Prof. Elizabeth Cooke :
- This is an application for judicial review of decisions made in relation to the claimant, Ejovi Efenure, to treat him as an illegal entrant, to detain him, to certify his application for asylum as unfounded, and in relation to his student visa. The claimant seeks judicial review of all four decisions, and damages in respect of the detention. He was represented at the hearing before me, on 3 October 2013, by Ms Wilding and the defendant was represented by Mr Jolliffe; I am very grateful to both counsel for their assistance.
The facts
- The following facts are not in dispute. The claimant is a Nigerian national born on 16 December 1976. He obtained a maths degree in Nigeria and became a self-employed web developer. He wanted to improve his prospects of work in Nigeria and so applied to study for an MSc in this country. He arrived here on 2 October 2010 to study for an MSc degree in Computing at the University of Greenwich, with a Tier 4 student visa valid until 31 January 2012, which allowed him to work for up to 20 hours a week. He has a brother in this country and lived with him for part of the time while he was a student, and had some financial help from him.
- In December 2010 he changed course from MSc Computing to MSc Software Engineering; his email to his tutor dated 26 November 2010, asking for the change, explained that "the keyword Engineer" would enable recruiters to see what his skills were; and he said "This point is especially relevant in less developed countries".
- The claimant's visa would have enabled him to finish his MSc course by sitting exams in the summer of 2011 and then submitting his project in October 2011, to attend his subsequent oral examination, and then to graduate in December. But in September 2011 he was advised to take some extra time over his project, and so the submission date was changed to January 2011. That of course caused him problems with the expiry of his visa, because his oral examination and subsequent graduation would take place after the end of January 2012.
- What he needed to do, therefore, was to apply to extend his visa; and had he done so it is likely that all would have been well. But he could not meet the financial requirements for an extension of his student visa, nor could he pay the fee. So he did some research on the internet and concluded that he could apply for discretionary leave without paying a fee. On 29 January 2012 he attended the Public Enquiry office in Croydon to ask about this. He was told that he could only seek discretionary leave if he applied for asylum. So he went upstairs to the asylum office and did so.
- He was interviewed; the interviewing officer came to the conclusion that he had entered the UK by deception in 2010; the claimant was served with form IS151A as an illegal entrant, detained, and placed in the fast track asylum procedure. His asylum and Article 8 claim were certified as clearly unfounded and he was served with removal directions.
- He applied to seek permission for judicial review, probably on 21 February 2012 (the claim form is undated) and for an injunction to prevent his removal. On 22 February 2012 HH Judge Anthony Thornton QC, sitting as a Deputy Judge of the High Court, gave that injunction. The claimant's application for permission to seek judicial review was refused on the papers by HH Judge Rogers sitting as a Deputy Judge of the High Court on 28 March 2012. The claimant renewed his application at an oral hearing on 14 June 2012 and John Howell QC sitting as Deputy Judge of the High Court granted permission. He was released from detention on 15 June 2012.
- Since then the claimant has completed his degree and graduated with an MSc.
The issues
- The issues on the basis of which permission was given, and that have now to be decided, are agreed to be as follows:
i) Was the defendant's decision to treat him as an illegal entrant unlawful?
ii) Was his detention on 29 January 2012 unlawful? If not, did it later become unlawful?
iii) Was the defendant's decision to certify his human rights claim unlawful?
iv) Was the decision to cancel his student leave flawed by the failure to give him notice of his appeal rights pursuant to the Immigration (Notices) Regulations 2003 and, if so, what was the effect of that?
The decision to treat the claimant as an illegal entrant
- The House of Lords in R v Secretary of State for the Home Department, ex p Khawaja [1984] 1 AC 1974 has made it clear that in reviewing the decision of an immigration officer to detain someone as an illegal entrant the court "should appraise the quality of the evidence and decide whether that justifies the conclusion reached" (Lord Wilberforce at p. 105D). The court "should quash the detention order where the evidence was not such as the authorities should have relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularities" (at p. 105E).
- I have to decide whether the defendant's decision, made through her officials on that date, to treat the claimant as an illegal entrant on the basis that he deceived the immigration officers when he entered the UK in 2010 was unlawful, either because it was based on inadequate evidence or because of serious procedural flaws or both.
- The decision was made on 29 January 2012, and was expressed on a form IS151A served on the claimant on that date. I pause to make it clear that that is the decision under review, as is clear from the claimant's form N461. The decision was taken without the information given in the asylum interview that took place later, on 3 February 2012, after the claimant had been detained.
