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Cite as: [2014] EWHC 2599 (Admin)

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Neutral Citation Number: [2014] EWHC 2599 (Admin)
Case No: CO/7538/2013

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

The Court House
Oxford Row
Leeds LS1 3BG
29th July 2014

B e f o r e :

His Honour Judge Clive Heaton QC
Sitting as a Judge of the High Court in Leeds

____________________

Between:
R (on the application of AKO KAMAL ALI)
Claimant
- and -

SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Defendant

____________________

Mr Ficklin (instructed by Howells) for the Claimant
Mr Weiss (instructed by Treasury Solicitor) for the Defendant
Hearing date: 11th July 2014

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Judge Heaton QC:

  1. This is a "rolled up" hearing for permission with the substantive hearing to follow in an application for Judicial Review.
  2. The Claimant is said to be Ako Kamal Ali. He is said to be a national of Iraq. He claimed asylum here in the UK on his case as long ago as 5th November 2002. Having been granted ELR for many years his application for ILR was left undetermined by the SSHD and in consequence the Claimant brought these Judicial Review proceedings.
  3. That application for ILR has now been considered by the SSHD. For reasons I shall come to she has treated the application not as an application for ILR but as further submissions on a claim for asylum, and has refused that application.
  4. The Claimant now also applies to this court on amended grounds for Review of that decision.
  5. The salient background

  6. This is a case which it is said involves multiple applications for asylum in false identities. It is said by SSHD that a man Abbas Ahmadi arrived in the UK on the 27th June 2001. He claimed asylum the following day. On the 1st August 2001 that claim was refused. On the 17th July 2002 the appeal against that decision was dismissed, and on the 5th August 2002 Abbas Ahmadi became appeal rights exhausted. On the 30th August 2002 Abbas Ahmadi made further representations but these did not lead to a change of outcome.
  7. SSHD says that Abbas Ahmadi and the claimant here are one and the same person. The claimant denies that.
  8. On the 28th June 2001, so a day after Mr Ahmadi was seeking to enter the country, a man giving the name Abas Cada Ahmed arrived at Dover. He was refused entry. The SSHD says, based upon fingerprint matching, that Abas Cada Ahmed is also the Claimant. The claimant denies that too.
  9. On the 5th November 2002 the Claimant says that he entered the UK. It is common ground that he did present himself to the authorities that day at Felixstowe and claim asylum. He said at the time that he had never claimed asylum before. If the SSHD is correct then that would of course have been a double deception.
  10. On the 24th December 2002 The Claimant's application for asylum was refused. However he was granted ELR for 4 years (so until 23rd December 2006) because of the particular circumstances of the case. There was no appeal in respect of the refusal of asylum.
  11. On the 13th November 2006, so in time, the Claimant applied for ILR. The application was acknowledged one week later by SSHD. In that acknowledgement the SSHD notified the Claimant that such claims were the subject of delay and were taking on average 8 months to determine.
  12. By a letter of the 11th March 2010, so over three years later, the Claimant's MP was told that the Legacy backlog of cases, of which this was now part, would be concluded by July 2011.
  13. On the 11th June 2010, so three years and 7 months later, SSHD confirmed to the Claimant that his application was part of the "Legacy" backlog of cases and requested further information. The letter also notifies the Claimant that SSHD believes that the Claimant is a dual applicant using false indentities.
  14. On the 20th February 2012 the Claimant caused a pre-action letter to be sent to the SSHD his claim still not having been determined, now 5 years and three months after it was made.
  15. On the 10th March 2012 the SSHD's Case Assurance and Audit Unit confirmed that the Claimant's case had been transferred to it.
  16. On the 16th March 2012 the Claimant confirmed his details and denied that he had also made a claim in the name of Abbas Ahmadi. He asked what evidence SSHD had to support that allegation. On the 18th April 2012 SSHD asked the Claimant to provide photographs and identity documents.
  17. On the 20th April 2012 the Claimant caused a second pre-action letter to be sent.
  18. On the 2nd May 2012 the Claimant sent passport photographs to the SSHD as requested and denied that he had made an asylum claim in any other name.
  19. By a letter of the 4th December 2012, so more than six years after the claim had been made, the SSHD informed the Claimant that it was not possible to say when his application would be dealt with.
  20. On the 14th January 2013, so six years and two months after his application was made, the Claimant caused a third pre action letter to be sent to SSHD. The SSHD responded to that letter indicating that she intended to make a decision on the application and as to the Claimant's identity within 3 months.
  21. The forensic history

