K, R (on the application of) v Entry Clearance Officer Tashkent

Neutral Citation Number: [2012] EWHC 2875 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/2651/2011 Royal Courts of Justice Strand London WC2A 2LL Thursday, 4 October 2012 B e f o r e: MR JUSTICE SINGH - - - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF K v ENTRY CLEARANCE OFFICER TASHKENT Claimant Defendant - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Ms S Jegarajah (instructed by Kings Solicitors) appeared on behalf of the Claimant Miss M Glass (instructed by T-Sol) appeared on behalf of the Defendant - - - - - - - - - - - - - - - Judgment MR JUSTICE SINGH: Introduction This is a claim for judicial review of a decision to refuse entry clearance to the two claimants. Permission was granted after an oral hearing on 13 September 2011 by John Bowers QC sitting as a deputy judge of the High Court. The second claimant is a very young child aged just two years and accordingly I directed at the beginning of this hearing, without any objection from the defendant, that any report of this hearing and this judgment should identify the two claimants by initial only. This is in view of the very young age of the second claimant whose mother is the first claimant. It is essentially the mother's application for entry clearance, to which the application of the second claimant is ancillary. The particular decision which it is sought to challenge by way of judicial review is said in the claim form to be a refusal of entry clearance dated 22 December 2010. I will turn to that decision in due course. The first claimant is a national of Uzbekistan. She initially came to the United Kingdom pursuant to an entry clearance (or visa) granted on 24 November 2008 for a period of six months. She had indicated that she wished to visit the United Kingdom for a couple of weeks but in fact, having arrived some time later than originally anticipated, she left the United Kingdom on 19 May 2009. It should be observed that was still within the period of six months leave which had been granted. She then applied in July 2009 for a visa to enter the United Kingdom as a Tier 4 (General) student. This was refused by the entry clearance officer on 28 August 2009 because of an inadequate visa letter. In May 2010, the first claimant applied for a visa as a visitor to the United Kingdom. This was refused on 4 June 2010. The reasons were stated so far as material as follows: "Your previous application made on 24.11.08 to visit friends for 14 days from 23 December to 5 January was successful. At that time you submitted a letter from the head of the postgraduate department of Tashkent Institute of Postgraduate Medical Education confirming that during your study period (10.8.07 to 31.8.09) you would be paid a salary by the institute on a monthly basis. In the event you stayed in the UK for almost six months, returning to Uzbekistan five days before the expiry of your UK visa. As a result of your new application and because you did not on your previous visit leave the UK at the end of the period of the visit as stated by you, your documents were checked. I am satisfied to a high degree of proof that a document in the form of a letter from Tashkent Institute of Postgraduate Medical Education containing false information was produced in your previous visa application. The reasons I have reached this conclusion are contained in a document verification report held on file. I am therefore satisfied that you fall to be refused under section 320(7B) of the immigration rules because you used deception in a previous application by submitting a document containing false information. I am therefore refusing you entry clearance under paragraph 320(7B) of the immigration rules. Any future applications will also be automatically refused for the same reason under paragraph 320(7B) of the immigration rules until 4.6.2020." Later in 2010, the first claimant applied for a visa as a student. This was refused in a decision which on its face is dated 7 December 2010 but was said to have been sent to the applicant on 22 December 2010. That is the decision to which I have already referred and is the only decision which is the subject of challenge in these proceedings for judicial review. So far as material, that decision stated: "Your previous application was refused because the entry clearance officer was satisfied to a high degree of proof that documents in the form of a letter from the head of the postgraduate department of Tashkent Institute of Postgraduate Medical Education and containing false information was produced in your visa application dated 25.11.2008. Your application was refused under paragraphs 320(7B) and 41 of HC395 [that being a reference to the immigration rules]. You were informed in your refusal notice that because you had made false representations in a previous application, any future visa applications that you made would be automatically refused for ten years from the date of that refusal notice. Despite this, you have again applied, this time as a student visitor. I have considered your letter of explanation but it does not satisfactorily address the fact that you made false representations by submission of a letter containing false information. I am therefore satisfied that you fall to be refused under