Irrationality
- The immigration officer in taking the decision on 29 January 2012 had to be satisfied to a high standard, although not a criminal standard (Khawaja, above; Lord Fraser of Tullybelton at p 97G). Indeed, the Home Secretary's own guidance to her officers states:
"Undertake a thorough interview under caution to establish illegal entry by deception to a high degree of probability. It is vital that the interview is well-structured and planned, asking appropriate questions to gather all the facts before confronting the person with any discrepancies." (Enforcement Instructions and Guidance, para 3.11; emphasis in the original)."
- In order to assess the quality of the evidence on which the decision was taken, on 29 January 2012, to treat the claimant as an illegal entrant we have to look at the screening interview, which took place when the claimant went to the asylum department of the Croydon office on 29 January 2012. The transcript of the interview shows that it took place at 14:24; the claimant confirmed that he was fit and well and ready to be interviewed, spoke English and understood the interviewer. He was asked "Do you believe that you have a well founded fear of persecution or that there is a real risk you will suffer serious harm if you are removed from, or required to leave, the United Kingdom?" and he answered "Yes". He was asked questions about his identity, his address and so on. He was asked "Have you applied for or been issued a UK visa before coming to the UK?" and he answered, "Yes, tier 4 general".
- Part Four of the interview transcript is headed "Basis of claim summary" and I set out here the first two questions and the claimant's answers:
"Q 4.1 What was your reason for coming to the UK?
A: To study.
Q4.2 Can you BRIEFLY explain why you cannot return to your home country?
A: My main concern is career prospects are very minimal. Studying software engineering.
Q 4.2 continued: Did you know the career prospects were bleak in Nigeria before leaving Nigeria?
A: I changed my course to software engineering, I was looking for work and was self-employed and working from home, home was the family home and did this for 5 years."
- There follow further questions about whether he had claimed asylum elsewhere, whether he had ever been arrested or detained or been involved in terrorist activity and so on, to all of which the claimant answered "no".
- There is then a continuation sheet. The questions are not numbered. Questions and answers are set out side by side in boxes, and the right-hand end of the lines of type have in some places disappeared. I have put square brackets where either a word is missing or where a word is missing and I have made a conjecture:
"Q: When you applied for your visa did you know you were not going to return to Nigeria?
A: No
Q: When did you decide that you would not return to Nigeria?
A: the reason I changed my course was based on career prospects.
Q: You have not visited your family in Nigeria since arriving in the UK. Why?
A: I was not financial buoyant to visit my family.
Q: So if you were not financially buoyant how would you return now?
A: My expectation was to get some part time work in the UK. I have a brother in the UK, but I cannot expect him to support me.
Q: What are your further problems?
A: My submission date was moved from September to January.
Q: But your visa expires in January?
A: But at the end of student visas students are given an extra [ ] months leave for further work if required but I will not m[ ] the points based system, based on funds.
Q: When you applied for our visa was it your intention to start [a] new life in the UK?
A: Yes to study and to apply for study work, but the current situation I am, in I will not be able to meet the financial requirements.
Q: Did you tell the interviewing officer?
A: I was not interviewed until I got to London.
Q: When interviewed in London did you tell the immigration officer it was your intention to start a [new] life in the UK?
A: No.
Q: The immigration offer ask [ ] me what had I been doing?
A; My intention was to study and work afterwards. I felt I wasn't getting anywhere in Nigeria I had spent to[o] much time in Nigeria and thought maybe UK was a place for me."
- The decision to treat the claimant as an illegal entrant was taken as a result of this interview; he was served with form IS151A, headed "Notice to a person liable to removal".
- It is well-established that silence can be a deception, if it is a matter of concealing a material fact. But it is not possible to see from the interview what deception might have been alleged, let alone any evidence that deception took place. What is it that the claimant is supposed to have failed to mention when he arrived in 2010? Is it that he failed to tell the interviewing officer that his career prospects were bleak in Nigeria? He says he knew that when he arrived and of course it was his reason for coming here. He does not say that he did not mention it when he entered the country, but even if he did, that cannot be regarded as a material deception in the entry process. On the contrary, it would have been a good way to explain his plans.
- It is more likely that the deception alleged is this: that when he entered in 2010, he planned not to leave, and that he failed to say this to the interviewer. But that is not what the claimant said, in the 2012 interview as transcribed. In answer to the question "When you applied for your visa did you know you were not going to return to Nigeria" he said "No". If that is the deception alleged, the interviewer has inferred it from the fact of the asylum claim being made in 2012. But there is no material here to suggest that there was an intention, in 2010, to stay in the UK and claim asylum.
