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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thapa, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 659 (Admin) (11 March 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/659.html Cite as: [2014] EWHC 659 (Admin), [2014] WLR(D) 133, [2014] 1 WLR 4138, [2014] WLR 4138

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 March 2014

Helen Mountfield QC :

The issues

1. The Claimant in this case is a young Nepalese man who came to this country in 1999 but is now faced with administrative removal on the basis of directions made under section 10(1)(a) Immigration & Asylum Act 1999 (IAA 1999).
2. This is an application for judicial review of the decision taken on 28 January 2013 by an immigration officer on behalf of the Defendant to make those directions, in exercise of her discretion under section 10(1)(a) IAA 1999, and also a decision to remove the Claimant from the jurisdiction and to return him to Nepal. The claim as advanced before me now proceeds on two grounds. (I am told that there is an outstanding application for permission from the Court of Appeal in relation to another ground on which permission was refused, but I say no more about that). As Mr Justice Walker observed in his order of 31 October 2010, the amended grounds raise points of considerable importance which extend beyond the facts of the present case. On the day of the hearing, I indicated that I would allow the application for judicial review, but reserved my reasons.
3. A preliminary issue was raised by the Defendant as to whether this was an apt case for me to exercise my discretion to consider the issues in an application for judicial review. It was said that there is an apt and obviously more suitable alternative remedy in an out-of-country appeal to the First Tier Tribunal (FTT).
4. The Claimant submitted that the issues in this case were apt for resolution in an application for judicial review, because they go not to the factual or legal merits of the decision taken under section 10(1)(a) IAA 1999 (as to which he accepts that an out of country appeal to the FTT is the apt remedy, other than in a sufficiently exceptional case), but to a prior stage of the decision-making process, namely, whether to make a decision under section 10 at all.
5. The Claimant in this case accepts that the decision-maker formed a view that he was working in breach of a visa condition (though he denies it and says that the officer was mistaken). His legal challenge is to decision-maker's assumption that a perceived breach led automatically to the making a direction for removal under section 10(1)(a) IAA 1999, thereby triggering only an out-of-country appeal; alternatively unfairness of the process through which that decision was taken.
6. It is common ground that as a matter of law, an immigration officer has a discretion as to the use or otherwise of s10 IAA 1999. The practical importance of this discretion is that if she or he exercises it so as to make directions for removal, the only right of appeal enjoyed by a person such as the Claimant is an out of country appeal to the FTT. That is the consequence of s82(2)(g) Nationality Immigration & Asylum Act 2002 (NIAA 2002), to which I shall return. Apart from the obvious procedural and costs difficulties which this causes (in terms of marshaling factual evidence as to contested facts; seeking access to a video link), it is obviously disruptive to a person such as the Claimant who is presently studying in this country. By contrast, if a perceived breach of conditions of permission to remain is dealt with by the curtailment route under the Immigration Act (IA 1971), this triggers an in-country right of appeal to the FTT under s82(2)(e) NIAA 2002. As I shall explain, these are two distinct routes of appeal and there is no overlap, and no circumstances in which the appellant has any election as to which route to follow. Although it was pointed out in the case of SSHD v Lim [2007] EWCA Civ 773 that the difference between the success rates of the two routes is not very great, it was accepted by the Court of Appeal in that case that the in-country route has obvious advantages so far as the potential appellant is concerned, not least in being able to give evidence live without needing a video-link, and avoiding the disruption and potentially significant costs of return following removal if, ultimately, an appeal is successful. The means by which the choice is made by the Defendant as to which route of appeal is triggered is therefore potentially significant.
7. The Claimant's case, in short, is that the fact of a discretion triggers a duty to exercise it, and be seen to do so, fairly and rationally. This includes giving adequate reasons, and acting consistently with the Secretary of State's approach to illegal entrants, and with published policies set out in s7 and 50 of the Home Office's Enforcement Instructions & Guidance. He also submits that fairness requires that the Defendant should convey to the Claimant the basis for exercising her discretion to make directions for removal under s10 IAA 1999 rather than following the curtailment route. There is no evidence that the decision-maker in this case recognized that there was any discretion as to whether or how to enforce, and if, despite the absence of evidence to this effect, there was any exercise of discretion, the Claimant says she exercised it unfairly.
8. The Defendant submitted that it is an obvious corollary of the statutory scheme that the normal route for dealing with a person caught breaching conditions of his leave to remain is a direction under s10 IAA 1999; that whilst there is a discretion to act via the curtailment route, there is no duty specifically to make mention of the exercise of discretion when making a decision to enforce under s10 IAA 1999; that what fairness demands by way of reasons is context-specific; and that the duty to give reasons at the point of making a s10 decision is limited, since an out-of-country appeal is the primary route envisaged for challenge of a removal decision. She also submitted that the Claimant did in fact receive a sufficient gist of the reasons for the decision to enable him to understand it.
9. Before addressing the rival contentions on these propositions, I must set out the facts and the law.