  22. On the 18th June 2013: so six years and 7 months after his application was made; after 3 letters before action; and the application still awaiting determination by SSHD, the Claimant filed his claim with this court.
  23. The SSHD filed an Acknowledgment of Service dated the 11th September 2013 indicating that the SSHD accepted that she needed to provide a decision in the application and inviting the Claimant to withdraw his claim
  24. On the 31st October 2013 HHJ Jeremy Richardson QC granted limited permission on the papers on the basis of delay. He said in his order that the SSHD needed to make a decision on the application, and that if such a decision was made the claim would become academic and would not be allowed to proceed.
  25. On the 26th November 2014 the SSHD issued a decision on the Claimants application. The Claimant had applied for ILR following a period of 4 years ELR. The SSHD had decided in this letter, however, to treat the Claimant's application as a claim for asylum or Humanitarian protection.
  26. The decision to treat the application in that way is not directly explained in the letter, but Mr Weiss submits that the reasons can be deduced from an analysis of its contents. To this point the SSHD had always engaged with the Claimant as Ako Kamal Ali. This letter however is addressed to "Abass Ahmadi aka Ako Kamal Ali and Abas Cada Ahmed". At page 8 of the version of the letter I have in the Court bundle the SSHD says this:
  27. "In your previous identity of Abbas Ahmadi you became appeal rights exhausted on 5.8.02. At this stage you should have left the UK as your asylum claim was at an end. You failed to do this and in order to prolong and normalise your stay in the [UK] you made a second asylum claim under the assumed identity of Ako Kamal Ali. Although you have repeatedly denied using a different identity your fingerprints were matched"
  28. It will be recalled that the fingerprint matching was between the Claimant and Abas Cada Ahmed not Mr Ahmadi. The letter fails to engage with the implications of a grant of ELR to Ako Kamal Ali.
  29. The decision of the SSHD on the application, as she had determined to interpret it, was that the Claimant did not qualify for asylum or humanitarian protection. It was also determined that the Claimant did not qualify for limited leave to enter or remain in the UK. The Claimant was told that in consequence he had no basis to say in the UK and that he should make arrangements to leave.
  30. On the 5th February 2014 the Court of its own motion made an order requiring the Claimant to say in 14 days whether he intended to proceed with the claim. He was invited if so to amend his grounds of claim.
  31. On the 4th March 2014 the Claimant produced amended grounds of claim. The core elements of the amended grounds are:
  32. (i) That the Claimant had not been served with a valid decision notice
    (ii) That the application had not been determined in accordance with law and practice
    (iii) Delay
  33. On the 8th April 2014 SSHD filed amended grounds of defence in response.
  34. By an order of HHJ Belcher of the 24th April 2014 after an oral hearing the Court ordered:
  35. (i) SSHD to file and serve any evidence linking the three identities the SSHD alleges the Clamant has used
    (ii) SSHD to file and serve re amended grounds of defence
    (iii) The Claimant to file and serve reply to the defence amended statement of facts and grounds
    (iv) The SSHD to pay the costs of that hearing
  36. On the 12th May 2014 the parties provided a consent order in writing amending the timetable set by HHJ Belcher as the SSHD could not meet it. On the 14th May 2014 the SSHD did provide Re-amended grounds of defence and a witness statement of Colin Wells dated the 1st May 2014. The Claimant has provided a Reply to the Re-amended grounds of defence dated the 28th May 2014.
  37. The argument