- The defendant produced, at the hearing before me on 3 October 2013, a form GCID; I was not told what that stands for but it is also headed "Case Record Sheet" and is dated 29 January 2012. It says:
"Subject was interviewed under caution and admitted that he could not have returned to Nigeria if he has been refused entry to the UK.
Subject admitted that it was his intention to come to the UK as he had no family life, wife or children in Nigeria and at his age he could not obtain a good career in Nigeria so came to the UK to study and build a new life.
Based on this information the subject has employed verbal deception at both the Entry clearance stage and the Immigration control stage."
- It is not clear why the writer of that memorandum says that "the claimant admitted he could not have returned to Nigeria if he has been refused entry to the UK", since that statement does not appear in the screening interview.
- Certainly on the basis of the interview, the decision to treat him as having entered by deception was not rational. The material in the interview does not provide a basis for a finding that he entered the UK by deception, let alone to a "high degree of probability", as the Enforcement Instructions and Guidance, quoted above, puts it.
- After the claimant was detained, he was given an opportunity to submit further written representations by the form labelled "One Stop Warning" under section 120 of the Nationality, Immigration and Asylum Act 2002, known as the IS 75; he did so on the form IS 76, "Statement of additional grounds", in which he gave an explanation of the need to stay on to complete his project and then apply for work, under the Post Study Work visa which was then available to graduates, but which has not been available since April 2012. He was then interviewed again on 3 February 2012, as part of the asylum process. He was now represented by solicitors. We have the transcript of the interview. The defendant in a decision letter of 31 May 2012 refers to both interviews as furnishing the material for the decision to treat him as an illegal entrant, and indeed Mr Jolliffe referred in his skeleton argument to the February asylum interview as well as the January screening one.
- It is a more thorough interview than that of 29 January, although both interviews seem to have been plagued with misunderstanding. He was given the opportunity to clarify what he said on 29 January; and he did so, picking up on the word "financial" and noting that the interviewer should have said "financially" and pointing out that what he said about his job prospects in Nigeria referred to his prospects without the Masters degree. And that is an important point of clarification. He said:
"Question 4.2 when she said did you know the career prospects in Nigeria were bleak before leaving Nigeria, the way it is stated it appears confusing. It gives the wrong impression. I think the question doesn't relate to my present but pr (sic) my past.
I think the answer to that question is yes, the question relates to leaving before Nigeria."
- The interviewer asked if his bleak career prospects were the only reason he did not want to return to Nigeria. He said no; he needed extra time to finish at the University of Greenwich. He was then asked if there was any other reason why he could not return, and he mentioned the Boko Haram crisis. He said that Christians were being attacked, and that he would need to restrict himself to relatively safe areas (answer to question 22). He said that he had only become aware of this in December 2011.
- At question 32 the interviewer said:
"
you withheld material information from the entry clearance officer when you made your visa application and from the immigration officer, on arrival in the UK regarding your intention of staying in the UK permanently. As a result of this deception of yours, your student visa was invalidated and you were served with an IS151A. Do you understand what I have just explained to you".
- The answer given is "Yes I do". The interviewer then asked "Do you want to make any comments about the fact that you were deemed as practising deception to gain leave to enter the UK and the subsequent invalidation of your student visa?" and the claimant in answer goes through the explanation of his need to extend his stay to finish his course and his inability to fund an extension application. He said that he was told at the UKBA office that since he could not afford to apply to extend his visa, he would need to leave the country and then re-apply to enter as a visitor. He asked about discretionary leave and was told that that was only available if he made an asylum application. So, he said,
"So what I had in mind was obviously I don't have any strong reasons to claim asylum. But my case will be considered first of all for refugee status then if not qualified given the reasons. Then I will be considered on grounds of humanitarian protection. Then if not under that I will be considered under grounds of any other reasons to stay".
- It is very clear from the claimant's answer that his asylum application was made as a result of his need to stay on, finish his course and graduate. The "Boko Haram crisis" is mentioned but not as the main reason for his application indeed, it is very clearly an afterthought and it is not claimed to be a strong reason. There is no material from which it could be concluded that he had a plan all along to claim asylum. So even if the material in the interview of 3 February 2012 is relied on to support the decision to treat him as an illegal entrant, it does not make that decision a rational one. I accept of course that the defendant's officers might well be suspicious of a student who claims asylum once he is here. But that does not mean that they are entitled to jump to the conclusion that there was a plan all along to claim asylum, which was concealed on entry particularly where, as here, it is clear that there is a very different and very recently arising reason for the claim. They might well jump to the conclusion that the claimant was making a hopeless application, but it does not follow from that that he practised deception on entry.