The facts

10. The facts may be relatively shortly stated. The claimant is a Nepalese national who is now 24 years old. He entered the UK lawfully on 4 October 2009 under the terms of a valid student visa. On 22 January 2011, he was granted further leave to remain on a Tier 4 (General) student visa, which was valid until 31 December 2011. Under the terms of that leave, the Claimant was entitled to work for up to 20 hours a week during term time, and for unlimited periods of time out of term time. I understand that he exercised his limited right to work by working in the kitchen at the Royal Nepalese Restaurant in South East London.
11. On 30 December 2011, the Claimant applied for further leave to remain as a Tier 4 (General) student. This application was granted on 18 February 2012, with further leave to remain until 22 June 2013, but this time without permission to work. Thus, at the relevant time, the Claimant was lawfully present in the United Kingdom, but could not lawfully engage in any work here.
12. The incident which gives rise to the present challenge occurred on 28 January 2013. The Claimant was in the Royal Nepalese Restaurant. He says, in his witness statements of 31 January 2013 and 29 October 2013 that he was there visiting friends, with whom he used to work when he had a visa which permitted this, and was not himself working. There are conflicting accounts of what happened in the Royal Nepalese Restaurant on 28 January 2013. The Claimant says he was talking to his friends, and not working. He says that he became flustered by being questioned by immigration officers, but they are wrong to consider from his manner he was being evasive.
13. The Defendant's case is that they believed him to be working illegally in the Royal Nepalese Restaurant. The first detailed evidence of this is set out in the witness statement of 12 June 2013, made by Maggie Khay, who is a UKBA Officer who attended the Royal Nepalese Restaurant on 28 January 2013 as part of an arrest team. She does not suggest that she herself saw the Claimant working. She says that on that day, she entered the kitchen area where a fellow immigration officer, a Mr Murray, was escorting the Claimant away from the preparation and cooking area. There is no direct evidence from Mr Murray. Ms Khay reports that she was told by him that he had seen the Claimant cutting up meat in the kitchen. She did not interview the Claimant under caution. Nonetheless she highlights what she regards as various inconsistencies and evasions in the Claimant's statements to her. She says that she asked a co-worker, Sanjeev Lamsal, if the Claimant worked in the restaurant and he said that Claimant had worked there for over a year. (I am not a tribunal of fact, but I note that there is a statement in the bundle from Mr Lamsal dated 20 October 2013, in which Mr Lamsal says that he told the officer that he used to see the Claimant during working hours 'some time in late 2011' – ie over a year ago. There is a similar statement from a Mr Bhandari who also worked at the restaurant, dated 23 October 2013).
14. This is the evidential basis upon which it was decided that the Claimant was working. There was no evidence from the list of evidence which Chapter 50.6 of the Defendant's Enforcement Instructions Guidance (EIG) for immigration officers state is likely to be expected before the making of a removal decision under section 10 IAA 1999. Taking these matters sequentially: there was no admission under caution from the Claimant that he was working in breach; there was no attempt to interview any manager or owner of the restaurant or any statement by a manager or owner implicating the Claimant; no evidence of any attempt to examine the payroll of the Royal Nepalese Restaurant, any National Insurance or tax records for the Claimant; there is no evidence from Ms Khay or a colleague or police officer giving a written statement to that effect that they had seen the Claimant working {and Mr Murray's oral report to Ms Khay is not of seeing the Claimant work on more than one occasion nor over an extended period}; the Claimant was not wearing a uniform (and it is not said if other staff were).
15. The absence of this evidence is not cited to the strength or weakness of the Defendant's case for concluding that the Claimant was working, but is material when I come on to consider whether the decision to exercise a discretion under section 10 IAA 199 was a departure from the Defendant's published policy under the EIG.
16. I also make no observations on the evidence upon which the findings of fact were made, other than to say that there are obvious conflicts, and issues which are capable of more than one understanding. These are matters which, in due course, may fall to be considered at an appeal before the FTT. I cannot, and am not asked, to resolve the issue of fact as to whether or not the Claimant was, as the UKBA officers say they believed, working, when they encountered him on 28 Jan 2013. I note only that their belief that he was working had extremely serious consequences for the Claimant.
17. On the same day as the raid on the Royal Nepalese Restaurant, the Claimant was detained. He was immediately served with an IS151A, part 1 form which notified him that he was a person in respect of whom removal directions may be given in accordance with s10 IAA 1999 (Administrative removal) as a person who had failed to observe a condition of leave to remain. There was a box on the form for a 'Specific Statement of Reasons'. This box was completed with the statement

"You are specifically considered a person who has breached the conditions of their visa in that you were encountered working in the kitchen of the Royal Nepalese Restaurant on 28/1/2013."

