A recent decision of the Upper Tribunal (Immigration and Asylum Chamber) highlights the need for the Home Office to exercise its powers rationally and fairly when enforcing immigration law. In this post Robert Thomas analyses the decision and its importance.
By Robert Thomas
The recent decision of the Upper Tribunal (Immigration and Asylum Chamber) – written by its President, McCloskey J – in Mohibullah is an excellent and interesting one on various levels. The case is a classic example of judicial review providing judicial supervision of the exercise of administrative powers in general and in particular how the exercise of those powers affected tribunal appeals.
While immigration now supplies some 85 percent of all judicial review claims lodged, there have been comparatively few reported decisions. Of those decisions that have been reported, most either turn on their own individual facts or concern technical issues of statutory interpretation. However, this case is more of a classic judicial review variety castigating the Home Office on abuse of power grounds.
One general message from the decision concerns the Tribunal’s view on the importance of immigration appeal rights – at a time when they are being restricted – and their distinctive role when compared with judicial review. If a government department, such as the Home Office, has a multiplicity of decision-making mechanisms, some attracting a right of appeal and some not, then it is obliged by public law to consider the various options and to take account of relevant considerations when selecting a particular mechanism.
A second strand from the decision concerns the effectiveness of particular types of appeal process. In the immigration context, there are both in-country appeals and out-of-country appeals. The former have increasingly been withdrawn and restricted and the Home Office envisages that many appeals will in future be conducted out of country. However, the Home Office’s discretionary powers in this regard will be subject to challenge – especially in light of the Tribunal’s comments on the effectiveness and fairness of out-of-country appeals.
But, first we turn to the case itself. The case concerned the fraudulent language tests allegedly used by students to gain admission to the UK. Back in 2014, the BBC’s Panorama programme had claimed to uncover the widespread alleged use of fraud in the assessment of English language tests taken by some 30,000 overseas students. Following this, the Home Secretary at the time – now the Prime Minister – announced that there would be a crack-down on students abusing the system.
The Home Office then took various types of action against such students by refusing to extend or cancelling their leave. As regards the claimant’s College, the Tribunal found that the Home Office had in 2014 placed the college under intense pressure to expel him and over 200 other students. Such pressure from the Home Office included the implied threat that any failure by the college to take such action would result in the loss of the college’s sponsorship licence.
The Home Office disputed this and the Upper Tribunal – unusually in a judicial review case – heard oral evidence to make its own findings. Rejecting the Home Office’s evidence as being utterly implausible, the Tribunal found that the Home Office has engaged in duress against the college.
Different decision-making mechanisms
A fundamental part of the case concerned the selection and use of the Home Office’s statutory powers in such cases. The Home Office has a range of powers in such circumstances. Under the Immigration Rules, the Home Office can cancel a claimant’s leave in the UK on the grounds that false representations had been made. It can also, again under the Immigration Rules, cancel leave on the ground that deception was used. Importantly, neither of these decision-making powers attracts a right of appeal.
Alternatively, the Home Office can exercise its power under section 10 of the Immigration and Asylum Act 1999 to remove a claimant from the UK. At the time (i.e. before the removal of appeal rights with the coming into force of the Immigration Act 2014), the exercise of the section 10 power attracted a right of appeal exercisable from outside the country.
In Mohibullah’s case, the Home Office made a decision under the Immigration Rules, with the consequence that the claimant did not have a right of appeal. The claimant disputed the Home Office’s claim that he had acted with deception. However, his only available route of legal challenge was judicial review – which is not an appropriate vehicle for resolving factual issues. The existence of an effective remedy therefore turned upon the particular power which the Home Office had exercised. In turn, was the Home Office’s decision to use one decision-making mechanism rather than another subject to judicial review?
The Upper Tribunal’s answer was ‘yes’: ‘in principle, where multiple decision-making mechanisms are available to any public authority the decision to invoke one of these rather than any of the others entails the exercise of discretion and is susceptible to challenge on conventional public law grounds’ (para 50). The Home Office had not been aware that it had to exercise its discretion when choosing between different decision-making mechanisms. Furthermore, the Home Office had disregarded material considerations when exercising this power – namely that the section 10 power attracted a right of appeal whereas the other powers did not.
The Home Office had also failed to take account of its own published policy which stated that it was normally appropriate to consider section 10 action in circumstances such as the claimant’s. It is a basic principle of administrative law that administrative decision-makers should follow their own published policy except where there are good reasons for not doing so.
Another strand to the claimant’s challenge concerned the appropriate standard of review for the Tribunal to apply: was it precedent fact or traditional Wednesbury unreasonableness? The claimant had argued that the precedent fact of his deception had not been established. However, in Giri, the Court of Appeal had concluded that whether a student had engaged in deception was to be categorised as a question of fact requiring a finding by the decision maker. This finding was only subject to judicial review on Wednesbury principles.
However, the claimant further argued that the Tribunal should look at the Home Office’s decision – and the Home Office’s whole approach – through a prism of conspicuous unfairness, namely whether the Home Office had abused its power by acting unfairly. Doing so, the Tribunal concluded that the Home Office had acted with conspicuous unfairness amounting to an abuse of power. The Home Office’s use of its powers under the Immigration Rules had deprived the claimant of a right of appeal, leaving judicial review as the only route of challenge. However, judicial review is an inappropriate means of challenging such decisions because the issues are largely factual requiring the presentation and assessment of evidence. Judicial review almost always excludes such an exercise, whereas it is the meat and drink of tribunal appeals.
