things. However, Mr Biggs also relies on the well known passage in the speeches of Lord Steyn in Anufrijeva v Secretary of State for the Home Department

[2004] 1 AC 604

, that “notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he ...wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system” (para 26). As Lord Steyn observed, Parliament can, if it chooses, legislate contrary to fundamental principles of human rights but if it is to do so, it must do so in clear and unambiguous terms. In conclusion: “The rule of law requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected” (paras 27-28). I accept Mr Biggs’ contention that this dicta fortifies his submission that nothing less than actual notice is required under section 10(8) and the clear terms of section 10(8) requiring “notification” are not displaced by what is in truth a provision allowing for constructive or deemed service in the 2003 Regulations.

[46]Given the draconian effect of a decision under section 10(1) and the requirement for notification to give it effect, in my judgment only actual service will suffice. Mr Tankel has argued that this would mean that the Secretary of State could not never invalidate leave under section 10 without knowing precisely where the holder of leave is and knowing whether s/he is in or out of the country. But as Mr Biggs says since a person can only be “removed” (section 10(1)) once they have been found there is nothing impractical about requiring actual notice. Further, the position contended for by Mr Tankel could produce the very results that occurred in this case: that without the holder of leave’s knowledge a decision is made which leads to their barring of entry and their detention, for reasons of which they are entirely unaware in circumstances where they understood that they had leave to enter. To my mind there is nothing in section 10 which indicates that Parliament contemplated such a draconian result when it enacted section 10(8) or that the clear language in section 10(8) is displaced or affected by the 2003 Regulations.

[47]My view is strengthened by the form of notice in a section 10 case as exemplified by the course adopted in the Claimant’s case (and I have no reason to believe his was an untypical case). Form IS.151A (dated 26th January 2015 in the Claimant’s case) is headed “Notice TO A PERSON LIABLE TO REMOVAL (illegal entrants and section 10 administrative removal cases)”. It makes no mention of the 2003 Regulations. Form IS.151A Part 2 (also dated 26th January 2015) which gives the Claimant notice of his right to appeal, on the other hand, states “NOTICE OF IMMIGRATION DECISION: In compliance with the Immigration (Notices) Regulations 2003....”. Accordingly, whatever might be the other benefits of notice under the 2003 Regulations, its primary purpose is notification of a right of appeal and in my judgment it does not affect they obligation to give actual notification of a decision under section 10(1) before leave is invalidated thereunder.

[48]As to Mr Biggs second argument, overlapping with his first, that notification of a section 10 decision cannot anyway be effected when the holder of leave is outside the UK, he submits that as a matter of logic one cannot be “removed” (section 10(1)) if he is not here. I agree. The Secretary of State, of course, is not left powerless in this situation. She has at her disposal paragraph 321A of the IR which allows for the cancellation of leave but ensures that a person whose leave is cancelled can (or could at material times) effectively enjoy the right to appeal in-country with a preservation of leave in the meantime.

[49]I have dealt with the arguments of the Claimant and the Defendant fully out of respect for the skill and effort with which they have been made. However, even were I wrong in my interpretation of section 10(8) and the 2003 Regulations, in light of my ruling on the ETS LookUp Tool, there is simply no evidence before me that the Claimant was guilty of any cheating. Since I must be satisfied that the Claimant used deception in seeking leave to remain if I am to find that the decision under section 10 and consequential detention were lawful (it being a precedent fact on which a decision under section 10 depends for its lawfulness), the absence of any evidence to that effect is determinative. For completeness, this case is very different, of course, from Secretary of State for the Home Department v Shehzad and Chowdhury where there was both a screenshot of the results of Messrs Chowhury and Shehzad and the relevant extract from the ETS Lookup Tool. The statements of Mr Millington and Ms Collings would by themselves have been (unsurprisingly) insufficient to establish a prima facie case of cheating in the case of a particular Claimant in that case.

[50]Finally, the Secretary of State has indicated that she may make a fresh decision to the same effect - making it even more incomprehensible that she has proceeded in the way that she has. That is a matter for her and for argument in the future if that occurs. I have to determine whether the Claimant’s detention from 10th February to 12th February 2015 was lawful. I have concluded that it was not because there was no lawful basis for it, for the following reasons:(1) the Claimant was not notified of the decision under section 10(1) and so he had leave to enter and remain at the time of his detention;

(2) even if notification was on the face of it effected under section 10(8), it could not be operative since the Claimant was outside the UK at the time, and

(3) there is no evidence that the Claimant used deception in seeking leave to remain.

[51]This claim is now to be transferred to the QBD for the assessment of damages in view of my findings.

Postscript

[52]Following delivery of the draft of this Judgment to counsel (in accordance with the usual practice), Mr Biggs for the Claimant sent to me two cases which he considered ought to be drawn to my attention; R (Khan) v Secretary of State for the Home Department

[2014] EWHC 2494 (Admin)

and R (Islam) v Secretary of State for the Home Department

[2016] EWHC 2491 (Admin)

. Mr Biggs does not contend that my views as expressed in this Judgment should alter in consequence of these cases but rather that I should be made aware of them in case it is thought that they bear on the issues before me.

[53]These cases do not affect my conclusions. As I have referred to above, it was not contended before me that this claim should be transferred to the First-Tier Tribunal. It was argued that the claim should be transferred to the QBD. The cases of Islam and Khan do not bear on that issue. Further, to the extent that there is a discernible difference between the approach of Green J in Khan and that taken in other “precedent fact” cases, in particular on the question whether section 10 requires a court or tribunal to consider whether the “precedent fact” relied upon existed at the time the decision was made, it seems to me that the cases of Lim and Giri (discussed above) express the right approach.