18. At the same time, the Claimant was served with a Form IS151A, part 2 which informed him that a decision had been taken to remove him from the UK, and informed him of a right of appeal out of country under s82(1) NIAA 2002. He was also detained, on the basis that his removal from the United Kingdom was imminent. All this took place on the evening of 28 January 2013.
19. On 31 January 2013, lawyers acting on the Claimant's behalf served a letter under the pre-action protocol for judicial review seeking cancellation of the Claimant's removal. This asserted that the Claimant should be entitled to appeal the decision in-country prior to any removal as no evidence had been provided to support the decision to remove. This letter was accompanied by a very short witness statement from the Claimant asserting that he had not breached the conditions of his leave. The statement said that on 28 January 2013, he had gone to the Royal Nepalese Restaurant to visit a friend who worked there, and that he himself was not working. He said that he was a genuine student ( a fact also borne out by his attendance records), and wished to challenge the decision that he was in breach of condition before removal.
20. I have not been shown any response to that letter. However, on 31 January 2013, removal directions were served on the Claimant which set his date for removal as being 7 February 2013.
21. On 1 February 2013, the Claimant's solicitors again wrote to the Defendant asking whether the Claimant's letter before claim had been considered before removal directions were set. A formal pre-action letter was sent on 2 February 2013. On 3 February 2013, the Treasury Solicitor responded to the letters of 1 and 2 February. Thereafter, unsatisfied with these replies, the Claimant issued an application for judicial review on 5 February 2013. On 6 February 2013, the removal directions were cancelled.
22. Permission to challenge the decision of 28 January 2013 was granted by Mrs Justice Swift on 11 March 2013 on limited grounds, and on 13 June 2013, the Defendant settled grounds of defence which referred to a witness statement of Ms Khay dated 12 June 2013, which I understand was disclosed at the same time. This was the first time that the Claimant saw the evidence or any detail in support of the Defendant's case that the Claimant had been working in breach of his tier 4 leave to remain, or any specific reasons for the decision under s10(1) IAA 1999 beyond the 'Specific Statement of Reasons' on the decision itself, quoted in full in paragraph 17 above.
23. On 31 October 2013, Mr Justice Walker adjourned the substantive hearing of the claim, to allow the Claimant to amend his grounds and to permit the Defendant to reply. It is on the basis of the amended grounds and amended response that this application now proceeds.

The law and policy

24. There are various powers administratively to remove a person who is not a British citizen. However, the only one relevant to the present case is contained in section 10 IAA 1999 to which I have already made reference.
25. Section 10 provides, so far as is material:

"(1) A person who is not a British citizen may be removed from the United Kingdom in accordance with directions given by an immigration officer, if

(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave …

…

(8) Where a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him.

(9) The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Secretary of State.

…".