    The pleaded cases in respect of Ground 1

  38. In respect of ground 1 the Claimant puts his case in the following way:
  39. (i) The application for ILR was submitted on 13th November 2006 at a time when the Claimant had leave to remain in the UK
    (ii) Therefore the application was an application to vary extant leave to remain engaging the provisions of s3(C) Immigration Act 1971 (IA)
    (iii) It follows from that, it is argued, that the refusal of such an application with the consequence that the Claimant would have no further leave to remain would be an immigration decision giving rise to a right of appeal under s82 of the Nationality Immigration and Asylum Act 2002 (NIAA)
    (iv) Failure to provide a full notice of the immigration decision setting out the Claimant's right of appeal, including grounds on which any appeal could be brought, is a substantial omission going to the heart of the reasons for requiring formal decision notices (Huang)
    (v) The omission of the prescribed information renders the notice invalid Regulation 3 Immigration (Notices) Regulations 2003 (the 2003 regulations)
    (vi) Therefore in accordance with regulation 2(a) of the Immigration (Continuation of Leave)(Notices) Regulations 2006 (the 2006 regulations) the Claimants application for ILR remains outstanding
  40. The SSHD responds as follows:
  41. (i) The Claimants' application of November 2006 was quite clear on its face, it was an application for ILR in the UK after the completion of 4 years ELR not an application for variation of leave to remain. It is not therefore an application for variation and so not an "immigration decision" for NIAA purposes.
    (ii) The decision of the 26th November 2013 was following consideration of further submissions under IR paragraph 353
    (iii) Such a decision is not an "immigration decision" as defined (s82(2) NIAA) and so the consequences which flow from the making of such a decision do not apply here
    (iv) The SSHD could in any event it is argued have treated the application as void and dismissed it as the Claimant had made multiple applications under aliases
  42. The Claimant suggested in the pleadings in response to that approach that the SSHD defence would amount to a "sea change" in the way applications to move from ELR to ILR are treated. It is asserted by the Claimant that it has never been the case in practice that applications to move from ELR to ILR do not amount to applications to vary, and there is no authority to support the SSHD approach here.
  43. The Claimant responds to the assertion that SSHD could have cancelled his status on the basis of misrepresentation, or could have treated the application as void and dismissed it, with the argument that had she done so that decision would also have been an "immigration decision" and would again have given rise to a right of appeal (s82(2)(d) & (e) NIAA). Any alleged deception, it is argued, is a matter for the I&A Chamber as part of an appeal it is said.
  44. The Claimants' oral submissions on ground 1