section 320(7B) of the immigration rules because you used deception in a previous application. I am therefore refusing you entry clearance under paragraph 320(7B) of the immigration rules. Any future applications will also be automatically refused for the same reason under paragraph 320(7B) of the immigration rules until 4.6.2020." After a letter before claim met with a negative response, the claimants issued these judicial review proceedings on 22 March 2011. Shortly after that date, on 26 April 2011, two further decisions were issued by the defendant. It is not entirely clear why that should have been so and, as will become apparent later, those decisions, like the earlier decisions of 22 December 2010, were withdrawn. As I have said, on 13 September 2011 the claimants were granted permission to bring this claim for judicial review. SMITH BERNAL WORDWAVE It is clear from the transcript of those proceedings and the brief judgment given by the learned deputy High Court judge on that occasion that a number of matters troubled him. These included the fact that there appeared to be two separate document verifications or detailed verification check results, as he put it. As he went on to note in the transcript, although he appreciated that the sense of them was very similar, it was so far unexplained by evidence, as opposed to instructions, how that had come about. The claimants point out that in the normal course of events what would then have happened is that according to the Civil Procedure Rules in Part 54 the defendant would have been required to file detailed grounds resisting the claim for judicial review and any evidence that she proposed to rely upon within 35 days of the grant of permission. In fact that did not occur. The claimants also are entitled to point out that it is well established in this court that, once permission has been granted, a duty of cooperation is imposed upon a defendant public authority to assist the court in adjudicating upon the issues before it and in particular to explain its decision-making process in a candid way and not as if it were a commercial litigant who might well be entitled to keep its cards close to its chest. Nevertheless, in this case, as often happens, events took a different turn. This was because on reflection it became clear that the defendant did not wish to maintain her earlier refusals of entry clearance. In decision letters issued on 21 December 2011, the earlier decisions were withdrawn. It is only necessary to quote one of those relevant decisions so far as material. This pointed out that the decision made on 4 June 2010 was withdrawn following the receipt of the claimant's application for judicial review and was replaced with a new decision on 26 April 2011. The letter went on to explain that that second decision had also now been withdrawn and there was now being issued this third decision to replace it. It is not necessary for present purposes to rehearse the entirety of the text of that decision. It will suffice to observe that the decision no longer relied upon the allegation that the claimant had supplied a false document or used deception in her earlier application for a visa. Rather, this refusal of entry clearance in December 2011 relied upon a number of other factual features asserted to exist in support of the refusal of the entry clearance officer. It may well be, as has been vehemently suggested on behalf of the claimants at the hearing before me, that they would not accept the accuracy or the force of the points which are made in that decision letter and which are said to support the refusal of entry clearance. However, it is important to note that the claimants have not challenged those decisions of December 2011 which are, so far as the Secretary of State is concerned, the only extant decisions refusing entry clearance in this case. It is also important to observe that the claimants have not sought to amend their grounds, for example to include a new challenge to the extant decisions of December 2011. The next important point in the history of this case to note is that on 10 February 2012, the Treasury Solicitor wrote on behalf of the defendant to confirm that on 21 December 2011 its client had withdrawn its decision dated 26 April 2011 in its entirety. The letter continued: SMITH BERNAL WORDWAVE "For the avoidance of doubt, this means that my client has withdrawn its refusal of your client's application on the basis of paragraphs 320(7A) and 320(7B) of the immigration rules and the basis of its concerns regarding the letter from the Tashkent Institute." The letter continued to state: "As this was the issue in dispute in this case and the basis on which permission was granted at the hearing on 13 September 2011, this claim is now academic and should be withdrawn. My client will agree to pay your client's reasonable costs of the proceedings." The letter attached for consideration by the claimants' solicitors a proposed consent order. That consent order, which was in draft form, was brief in its terms and would have had the effect that the claimants would have leave to withdraw their claim for judicial review and the defendant would pay the claimants' reasonable costs. It did not, so far as can be discerned from the papers which have been placed before the court, attach any