26. Where an immigration officer believes that there is a failure to comply with conditions of leave to remain, he is not obliged to enforce against this non-compliance by means of making a direction under s10 IAA 1999. There are also powers under IA 1971, instead to curtail the grant of permission to remain. That decision triggers an in-country right of appeal, in accordance with the provisions of the NIAA 2002.
27. Any immigration decision as defined in section 82(2) NIAA 2002 gives rise to a right of appeal to the FTT by virtue of section 82(1) NIAA 2002. A decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a) IAA 1999 falls under section 82(2)(g) NIAA 2002. A decision to vary a person's leave to remain in the United Kingdom is also an immigration decision giving rise to a right of appeal if, when the variation takes effect, the person has no leave to remain (section 82(2)(e) NIAA 2002).
28. An appeal against an immigration decision may be made on one or more of the grounds set out in section 84 NIAA 2002. Grounds upon which such an appeal can be brought include (i) that the decision is 'otherwise not in accordance with the law' (s84(1)(e) NIAA 2002); (ii) that the person taking the decision should have exercised differently a discretion conferred by immigration rules (s84(1)(f) NIAA 2002); and (iii) human rights grounds (s84(1)(g) NIAA 2002).
29. Thus there is no issue that the decisions of 28 January 2013 can be challenged in the FTT. However, the route of appeal against a decision depends upon the immigration officer's decision as to which enforcement route to adopt. This is a consequence of the legislative scheme of NIAA 2002. Section 92(1) NIAA 2002 provides that a person may not appeal under section 82(1) while he is in the United Kingdom, unless his appeal is of a kind to which the rest of section 92 NIAA 2002 applies. Section 92 makes no reference to a removal decision under s10(1)(a) IAA 1999, so this gives rise only to an out of country right of appeal. However, section 92(2) provides that an in-country right of appeal arises in relation to an appeal against a decision made under s 82(2)(e) NIAA 2002.
30. These routes are separate and distinct. Although a decision to remove a person under section 10(1)(a) IAA 1999 has the automatic effect of removing what would otherwise be valid leave to remain by operation of section 10(8), it cannot thereby be treated also as being treated as a variation of leave thereby giving rise to a right of an in-country right of appeal under section 82(2)(e) NIAA 2002. That was the decision of the Court of Appeal in R(RK) v SSHD [2009] EWCA Civ 359 at [35] per Aikens LJ, in which the Court was asked to resolve conflicting first instance decisions on this point. The Court of Appeal held that since a decision stated to be made under section 10 IAA 1999 gives rise to an out of country right of appeal within section 82(2)(g) NIAA 2002, this was an exclusive route. The in-country right of appeal available in respect of a variation of leave under s82(2)(e) NIAA 2002 could not be simultaneously available to challenge a decision to remove on the basis of a s10 IAA 1999 direction, in a case where there was no challenge to the use of that section.
31. The Court of Appeal made specific reference to the absence of a challenge to the decision to enforce under section 10 IAA 1999 in that case, and the Claimant drew attention to that point of distinction from the present case.

The current challenge

The basis of the claim

32. The Claimant in the present case does undertake the challenge eschewed in RK in that he attacks the fairness of the process through which the decision was made to proceed to enforcement action under section 10 IAA 1999, not just the factual or legal basis for that decision.
33. As I have noted, it was common ground that, having formed a view that the Claimant was working in breach of the conditions of his visa, the immigration officer had a discretion as to whether to take enforcement action or not, and if so, whether to do so down the curtailment route, triggering an in-country right of appeal under s82(2)(e) NIAA 2002 or the administrative removal route, triggering an out-of-country right of appeal under s82(2)(g) 2002.
34. I accept that where, as here, there is a discretion, it must be seen to be exercised and exercised fairly. I also accept that there is no evidence here to support the Defendant's assertion that there was an exercise of discretion as between the alternative enforcement routes: nothing in the documentation or Ms Khay's evidence supports that statement.
35. However, that might have been an entirely academic point if it were obvious that the only possible or realistically likely exercise of such discretion would be to enforce under section 10 IAA 1999 in the circumstances of the case.
36. Counsel for the Claimant says that this is cannot be said, because even if (contrary to his primary case) there was an exercise of discretion, any such exercise was unfair, for two reasons. First, it was inconsistent both with the approach the Secretary of State has bound herself to take in considering whether or not to issue removal directions against illegal entrants, and with the terms of the Enforcement Instructions and Guidance. Secondly, it is said that the Claimant was (unfairly) not given the gist of the information used to reach the decision to issue removal directions so as to enable him to respond. I should add that the second limb of the unfairness argument was also advanced as a free-standing fairness point.