  45. Mr Ficklin began by acknowledging that SSHD had a "good faith" (as he put it) belief that there had been multiple applications by the Claimant. However, his contention was that if it was SSHD case that there had been deception then that was a matter upon which the Claimant had a right to an appeal. It was for a Judge to determine whether or not, on the facts as they were found to be, there had been deception in the course of such an appeal. It was not open the SSHD he argued to approach the matter as the SSHD had done and deprive the Claimant of that appeal.
  46. Mr Ahmadi, Mr Ficklin conceded was a failed asylum seeker who did not have any rights. If the SSHD took the view that the Claimant was Mr Ahmadi she could simply have curtailed his leave some time ago, but she had not done so. Rather, the Claimant had been treated throughout by the SSHD as though he had a right to be present in the UK. He had been given ELR and had then continued to live in the UK pursuant to s3C IA.
  47. Then in November 2013 the SSHD had decided to treat the Claimant as Mr Ahmadi.
  48. Mr Ficklin contended as he had argued in writing that it was usual practice for an application for ILR by an applicant with ELR to be treated as an application for a variation. When treated in this way any refusal would be an "immigration decision" and carry with it a right of appeal by s82(2)(d) NIAA.
  49. Furthermore he said the allegation that there had been a deception discovered after the grant of ELR was anticipated by the statutory scheme. Where a subsequent refusal was based upon deception discovered after the grant of ELR again there was a right of appeal by s82(2).
  50. To illustrate that argument Mr Ficklin took the Court to Asylum Policy Notice 01/2007. Here at paragraph 3 the policy document states that following a grant of four years "ELE/R" applicants should not be granted ILR in a set of specified circumstances. One of those circumstances is where, following the grant of leave it comes to light that the grant was obtained by deception at the time of the original grant.
  51. In addressing the issue of appeals that Policy Notice refer the reader to Chapter 12 section 1 of the Immigration Directorates Instructions. That document indicates that a right of appeal is triggered by the refusal to vary existing leave to enter or remain if following the decision the applicant has no leave. Two criteria have to be met here: the application must be made while the applicant has leave (as here); and by the time of the decision is notified to refuse further leave his leave has expired, (again as here). And so Mr Ficklin says the Claimant has satisfied the relevant conditions.
  52. Counsel also drew my attention to paragraph 3.4 of that Policy document. Here the policy deals with conduct non conducive to the public good. That paragraph refers to section 6 of the API on Article 1F and Article 33(2) of the Refugee Convention. Mr Ficklin made the point that he was not arguing that the Claimant was a refugee, but that this is the route to the relevant guidance contained in the Policy Document.
  53. Of course section 6 of the API on its face does not appear to be relevant here and so if Mr Ficklin is right it requires some reading down. Section 6 of this API leads the reader to annex A of the document. Annex A provides that where a misrepresentation or omission of facts .were decisive for the grant of asylum the action to be pursued is cancellation of leave. Turning to annex B Mr Ficklin says that says there would again be a right of appeal.
  54. Mr Ficklin says that given that paragraph 3.4 of the Asylum Policy Notice 01/2007 refers to this guidance for dealing with conduct non conducive to the public good that is further confirmation that the Claimant here should a right of appeal if the allegation is deception.
  55. The Defendants oral submissions on ground 1
  56. Mr Weiss was placed in the difficult position of arguing another Counsel's skeleton. His starting point was that the SSHD was entitled to treat the Claimant's application for ILR as submissions on an asylum claim and thus the relevant law for the determination of the Claimants application was Immigration Rule 353 which the SSHD had lawfully and properly applied here.
  57. Mr Weiss argued that the SSHD was entitled to come to the view that the Claimant was really Mr Ahmadi by reason of the information contained in the statement of Mr Wells, I turn therefore to that evidence. In short Mr Wells says that Mr Ahmed and Mr Abbas were both dealt with by the SSHD under the same reference. As to why the SSHD had come to the conclusion that they were the same person Mr Wells, relying as he puts it on his experience, but not it appears with the benefit of any confirmatory document, believed that Mr Ahmed must have referred to himself as Mr Abbas in his interview.
  58. The final stage in this sequential process is of course that the fingerprints of Mr Ahmed taken at the time he attempted entry to the UK are said to match those of the Claimant.
  59. None of that is admitted by the Claimant. However, Mr Weiss case is that SSHD was perfectly entitled on the material she had to form the view that the Claimant was Mr Ahmadi (rather than the man he says he is or Mr Ahmed) and deal with him on that basis. In dealing with him in that way she had not fallen into any error of law and so the decision should stand.
  60. Mr Weiss secondary argument is that even if the SSHD was wrong about that the SSHD would have been entitled to treat the application for ILR as a free standing application and not a variation of the Claimant's ELR in any event. In these circumstances there would be no right of appeal as no "immigration decision" in NIAA terms would have been made. In an interaction with Counsel I asked Mr Weiss if by taking this approach the outcome would be that no applicant for ILR who already held ELR would have an appeal if refused ILR. Mr Weiss said that they would not. I asked whether that would be an odd situation and Mr Weiss confirmed that, regardless, this was the SSHD position in this case.
  61. Descending briefly into the detail Mr Weiss argued that section 6 of the API clearly did not apply here as ELR did not appear in any of the categories set out in annex B.
  62. I asked Mr Weiss if he had any material to put before me to sustain the SSHD argument that she was entitled to treat the Claimant's application for ILR as she had. Mr Weiss said that he was not in a position to put any material before me. I offered Mr Weiss a short adjournment to see if he could obtain such information. Having spoken to his solicitor Mr Weiss was not able to put such information before the court, and told me that he had no instructions to ask for a further adjournment to obtain it.
  63. The balance of the grounds