The Tribunal was clearly unimpressed by the behaviour and attitude of the Home Office:
‘the Secretary of State’s ability to invoke the mandatory and unappealable curtailment of leave decision making route was a direct result of the improper conduct, consisting in essence of duress and manipulation, which we have found; the Applicant was left in the dark as to the Secretary of State’s intentions at all material times; the college was the only source and conduit of information to him; no invitation to make representations about decision making routes was afforded to him; there was no communication with him during a critical period; and, ultimately, the Applicant was driven to pursuing a legal remedy which is markedly less suitable than an appeal on the merits. We conclude that these various factors combine to yield the conclusion that the Secretary of State’s decision was so unfair and unreasonable as to amount to an abuse of power’ (para 73).
Accordingly, the Home Office lost on the ground that its decision was Wednesbury unreasonable on account of being conspicuously unfair.
Thus, the case was a fairly orthodox application of established legal principle. There was some discussion in the case about the precise scope of the conspicuous unfairness principle. Such challenges inevitably turn on their own individual facts. Furthermore, the court must always guard against straying into the merits and substituting its own view. Nonetheless, there is scope for judicial intervention when administrators abuse their power. According to the Tribunal:
‘The emergence of the concept of conspicuous unfairness may be viewed as a natural development, or elaboration, of the Wednesbury principles. The concept was somewhat dormant during a period of approximately two decades. However, its re-emergence is probably attributable to the development of the doctrine of substantive legitimate expectations, duly driven by the organic power of the common law. A decision which results in a conspicuously unfair outcome for, or impact upon, the claimant has the potential to qualify for the condemnation of irrationality. The ultimate question is whether the decision under scrutiny is so unfair and/or unreasonable as to amount to an abuse of power. Stated succinctly, the exercise of governmental power with conspicuously unfair or unreasonable results violates the Wednesbury principle’ (para 69).
There is a risk here of circular reasoning that sometimes arises in judicial review cases: ‘What is an abuse of power? Its conspicuous unfairness? What is conspicuous fairness? Its Wednesbury unreasonableness. What’s that? It’s an abuse of power’ and so on.
Nonetheless, there is a real need for tribunals and courts to supervise the exercise of government power to ensure that it does not unfairly harm individuals especially when their interests are very much at stake. In judicial review proceedings, the courts are not applying rigid rules, but setting out standards for good administration. And on the fact the Home Office had manifestly failed to live up to these standards.
Out-of-country of appeals
Another reason to highlight this case concerns the Tribunal’s views on in-country appeals and those pursued out of country. The focus of the case had been whether the Home Office should have exercised its section 10 power. As noted above, this only generated an out-of-country appeal. However, the Tribunal went further by casting some doubt upon the utility of out-of-country appeals.
The Tribunal stated that ‘an in-country statutory appeal would be clearly superior’ to the hybrid model of judicial review it had adopted because it enables the full exploration and consideration of all the evidence and, in particular, the finding of whether the Applicant engaged in deception as alleged. The Tribunal repeated its views expressed in the earlier case of AM and Qadir:
‘We are conscious that some future appeals may be of the “out of country” species. It is our understanding that neither the First-tier Tribunal nor this tribunal has experience of an out of country appeal of this kind, whether through the medium of video link or Skype or otherwise. The question of whether mechanisms of this kind are satisfactory and, in particular, the legal question of whether they provide an appellant with a fair hearing will depend upon the particular context and circumstances of the individual case. This, predictably, is an issue which may require future judicial determination.’
Adding to these comments, the Tribunal stated:
‘Experience has demonstrated that in such cases detailed scrutiny of the demeanour and general presentation of parties and witnesses is a highly important factor. So too is close quarters assessment of how the proceedings are being conducted – for example, unscheduled requests for the production of further documents, the response thereto, the conduct of all present in the courtroom, the taking of further instructions in the heat of battle and related matters. These examples could be multiplied. I have found the mechanism of evidence by video link to be quite unsatisfactory in other contexts, both civil and criminal. It is not clear whether the aforementioned essential judicial exercises could be conducted satisfactorily in an out of country appeal. Furthermore, there would be a loss of judicial control and supervision of events in the distant, remote location, with associated potential for misuse of the judicial process. The conventional video link bail hearing, at which the subject is virtually present but making little or no active contribution, is to be contrasted.’
Given that the Immigration Act 2016 has introduced provisions to expand considerably the use of out-of-country appeals in human rights cases, these comments are particularly important. Looking forward, it can be envisaged that the Home Office’s decision to certify future human rights claims so that they can only be pursued out of country will be challengeable on the ground that this would render the appeal process both ineffectual and unfair.
Another couple of interesting points come out of the case. Those with an interest in the impact of courts and tribunals on government will be interested in the snippet that a senior Home Office official directly involved in dealing with the licensing of colleges had no knowledge of an important decision of the Upper Tribunal concerning the licensing of such colleges and English language testing:
‘Mr Turner affirmed that he had no knowledge of the decision of this Tribunal in Gazi. When asked about the decision in SM and Qadir, his response was that he had heard of it but had never read it. These aspects of his evidence were symptomatic of the consistent lack of depth and conviction which characterised his testimony throughout’ (para 28).
Second, the Upper Tribunal gave some indication of what it called ‘the hybrid model of judicial review’. The Upper Tribunal had in the course of the case heard oral evidence from both representatives of the college concerned and the Home Office. The distinctive and innovate feature of this hybrid model is that it combines both a degree of fact-finding as well as classic judicial review of legality. It is likely that we will see greater use of this hybrid model of judicial review in the future.
About the author:
Robert Thomas is Professor of Public Law, University of Manchester.
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