Threshold argument: proceeding by way of judicial review

37. Mr Barnes for the Defendant submitted that this was not a claim which should be permitted to proceed by way of judicial review at all. In SSHD v Lim [2007] EWCA Civ 773 at [13], the Court of Appeal repeated the familiar proposition that judicial review is a remedy of last resort. Where a suitable statutory appeal is available, the court will exercise its discretion in all but exceptional cases by declining to entertain an application for judicial review. Mr Barnes, in his able and attractive submissions on behalf of the Secretary of State, submitted that this was not a sufficiently exceptional case, and that it would undermine the appellate structure to permit the present challenge to proceed by way of judicial review.
38. Mr Biggs, for the Claimant, invited me to treat this as a point which has already been determined in his favour. He pointed out that this submission was canvassed, both orally in writing at the permission stage, and yet both Mrs Justice Swift and Mr Justice Walker have been persuaded to grant permission to proceed by way of judicial review. He relied upon the case of R(Alapati) v SSHD [2009] EWHC 3712 (Admin) in which Sir Thayne Forbes held at [17] that he ought to exercise his discretion to entertain a substantive application where the alternative remedy point had been raised at the permission stage, but permission had been granted, even where (as here) the permission judge made no reference to exercise of discretion when granting permission.
39. I am not bound by Swift and Walker JJ's decisions – indeed, Mr Biggs did not suggest otherwise – but I regard them as highly persuasive. It is well established that questions of alternative remedy are usually ones to be resolved at the permission stage. Neither of the earlier judges, both seised of the alternative remedies issue, dismissed these applications on that basis, and those decisions are worthy of respect. It would have taken some special factor to persuade me to depart from them and dismiss the application for failure to pursue alternative remedies at the substantive hearing. At the same time, the fact that discretionary factors have not rendered the case unarguable does not mean that they are irrelevant at the substantive hearing, especially where the permission judges' thinking on this matter is not spelt out in their permission decisions.
40. I have therefore considered the question of alternative remedies de novo. I do not consider that there is an alternative remedy which ought to preclude the exercise of the administrative court's jurisdiction or (if the claim is well-founded) the grant of a remedy, for three reasons.
41. Firstly, the challenge in this case is not to a question of law or fact which would also be apt for consideration before the First Tier Tribunal. The focus of a decision of the FTT would be the merits and legality of the decision under section 10(1)(a) IAA, not to the question of whether the decision to adopt this (rather than some other, or no) enforcement action was lawful and appropriate.
42. This does not appear to me to be a situation akin to Lim. In that case the question of law was one which could properly be regarded as equally capable of resolution by the Administrative Court or the FTT, and the issue was whether the claim was sufficiently exceptional to justify the matter being considered by this court given the intention of the statutory scheme as to what is to be the 'usual channel'. But this case is rather different. It is not a challenge to the decision under section 10(1)IAA 1999, but to the prior decision to proceed under that section at all. The questions in this case are about how the immigration officer went about exercising her discretion as to what if any enforcement action to take; what if any steps were required by way of giving of reasons in circumstances where it was decided to take some such action; and whether it was rational to do so in the circumstances given apparent policies to the contrary. This was not therefore a case about whether to depart from requiring an appeal to be heard through the 'usual channel' of out of country appeal, but a prior decision as to how it should be established whether the 'usual channel' would be an in-country or out of country appeal. From the resolution of the question about lawful exercise of discretion flows the answer to the question what is the 'usual channel', because the outcome of that determination affects which of two distinct routes of appeal is triggered: the in-country route, or the less convenient and more disruptive out-of-country route.
43. The question of what steps are required, as a matter of fairness or rationality in the taking of a decision which determines which of those two distinct appeal routes applies, is more apt for the supervisory jurisdiction of this court than for the FTT itself to address in the context of an appeal which has by then come to it by one route or another.
44. Secondly, I am not convinced that the statutory procedure can in fact provide a suitable alternative remedy given the nature of the challenge. By the time the matter is before the FTT on an out-of-country appeal, it will be too late for the tribunal to provide an adequate remedy if it decides that inadequate reasons were given for rejecting the in-country appeal route. By that time, in practical terms, the possibility of an in-country right of appeal has already been lost, and the detriment the Claimant wishes to avoid will already have occurred. Thus, where the complaint is that the Secretary of State has acted unlawfully or unfairly in exercising his discretion as to choice of enforcement mechanism, and has thereby unfairly consigned an appellant to the less favourable of two distinct appeal routes, the appellate body itself cannot itself provide a suitable alternative safeguard against the putative wrong.
45. Thirdly, as Mr Justice Walker indicated at the hearing on 31 October 2013, the amended grounds in this case raise points of considerable wider importance as to the fair and appropriate application of discretion. The wider public interest in clarity on this point is also a factor which justifies keeping this claim in the High Court. I note the observations of the High Court in R v Huntingdon District Council ex parte Cowan [1984] 1 WLR 501 at 507:

"the court should always ask itself whether the remedy that is sought in court or the alternative remedy is the most effective and convenient in all the circumstances, not merely for the [claimant], but in the public interest. "

The proliferation of alternative remedies and statutory tribunals in the intervening thirty years does not detract from the relevance of those words.

46. I ought to note that Mr Barnes, for the Defendant, referred me to the recent decision of Ali Zahid v SSHD [2013] EWHC 4290 (Admin). This was a challenge to a decision under s10 IAA 1999, which Coulson J rejected on the basis of a 'threshold point' that the Lim test of exceptionality was not met and the case ought to go to the FTT on an out of country appeal. However, the question of exceptionality was not argued on the basis advanced before me, and for reasons which I set out below, the facts in relation to exercise of discretion were very different from this case, and although the question of unfair exercise of discretion was one of the grounds in that case (and is discussed below), on the facts of the case, the strength of that ground of review was too weak to justify proceeding by way of judicial review.