suggested statement of reasons for the proposed consent order. As is well known, in judicial review proceedings, even an order by consent that a decision should be quashed or something of that sort cannot be endorsed, as it were, automatically by the court. The court will usually expect to be informed by way of a reasoned statement agreed between the parties of what the reasons are, why in public law it is said that, for example, a decision of a public authority should be quashed by consent. However, it should be noted that in the present context, the Treasury Solicitor was not suggesting such a form of consent order. Rather the treasury solicitor was proposing simply that the claimants should have leave to withdraw their claim for judicial review against the background as set out in the recital to the consent order, that the claimant had agreed to withdraw an earlier decision to refuse entry clearance. In subsequent correspondence over the ensuing months it became clear that the claimants' representatives were not prepared to agree to any such consent order. They wished to persist in pursuing their claim for judicial review. However, it is also clear from that protracted correspondence that despite indications that the claimants intended to file amended grounds (see, for example, a letter from the claimant's solicitors dated 20 May 2011) no such amendment was ever in fact put forward. Nor has permission been sought or granted by this court for any such amendment though it is clear from the correspondence that the Treasury Solicitor was willing in principle to entertain the prospect that there would be such an application for amendment, for example, if the claimants wished to challenge the defendant's decisions of 21 December 2011 (see, for example, the letter from the Treasury Solicitor dated 13 March 2012). Because it would appear the claimant's representatives were not willing to accept that the defendant simply withdraw the earlier decision letters, including the decision under challenge in these proceedings, the correspondence continued at some length. In a letter dated 4 July 2012 the Treasury Solicitor wrote to the claimants' solicitors and so far as material stated: SMITH BERNAL WORDWAVE "In granting permission the deputy high court judge, Mr John Bowers QC, was 'troubled' with the defendant's finding that the claimant had been dishonest in submitting a letter from Tashkent Institute dated 17 November 2008 in support of her application. Following the hearing and taking into account the comments of the judge, the defendant decided to withdraw the decisions which had been made on the basis that the claimant had dishonestly submitted a letter containing false information in support of applications for entry clearance. As stated above, those decisions were withdrawn on 21 December 2011." The letter also contained a clear notice to the claimants' representatives in the following terms: "You indicate in your letter of 2 May 2012 that you intend to amend your grounds and if it is the case that the claimant seeks to challenge the defendant's decisions of 21 December 2011 then please make an application to file your amended grounds clearly setting out the basis on which you apply and the court can consider it. This application should be made within seven days of the date of this letter. However, it is clear that if you are to challenge the new decision letters then the proper basis upon which to proceed is to have this challenge withdrawn and issue new proceedings." Finally in the correspondence it is necessary to quote a short passage from a letter dated 17 August 2012 from the Treasury Solicitor addressed to the court manager of the Administrative Court: "... in correspondence the claimant has appeared to allege bad faith on the part of the defendant, however, this is not pleaded in the claimant's grounds, nor has she sought to amend. Significantly the claimant has not challenged the most recent decision of 21 December 2011 and is now well out of time to do so." The letter ended by informing the court office that in the interests of saving costs, the defendant has sought to settle these proceedings rather than file detailed grounds. Eventually, I am told in telephone communication between the parties' solicitors earlier this week, that is in early October 2012, it became apparent that in fact the claimants were not going to seek to amend their grounds. In that light and very late in the day on 2 October 2012, the defendant did file some brief detailed grounds. They say in essence what the defendant's skeleton argument before me has also said which is that the claimants' challenge has become academic and should not be entertained for that reason alone. The issue between the parties In the light of the procedural history which I have described, it has become clear that the issue between the parties is whether this claim for judicial review should be SMITH BERNAL WORDWAVE entertained at all at this substantive hearing. The defendant submits that the claim has become academic. The claimant resists that suggestion and submits that this is one of those exceptional cases in which the court should exercise its discretion to consider the claim in any event. Relevant principles As I understood it from the written submissions and the hearing before me, there