- Accordingly I take the view that the decision to treat the claimant as an illegal entrant was based on evidence that was not adequate indeed, far from adequate to justify the decision.
Procedural flaws in the decision of 29 January 2012
- It was also procedurally flawed, for two reasons. First, the interview itself was wholly inadequate. Not only (as discussed above) did it not provide a rational basis for a decision on that date that the claimant was an illegal entrant, but also it did not provide a fair procedure for the claimant. There is no more than a suggestion to the claimant on 29 January that there is anything he should have mentioned when he entered. Had it been put to him plainly: "when you entered, you intended never to leave and you should have said so" he would have been able to explain that that was not the case.
- The claimant has suggested that the interview was improper in addition because it was not held under caution. I accept on the basis of the GCID form quoted above that a caution was given. That does not change the fact that it was not conducted in a way that was fair to the claimant.
- The other reason why the decision was flawed is that it was not accompanied by a correctly completed IS151A. The form is headed "Notice to a Person Liable to Removal" and one of two boxes has to be ticked. Where box A is ticked, the addressee is told that he is a person in respect of whom removal directions may be given as an illegal entrant, whereas Box B is applicable to persons who, among other possibilities, "used deception in seeking (whether successfully or not) leave to remain". The form addressed to the claimant had Box B ticked; yet the defendant sought to remove him for using deception on entry, not in his application for leave to remain. True, the form goes on to state, in the box labelled "Specific statement of reasons":
"You are specifically considered a person who has breached section 10 of the Immigration act (sic) by obtaining leave to remain by deception as you failed to be open and candid in your entry clearance application and failed to be candid when encountered at Immigration Control when entering the UK". (emphasis added)
- The form, in other words, contradicts itself. This was a procedural and formal error, but was an important one to the claimant because it compounded the failure, in the screening interview, to make clear what he was being accused of.
- Accordingly the decision on 29 January 2012 to treat the claimant as an illegal entrant was irrational, and was procedurally flawed.
The decision to detain
- In view of what I have said about the decision to treat the claimant as an illegal entrant, I can deal with this point very shortly; it is accepted by the defendant and the claimant that the two go together. The decision to detain the claimant was irrational because the decision to treat him as an illegal entrant was irrational. The claimant seeks a declaration to that effect, and damages to be assessed if not agreed, and that is what I shall order.
- It is not in dispute that where the Secretary of State has detained someone lawfully because their removal is imminent, that detention may become unlawful if it becomes clear that removal is not going to happen quickly: R v Governor of Durham prison ex parte Hardial Singh [1984] 1 WLR 704. I am asked to decide whether, if the claimant's detention was initially lawful, it later became unlawful on the "Hardial Singh" principles; at the hearing before me Ms Wilding argued that the detention became unlawful on 22 February 2012 when an injunction was granted preventing the claimant's removal pending the resolution of his judicial review claim. In the circumstances I do not have to decide that because I have held that the initial detention was unlawful.
- However, for the sake of completeness, I note that the claimant was refused bail by an Immigration Judge in May 2012, but we do not have the judge's reasons. The defendant's record-keeping about the detention is not impressive; there is no record of a seven-day review. What we do have is a series of notices given to the claimant each month during his detention purporting to explain to him why his detention had to continue. The reasons given on the second page of each of those notices on 27 February, 26 March, 23 April and 21 May are all the same, namely:
"You have previously failed to comply with conditions of your stay, temporary admission or release.
You have not provided satisfactory evidence of your identity, nationality or lawful basis to remain in the UK.
You have previously failed or refused to leave the United Kingdom when required to do so.
You do not have enough close ties to make it likely that you will stay in one place.
Your asylum claim has been refused and certified as clearly unfounded, and your Judicial Review application is expected to be expedited."
- Some of these are not appropriate to the claimant, and Mr Jolliffe said at the hearing that the reasoning "was not expressed as aptly as it might have been". It may be that the penultimate reason was felt to be true. It may be that the final reason was true and that the defendant, through her officials, did expect the judicial review application to be expedited bearing in mind that orders were made on 24 April 2012 (by Underhill J) and on 11 May 2012 (by Kenneth Parker J) which gave directions for a permission hearing to be listed in the near future (in the latter case using the words "with expedition"). In fact the claimant was released the day after his application for permission to apply for judicial review was granted, on 15 June 2012; and I accept that it was really at that point that it became clear that he was not going to be removed in the near future.