Exercise of discretion

47. I find it convenient to take the Claimant's second ground first. It was common ground that where an immigration officer believed a person had breached his conditions of leave, the immigration officer had a discretion as to whether to make a removal direction under section 10 IAA. The issue between the parties as to what fair and rational exercise of that discretion involved, flowed from that concession.
48. I accept the Claimant's submission that a person deciding to make a removal direction under s10 IAA must do so properly and fairly. There must be some material before the court to show that this has been the case. Here, there is nothing which indicates that the Defendant's officer was even aware that she was exercising a discretion: in the section on 'reasons' in the decision notice, is simply the factual assertion of when and where it is said the breach of visa conditions was committed.
49. I also accept that the exercise of discretion in this case was not demonstrably rational and fair.
50. Since the decision-maker has not demonstrated any awareness that she was exercising a discretion, nor is there material to indicate what considerations informed any such exercise, and I am unable to see that such exercise (even if it took place) was informed by a balance of relevant considerations.
51. The Claimant suggested a second limb of unfairness, namely, that the Defendant's approach was inconsistent. Her approach in respect of enforcement was significantly less favourable in respect of those had entered the country lawfully, but who had unlawfully breached a condition attached to their leave, than in respect of those who had entered the country unlawfully. In support of this submission, the Claimant relied upon the decision of Mr Justice Gage in R(Uluyol & Cakmak) v An Immigration Officer CO/1960/00 (unreported). In that case, the claimants had entered the country via a freight-only port and claimed asylum. They were interviewed by immigration officers and, on the next day, were served with 'Notices to an Illegal Entrant'. Mr Justice Gage held that, although the claimants in that case had in fact entered the country without leave, and therefore (ipso facto) unlawfully, the immigration officer had a discretion as to whether to treat them as illegal entrants and whether or not to serve them with Notices to an Illegal Entrant which are precursors to the giving of removal directions. He held (at [44]-[45]) that since he had found that such a discretion existed:

"Before exercising the discretion to treat them as illegal entrants … they ought to have been given an opportunity to explain why they were here and what their intentions were. It is tempting to think that if they had been given the opportunity to explain and state their intentions, the decision of the immigration officer would have been the same.

But I conclude that this is not necessarily so. In the circumstances, in my judgment, the discretion was not properly exercised. The decision to serve Illegal Entrant Notices was flawed and the notices must be quashed …"

52. In the light of that decision, the Secretary of State considered it necessary to introduce an additional procedure 'to be followed in all illegal entry cases' (emphasis in the original) to comply with the strictures of Gage J's judgment. Chapter 7 of the Enforcement Instructions & Guidance provides that

"The consideration of any additional factors, or representations, already forms part of the decision-making process followed by officers dealing with illegal entry cases. However, previously, this has not been demonstrably separated from the consideration of the illegal entry contention. The judgment referred to means that it is now necessary to do so and to record the fact that the discretion whether or not to serve papers has been considered. Officers not only have to do it; they have to be able to show they have done it." (emphasis added).

53. The EIG goes on to describe it as 'imperative' that "the facts are examined so as to determine whether the strength of the evidence is such that a contention of illegal entry can be properly supported. If there are any doubts, then service of illegal entry notice should be deferred pending further enquiries". It then states that:

"The next step is then to consider whether it would be fair in all the circumstances to treat the individual as an illegal entrant and serve a notice of illegal entry on them. The key question when making this decision is whether the service of a notice of a notice of illegal entry would disadvantage the individual in some way.

If it is concluded that prejudice would be caused, consideration should then be given as to whether or not there are any reasons why it is nevertheless fair and appropriate to serve papers. In doing so, account must be taken of any information and/or representations available. The fact that service of illegal entry papers may disadvantage the individual in some way does not automatically mean that they should not be served if it is concluded that it is appropriate to do so.

It is vital that there is a written record showing consideration of the exercising of discretion not to serve the notice and that this issue has been addressed separately from the question of whether or not the Individual is an illegal entrant" (emphasis in the original).

54. In other words, since the Uluyol decision, the Secretary of State accepts that in the case of an illegal entrant, fairness and transparency require the decision maker:

i) to make a decision on the basis of a fair enquiry as to whether the strength of the evidence is such that the precedent fact (of illegal entry) is properly established, and note the basis this briefly on the file;

ii) to make, and be able to demonstrate that she or he has made, a separate, properly considered and fair decision as to whether to take enforcement action, based on all available information and representations, and balancing the reasons for doing so with prospective disadvantage of doing so for the person concerned.