was a great deal of common ground between the parties as to the relevant principles although not complete consensus. A helpful starting point is provided by the decision of Silber J in R(on the application of Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) particularly from paragraph 32 to paragraph 37. In that judgment, Silber J said that the starting point for considering whether a court should permit a party to pursue an academic point in a public law case is the classic statement of Lord Slynn of Hadley in R v Secretary of State for the Home Department Ex Parte Salem [1999] 1 AC 450 in a speech with which the other members of the appellate committee of the House of Lords agreed. In that passage Lord Slynn said: "I accept, as both counsel agree, that in cases where there is an issue involving a public authority as to questions of public law, your Lordships have a discretion to hear the appeal even if by the time the appeal reaches the house there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se (...) The discretion to hear disputes, even in the area of public law, must be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so as, for example (but only by way of example), where a discrete point of statutory construction which does not involve detailed consideration of the facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future." As Silber J went on to observe, similar principles have been applied in the Administrative Court, although what Lord Slynn had to say was directly concerned with the position at the stage of an appeal to the House of Lords. Silber J gave examples of earlier authorities in this court where similar principles had been applied and he sought to encapsulate the relevant principles in the following way, at paragraph 36: "In my view these statements showed clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem that 'a large number of similar cases exist or anticipated' or at least other similar cases exist or are anticipated and the second condition that the decision in the academic case will not be fact sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these SMITH BERNAL WORDWAVE two conditions, the consequence would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs." Silber J also observed at paragraph 13 in words which have particular relevance to the present case: "These points are particularly potent at the present time where the administrative court is completely overrun with immigration, asylum and other cases and where it would be contrary to the overriding objectives of the CPR for an academic case to be pursued, after all, one of those overriding objectives is 'dealing with a case justly [which] includes so far as practicable (E) allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases'. (CPR part 1.1)..." It will be relevant if at this juncture I quote from the last of the pieces of correspondence between the parties, a very recent letter dated 3 October 2012 from the claimant's solicitors, for in this letter they wished to advance the suggestion that the claim was not academic, not least on the ground that further decision letters were ultra vires and "do not exist in law". They also made it clear in that letter: "Whilst we may have been minded to file amended grounds previously, we do not wish to do so now because our view is that the new decisions have no legal force." I do not accept any such suggestion, if it is made, that the claimants are entitled simply to regard the extant decisions by the defendant dated 21 December 2011 as not existing and therefore having no legal force and not needing to be challenged by way of judicial review. The general position, as is well known, is that a public authority's decision must be challenged by way of judicial review. The court will then consider whether the challenge is made out and if so, whether in its discretion it should set aside the decision concerned. The general position is that unless and until the court exercises its power by way of judicial review to quash a decision by a public authority, that decision continues to exist. As I have already made clear, there is no such challenge in the present case, either by way of amendment or by way of a fresh claim for judicial review as in my judgment there should have been if the claimants wished to pursue the argument that those decisions have no force in law. As will already be apparent from the earlier recitation of the chronology, the only decision under challenge is the decision of 22 December 2010, a decision which the defendant has expressly withdrawn. The defendant has also withdrawn reliance upon the grounds which were said to found that decision. Those grounds related to the alleged deception by the claimant and the production of a false letter. Nevertheless, against that background and in the light of the principles which as I understood it were common ground in the authorities which I have cited, the claimants nevertheless wish to pursue the claim which is before the court at the substantive hearing. In particular, on behalf of the claimants it was submitted that in the circumstances of this case, what the defendant was trying to do was to engage in what was described as "an abuse of SMITH BERNAL WORDWAVE process". Two authorities in particular were cited in support of