  64. Both advocates before me agreed that this case turns on Ground 1 and that the subsequent grounds did not require argument. I find myself in agreement with that position and therefore, as the grounds are there to be read, I will not engage with grounds 2 or 3 here.
  65. Discussion

  66. There is much to worry about in relation to this Claimant's immigation history. It clearly requires careful examination with the benefit of relevant evidence. That is not, however, this court's function. I must deal with the decision made by the SSHD on the 26th November 2013 and rule whether or not she fell into public law error in the way she approached the Claimant's application for, on its face, ILR.
  67. I deal firstly with the SSHD secondary argument in these proceedings that she would have been entitled to treat the Claimant's application for ILR as a free standing application rather than a variation of his ELR.
  68. The SSHD has been given ample opportunity to produce material to rebut Mr Ficklin's bold assertion that these applications simply are not dealt with as free standing applications which do not carry a right of appeal on refusal as the SSHD here suggests. However, the SSHD has failed to provide such any material either in writing before the hearing (accepting that these were not Mr Weiss pleadings) or in argument during it, notwithstanding this court giving Mr Weiss an opportunity to take further instructions from his solicitors. Counsel has been left in the uncomfortable position of having to assert that this is the position without the material to underpin that assertion.
  69. I reject the SSHD's argument that she could have dealt with the claim as a free standing claim in respect of which there would have been no appeal on refusal on the basis that she has put no material before me to substantiate her argument.
  70. I am reinforced in my rejection of that argument by where Mr Weiss says it leads. In my judgment it would be a highly surprising outcome if a person with ELR applying otherwise properly for ILR were not to have a right of appeal if refused leaving them with no other right to remain given the range of decisions falling within the definition of "immigration decision" in s82(2) NIAA.
  71. I turn therefore to the Claimant's primary argument, that the SSHD was not entitled to
  72. (i) Treat the Claimant as Mr Ahmadi,
    (ii) Treat his application for ILR as submission on an asylum claim,
    (iii) Then refuse his application.
  73. In her decision letter of November 2013 the SSHD decided that there had been deception by the Claimant, and that the deception (whether he had made previous applications for asylum and most fundamentally whether he was who he said he was) had been in respect of a decisive element of his application for ELR. In my judgment Mr Ficklin is right that the statutory scheme envisages exactly such a situation, and provides that in refusing ILR for such reasons the SSHD is making an "immigration decision" in respect of which a right of appeal arises. That would leave the First Tier Judge, if there was an appeal, to determine on the facts having received evidence whether there had been material deception.
  74. Of course that is not necessarily the end of the story. I must have at the forefront of my mind that there may be circumstances in which SSHD may be able to lawfully step outside that statutory framework. However the SSHD has failed either in the decision letter or in the course to this claim (notwithstanding my giving her ample opportunity to do so) to even point to any statutory route, authority, policy or practice which would entitle her to take such an approach as she did here.
  75. Thus I find myself in agreement with the Claimant that the proper route here was for SSHD to engage with and determine the Claimant's application for ILR, refusing it if she saw fit on the grounds of deception.
  76. Accordingly, in my judgment the SSHD was not entitled to deal with the Claimant as she did and so he succeeds on ground 1.
  77. Orders

  78. I thus make the following orders
  79. (i) A declaration that the purported decision letter of the SSHD of 26th November 2013 fails to engage with the Claimants application for ILR and is null and void
    (ii) A declaration that in consequence of the failure at (i) above the Claimant's application of 13th November 2006 remains pending
    (iii) A declaration that given that the Claimant's application is still pending he has continuing leave to remain pursuant to s3C IA
    (iv) That SSHD should determine the Claimant's application for ILR of 13th November 2006 forthwith
    (v) That the SSHD should pay the Claimant's reasonable costs to be assessed if not agreed.

    Arrangements as to the assessment of costs

  80. It was agreed before me that if I made an order for costs either way I should provide that the costs of the successful party should be assessed if not agreed. In respect of any assessment both sides have permission to put their representations as to costs to the costs judge in writing. Any assessment, it was again agreed, shall take place on paper to avoid the expenditure of yet further costs on attendance before the costs judge.
  81. His Honour Judge Clive Heaton QC


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