- The point is finely-balanced because the reasons given for detention are of poor quality. We do not know what was said at the bail hearing. On balance, had it been necessary for me to decide the point, I would have refused to make a declaration that the detention became unlawful before the claimant's release.
The s.94 certification
The review sought
- We now move to a very different issue. The claimant on 29 January 2012 made an application for asylum. There was some discussion at the hearing before me as to what the claimant's asylum claim application actually consisted in, and it seems fair to regard it as being comprised in the two interviews of 29 January and 3 February, supplemented by a letter from the claimant's solicitors, Duncan Lewis, on 7 February 2012, concentrating on the Boko Haram situation and the dangers that the claimant faced in Nigeria.
- The claimant's application was refused, on 10 February 2012. The refusal letter treats the application as a claim for asylum and also treats him as having made a human rights claim, and it certifies both those claims as clearly unfounded pursuant to section 94 of the Nationality, Immigration and Asylum Act 2002.
- The claimant accepts that his asylum application had no chance of success indeed, he said as much as early as his asylum interview of 3 February 2012. His complaint is the certification, not of his asylum claim, but of his human rights claim under section 94. The effect of that certification is that he does not have an in-country right of appeal against the decision to refuse his application. And what troubles him particularly is that if that certification remains on his immigration record he will have difficulties if he wants to come to the UK in the future. He seeks a declaration that the decision to make that certification was irrational.
- In ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 it was said: "The test of whether a claim is 'clearly unfounded' is a black and white test" (Lord Philips of Worth Matravers at [22]). The question has been variously stated in other cases: is it bound to fail (R v SSHD ex p Thangarasa and Yogathas [2002] UKHL 36? Is it one that cannot on any legitimate view succeed (ZL and VL v SSHD [2003] 1 All ER 1062)?
- As to the court's approach to reviewing the Secretary of State's decision:
"If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that the court can consider whether her conclusion was rational other than by asking itself the same question that she has considered." (Lord Philips of Worth Matravers at [23])
- In R (on the application of Razgar) v SSHD [2004] UKHL 27 Lord Bingham explained:
"
on an application for judicial review of the Secretary of State's decision to certify, the court is exercising a supervisory jurisdiction, although one involving such careful scrutiny as is called for where an irrevocable step, potentially involving a breach of fundamental human rights, is in contemplation.
In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:
(i) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(iii) If so, is such interference in accordance with the law?
(iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
- Accordingly in reviewing the Secretary of State's decision in this case I must ask myself whether the tribunal, looking at an appeal from that decision on the basis of the facts known at that date, might possibly have allowed the appeal, and in order to assess that I should use the five-point test set out above.
The refusal letter
- The refusal letter of 10 February 2012 runs to 18 pages. It states at paragraph 11 that the claim was being considered on the assumption that all the material facts had been accepted in their entirety, without looking at the claimant's credibility. The letter goes into considerable detail about the Boko Haram situation, and concludes that there is no real risk of serious harm to the claimant in Nigeria.
- Paragraph 14 notes the claimant's educational situation and says "This desire to complete an educational course cannot be considered as a valid reason for claiming asylum, as you will come to no harm in Nigeria (and will be in no valid fear) if this is not completed." The letter then continues for several pages looking at sufficiency of protection available to the claimant in Nigeria.
- Finally, the letter goes through alternative reasons why the claimant might be entitled to any form of protection or leave in the United Kingdom. It rejects in turn the possibilities of refugee status under the 1951 Convention relating to the Status of Refugees; consideration of humanitarian protection; Articles 2 and 3 of the European Convention on Human Rights; and finally Article 8 and the possibility of discretionary leave.
- In exploring an Article 8 claim the letter refers, at paragraph 47, to the five-point test set out above from the Razgar case, and it goes through those five questions with unimpeachable care. In reviewing the decision I have to do the same, so as to assess whether the tribunal, hearing an appeal at that time, might possibly have reached a different conclusion on any of them.
(i) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
- The letter notes that the claimant has studied, worked and attended church and established a private life in the UK. It notes the presence of the claimant's adult brother, and the fact that he met a lady on New Year's Eve and was interested in marrying her, and concludes that he has not established a family life in the UK. I agree. There is nothing missing here that the Secretary of State should have mentioned or considered.