55. In the end, the Secretary of State was unable to distinguish the reasoning of Gage J in Uluyol or offer any convincing reason why the requirements of fairness in the case of enforcement should be any different in relation to a person said to be an unlawful entrant and a person lawfully in the country said to have breached conditions of his leave to remain. I do not accept the Claimant's submission that the requirements of fairness were greater in a 'breach of condition case', but nor can I see any reason why they should be any lower: to paraphrase Lord Bingham in Ullah, the requirements are 'no more, but certainly no less'.
56. Once it was conceded that there was a discretion as to whether or not to take enforcement action (and if so, which type of enforcement action) against those lawfully present but judged to be in breach of a condition of leave, the decision maker must in my judgment record such facts as to enable this court to satisfy itself that the decisions as to existence of precedent fact and consequent exercise discretion have been exercised fairly: if a discretion exists, it must be exercised transparently and fairly.
57. Nor, despite Mr Barnes' valiant submissions to the contrary, did I see any evidence that the decision-maker in this case had appreciated that there was any distinction between her decision that the Claimant was working unlawfully and her decision to make a removal direction under section 10(1)(a) IAA 1999.
58. In that respect, this case is very different from Ali Zahid. That was a case where a young man was caught on a bicycle wearing a uniform delivering advertisements for a pizza delivery company. When interviewed, he claimed (falsely) that he had leave to do so. In other words, he admitted that he was working.
59. In that case, the contemporaneous material identified in the decision recorded that the decision-maker had formed her view that Mr Zahid was working 'having considered all the information'. The information upon which she relied was set out in a submissions document which contained significant evidential detail including (i) an admission under caution that Mr Zahid that he was working, (ii) a statement from the relevant Immigration Officer that Mr Zahid had been seen wearing the uniform of a pizza delivery company delivering pizza leaflets. That was enough to show that the evidence of breach upon which she relied met the 'firm and recent' evidence requirement of the EIG (discussed further below).
60. Secondly, in that case, there was a record of a separate exercise of discretion as to removal. The submission document quoted by the learned judge in paragraph 15c noted that having taken into account all the facts available, the decision-maker in that case was satisfied that the prejudice that Mr Zahid would suffer was not such as to make it unfair to serve him with a form IS 151A Notice to a Person Liable to Removal. In those circumstances Coulson J considered at [30]-[31] (albeit obiter) that 'all of the contemporaneous documents … made plain that the decision had been reached on a consideration of all the available facts, which expressly included the potential prejudice to the claimant'. He therefore found that on the facts of that case, which included significant and obvious dishonesty such as giving a false address, all demonstrated there had been a proper exercise of discretion.
61. By contrast, in the present case, there was no evidence that the decision-maker even appreciated that she had a discretion. There is no contemporaneous evidence to suggest that she knew or recognized that to found a section 10 decision she should be satisfied on the basis of 'firm and recent' evidence that there was a breach of condition of 'sufficient gravity' to warrant the making of an order under section 10.
62. There is no mention of why the allegation of breach set out in the reasons section of the decision notice led the officer to make a finding that this was a breach which satisfied the relevant provisions of the EIG at the relevant time as to when to make a removal direction.
63. Chapter 50.6 of the EIG as it stood at the relevant time (i) made it clear that there was a discretion as to whether to enforce against a person such as the claimant using s10 IAA 1999; (ii) stated in terms that to make a order under section 10 IAA, "the breach must be of sufficient gravity to warrant such action", and (iii) set out the evidence which it was said 'must' exist in order to establish this finding.
64. As to evidence, the relevant section of the EIG stated that to make an order under section 10 IAA 1999:

"there must be firm and recent evidence (within six months of working in breach, including one of the following:

an admission under caution by the offender of working in breach;

A statement by the employer implicating the suspect;

Documentary evidence such as payslips, the offender's details on the payroll, NI records, tax records, P45;

Sight by the IP or by a police officer who gives a statement to that effect, of the offender working, preferably on two or more separate occasions or on one occasion over an extended period, or of wearing the employer's uniform. In practice this should generally be backed up by other evidence …"