that contention, first the judgment of Moore-Bick LJ in Land Securities PL v Fladgate Fielder [2009] EWCA Civ 1402 at paragraph 77: "Although the concept of abuse of process is well known to the law, both in civil and criminal proceedings, it has rarely been treated as giving rise to a cause of action. More commonly it is relied on as a ground for terminating proceedings that constitute an abuse and as such is a flexible concept for preventing injustice. The circumstances in which the court will regard conduct as amounting to an abuse of process are not narrowly defined, nor should they be. Although certain types of abuse are well recognised, it is necessary for the courts to have the power to control their own proceedings and to prevent abuse, whatever guise it may take." The other authority which was cited on behalf of the claimants is a decision of Burnett J, Modi v United Kingdom Border Agency [2010] EWHC 1996(QB). At paragraph 66 of that judgment Burnett J quoted at length from the well known speech by Lord Bingham of Cornhill in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at page 30H to page 31F. It is not necessary for present purposes to cite the whole of the quoted passage, nor is it necessary to cite in full the very helpful distillation of the propositions which can be derived from Johnson set out by Burnett J at paragraph 57 of his judgment. It will suffice for present purposes to quote just one passage from the speech of Lord Bingham in Johnson: "The underlying public interest is the same; that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public matter is reinforced by the current emphasis on efficiency and economy in the conduct of litigation in the interest of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may without more amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all." The claimants' contention appears to be that in the present context the defendant is seeking to abuse the court's process by allegedly manipulating events in such a way that she can avoid the court's scrutiny of the decision under challenge in these proceedings by withdrawing earlier decisions and reaching new ones. In that way, it is submitted, the defendant would be able to avoid proper judicial scrutiny, as the public interest requires, of the decision-making process in that vein. At one juncture the claimants' submission was that appropriate directions should be given to allow an amendment to be made to the claim or otherwise to allow the court to engage in scrutiny of the decision-making process in this case. In particular it was suggested that directions might be given to order the defendant to produce evidence explaining the suggested discrepancy between the documents to which the learned deputy High Court judge made reference in the passage I have already mentioned. SMITH BERNAL WORDWAVE In my judgment, the claimants' reliance upon authorities concerned with the concept of abuse of process is misplaced. The passages which the claimants rely upon are concerned, rightly and understandably, with the situation where even where technically doctrines such as issue estoppel or cause of action estoppel or res judicata may not be applicable, nevertheless a party to litigation, in other words in court proceedings, is behaving in a way which the court regards as an abuse of its process. A party will not be permitted to behave in that way. In my judgment, there is no such abuse of the court's process by the defendant in the present case. The analogy in my judgment is misplaced. What in substance and on reflection the claimants really wish to argue is that the decisions of 21 December 2011, which are decisions in the executive field, in other words of administrative decision-making rather than in the field of litigation or the court's processes, are to be challenged because the grounds which are said to support those decisions do not bear scrutiny. It may well be that if the claimants had challenged the decisions in accordance with proper procedure and within the relevant time limits, they might well have been able to launch judicial review proceedings. It is unnecessary and inappropriate for me to comment further on the merits of any such challenge for it is not before this court but in principle at least, what the claimants might argue, if they were so advised, is that the decisions of 21 December 2011 were not an abuse of process but rather an abuse of power, in other words were amenable to judicial review on well known grounds of administrative law. It might have been argued, for example, that in the light of the earlier history of this case, the court should regard those decisions as being Wednesbury unreasonable but I stress again that no such argument has in fact been made in these proceedings or otherwise. I accept the submissions which were made on behalf of the defendant that there is no good reason for the court to exercise its discretion and treat this case as one of those exceptional ones referred to in the authorities which I have cited in which it would be appropriate for the Administrative Court to entertain a claim for judicial review which has by now become academic. As the defendant pointed out, the inquiry, if it were to be made in this case, would necessarily be a fact sensitive one. It would require the production of