(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
- The letter states that the claimant can continue to enjoy his private life and social network using modern communications from Nigeria. Again, I agree entirely.
(iii) If so, is such interference in accordance with the law?
- The letter simply states that the claimant is removable by virtue of the IS151A; the tribunal looking at matters as they then stood could have reached no other conclusion.
(iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
- The letter states that it is vital to maintain effective immigration control to protect the wider interests of the community and the rights of the public. There is nothing that I could add to that.
(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?
- The letter states that interference with the claimant's private life would be "legitimate to the public end sought". Looking at this afresh, and at the weakness of the claimant's Article 8 claim, I cannot imagine that the tribunal would come to a different conclusion.
- Ms Wilding argued that the claimant's need to finish his course, sit his oral examination and graduate are elements of his private life and that his claim should have succeeded on that basis. In her skeleton argument she quoted CDS (PBS: "available": Article 8) Brazil [2010] UKUT 00305 (IAC), where Blake J presiding in the Upper Tribunal said:
"
people who have been admitted on a course of study at a recognised UK institution for higher education are likely to build up a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought, as well as social ties during the period of study. Cumulatively this may amount to private life that deserves respect because the person has been admitted for this purpose, the purpose remains unfilled, and discretionary factors such as misrepresentation or criminal conduct have not provided grounds for refusal of extension or curtailment of stay."
- But that decision is not authority for the proposition that the need to finish a degree course might in itself, without any other factors, ground a successful claim. It is, as Mr Jolliffe argued, a case where it was accepted that someone who is here studying may build up connections and develop a private life as indeed the Secretary of State accepted in this case.
- Ms Wilding argued further that the tribunal judge might have considered the claimant's financial situation and his inability to make the proper application for an extension of his student visa (which required a fee and a qualifying sum in the bank) or for discretionary leave using form FLR(O) (which also required a fee). The judge might well have concluded, she says, that it was reasonable for the claimant to be without funds near the end of his course, and therefore might have allowed his appeal so that he could be granted a short period of discretionary leave.
- I regard it as highly implausible to suppose that the tribunal judge would have subverted the rules in that way. The claimant's educational position was not enough by itself, nor in combination with the other elements of his private life, to justify his being allowed to stay. I do not think the tribunal could have reached any other conclusion.
- Accordingly I refuse the claimant's application for judicial review of the decision to certify his human rights claim under section 94 of the Nationality, Immigration and Asylum act 2002.
The Immigration (Notices) Regulations 2003
- I can deal briefly with the final issue. The claimant says that his student visa was cancelled, curtailed or invalidated it is not known which as a result of his application for asylum on 29 January 2012. He says that that was a decision to which section 82 of the Nationality, Immigration and Asylum Act 2002 relates, although since it is unclear what decision was made about the student visa it cannot be said which of the decisions listed in that section was made. But in any event it was an "immigration decision" pursuant to that section and therefore one to which the Immigration (Notices) Regulations 2003 applied. Either it was void because notice of the claimant's right to appeal the decision was not given to him as the regulations require, or it was valid but the right of appeal remains open because of the absence of that notice.
- The defendant does not dispute that a decision was made about the claimant's student visa; for example, in the interview of 3 February 2012, the interviewer asked, "Do you want to say anything about the UKBA's decision to invalidate your leave on 29/01/12?" (question 33).
- But there is no paperwork relating to that decision. It is possible that everyone assumed that a decision was made when in fact it was not. Mr Jolliffe argued at the hearing that I cannot properly decide this issue in the absence of other information and, on reflection, I agree. It may be that the claimant or the defendant ought to have sought directions at an earlier stage in the proceedings to address the need for evidence on this point; both parties were aware of the point from an early stage, and Underhill J in giving directions on 24 April 2012 for the hearing of the claimant's renewal application made reference to the point. As it is, the claimant has not shown that the decision was made without the notice required by the 2003 regulations, or even that it was made at all, and I refuse his application for judicial review on that point.
Conclusion
- Accordingly I make an order quashing the Secretary of State's decision on 29 January 2012 to treat the claimant as an illegal entrant; I make a declaration that the claimant's detention from 29 January 2012 to 15 June 2012 was unlawful, and I order the defendant to pay damages to the claimant, to be assessed if not agreed. But I refuse the claimant's applications for judicial review of the decision to certify his human rights claim under s.94 of the Nationality, Immigration and Asylum Act 2002, and of the decision if indeed one was ever made to invalidate, curtail or cancel his student visa.