further evidence and no doubt a response by way of evidence from the defendant and her officials. As was also rightly pointed out by the defendant and was expressly conceded during the course of this hearing before me, bad faith has not been and is not alleged by the claimants. The defendant fairly accepted, at least for the sake of testing the argument, that in an extreme case, circumstances might arise in a hypothetical context in which, where bad faith is alleged in a decision-making process, the court might well be justified in entertaining a claim for judicial review, even where the resulting decision has by then been withdrawn by a public authority and a new decision has replaced it but, I stress, no such allegation of bad faith has in fact been made in this case. It is important to note that in the skeleton argument filed just before this hearing on behalf of the claimants, there were not only hints that such an allegation would be made, for example at paragraph 17, where it was said: "The defendant has withdrawn the decisions to avoid judicial censure and SMITH BERNAL WORDWAVE investigation. That is not right. A reasonable inference to be drawn is that bad faith has been employed during the decision-making process." It was, moreover, stated in the most explicit terms at the end of the skeleton argument that what the claimants would seek at this hearing was: "A declaration (...) that the BHC [British High Commission, I think that should be embassy] Tashkent have employed bad faith in the decision-making process." As I have said, no such allegation was in fact pursued at the hearing before me, rather it was expressly accepted that there was no such allegation. It is right that there should be no such allegation. It is important to emphasise again what the courts have often stressed in the past that an allegation of bad faith is an extremely serious one and should not be made lightly. I would remind all those concerned of the well known passage in the judgment of Megaw LJ in Cannock Chase Council v Kelly [1978] 1 WLR 1 at page 6 C-F. In particular in that passage Megaw LJ referred first to the well known judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and continued as follows: "As Lord Greene MR said at page 229: 'Bad faith, dishonesty, those, of course, stand by themselves.' I would stress, for it seems to me that an unfortunate tendency has developed of looseness of language in this respect, that bad faith or, as it is sometimes put, 'lack of good faith' means dishonesty, not necessarily for a financial motive but still dishonesty. It always involves a grave charge. It must not be treated as a synonym for an honest though mistaken taking into consideration of a factor which is in law irrelevant. If a charge of bad faith is made against a local authority [and I would add any other public authority, such as the Secretary of State] they are entitled, just as is an individual against whom such a charge is made, to have it properly particularised. If it has not been pleaded, it may not be asserted at the hearing. If it has been pleaded but not properly particularised the pleading may be struck out." Returning to the application of the principles which I have already mentioned which govern cases of this sort, I am quite satisfied in accordance with the submissions made by the defendant that this case is truly academic. There is no point of principle which would justify further consideration by the Administrative Court, and that any such consideration would be a fact sensitive one requiring further evidence and no doubt an adjournment of this case. Conclusion For all the reasons I have given, this claim for judicial review is dismissed. SMITH BERNAL WORDWAVE MR JUSTICE SINGH: Is there anything else? MISS GLASS: My Lord, there is the matter of costs. The Secretary of State has in correspondence raised the issue of wasted costs as against the claimants' representatives. MR JUSTICE SINGH: Well, would you accept that you should have to pay the claimants' costs up to the point when you were prepared to concede that, which is about February this year. MISS GLASS: My Lord, what I would raise with you is really two options: the Secretary of State pay those costs up to February of this year and that the claimant pay the Secretary of State's costs following the rejection of that consent order and pursuing the matter to a hearing. MR JUSTICE SINGH: Well, that may be complicated because I imagine they are on legal aid. MISS GLASS: I don't believe she is legally aided. MR JUSTICE SINGH: No? All right. MISS GLASS: Or the alternative, and this is really to avoid further costs on both sides, is that there be no order as to costs -- the alternative, and actually preferred by the Secretary of State, is that there be no order for costs whatsoever and that is based on the idea that up to February would be set off by the claimant paying the costs post February but in order to avoid that complication and further costs. MR JUSTICE SINGH: What do you say about that? MS JEGARAJAH: Yes, I agree. No order for costs. MR JUSTICE SINGH: No order as to costs. In the exercise of the court's discretion and in accordance with both parties' submissions I will make no order as to costs. Yes. Anything else? Thank you both very much for your assistance. SMITH BERNAL WORDWAVE