65. In the present case – in contrast to Ali Zahid, none of this evidence is present. There is no admission by the Claimant (under caution or otherwise); no statement by the employer (and only reports of oral statements by employees, which in the context may have been understood); there is no documentary evidence to support the belief that the Claimant was working; and although the officer making the decision says she had an oral report from a colleague that he saw the Claimant cutting meat, this is only on one occasion, not over an extended period, not in uniform. This was an unusual case because it was common ground that the Claimant had worked lawfully at the Royal Nepalese Restaurant in the past and says he had come to visit former colleagues who were also friends. So there was a plausible alternative explanation for why he was in the kitchen, why he knew where coats hung up, even why he might have been helping cut up meat just before the restaurant opened on a Nepalese religious festival day, without being paid to do so. In circumstances where what was said to have been seen was hearsay, in line with Chapter 50.6 of the EIG, one would have expected more enquiry – an interview under caution, for example (there was none); an enquiry to see whether there were payslips or other payroll records from the period in 2011 when the Claimant was lawfully working, and if so, whether there were any for the period in January 2013 when it was concluded he was unlawfully working. The presence or absence of this enquiry goes, not just to the factual correctness of the decision taken under section 10 IAA 1999, but the question of whether the decision to do so accorded with the Secretary of State's published policy as to the circumstances in which enforcement action would, and would not, be taken under that section.
66. In short, I accept that in this case, there is no evidence that the Defendant's officer appreciated she was exercising a discretion, rather than taking action which followed automatically from her belief that there had been a breach; that there is no evidence of any focus on the gravity or otherwise of the breach. If I am wrong about this, I also consider that the exercise of discretion was in any event irrational and unfair, for two reasons. Firstly, because it was inconsistent with the approach taken to consideration of enforcement action against illegal entrants, ever since the decision in Ulyol, and was subject to no equivalent safeguards. Secondly, because enforcement action under section 10 IAA 1999 was taken in circumstances in which Chapter 50.6 of the EIG suggests that it would not be taken, and no reasons were given or were apparent from the evidence as to why this might be a case for departing from that published policy.
67. This leads me to the other limb of the Claimant's argument, which was that fairness in any event demanded that the Claimant be given reasons for the exercise of discretion to take enforcement action under section 10 IAA 1999. As I understood it, this argument formed part of the argument as to irrational and unfair exercise of discretion under Ground 2, but also formed a free-standing Ground 1.
68. It is axiomatic that the requirements of fairness vary from context to context. The Defendant of course accepted a duty to act fairly, but said that this duty did not require the giving of reasons to the affected person at the point when a section 10 notice was served. This was because the statutory scheme under section 82 and 92 NIAA 2002 gave a right of appeal only once the subject of the decision was out of country, and it was therefore only once an appeal was lodged that fairness demanded that reasons be given for the decision. So, although Mr Barnes for the Secretary of State conceded that the immigration officer had to have reasonable evidence upon which she could form a rational judgment that the Claimant was working in breach of his visa conditions, at the time of taking enforcement action, fairness only required that evidence to be communicated to the affected person when he appealed.
69. I do not accept that submission, for two reasons. Firstly, the court must be in a position to see that the decision-maker appreciated at the point of making a section 10 decision that she had a discretion, and that she exercised it fairly and in accordance with the Secretary of State's published policy under the EIG, or recognized that she was departing from it and said why this was so. This does not require very detailed reasons (or what Coulson J in Ali Zahid described as 'hand-wringing') , but it does require enough to enable the Court to see that the decision-maker correctly addressed the issue of discretion and at least on her own stated case, had rational grounds for doing so. Otherwise, the court cannot see that the decision-maker has acted fairly in determining that the other potential issues of fact and law ought to be determined, in accordance with the scheme of the NIAA 2002, on an out-of-country, rather than an in-country appeal.
70. There is a second reason why, in my view, fairness demands at least outline reasons be given at the point of making a section 10 decision. The facts of this case illustrate that, where such a decision is taken, the time between the reaching of the decision and removal is likely to be very short. That is, indeed, an essential element of the logic of the NIAA 2002: removal first, challenge later. It is certainly no part of this court's constitutional role to interfere with the legislator's choice in that respect. Nonetheless, as the Court of Appeal recognized in Lim, being able to proceed with an appeal only out of country creates certain practical difficulties for an appellant. Seeking and paying for access to a video link is one potential issue, identified by the Court of Appeal in that case. Securing evidence in the United Kingdom is another. To take this case as an example: if the Claimant were to be pursuing an appeal against a removal decision from Nepal, it would be important to him to be able to establish (if that were the case) that the evidence of his co-workers that he had worked at the Royal Nepalese Restaurant for over a year had been misunderstood, because they were talking about his work during 2011, not in January 2013 when the question was asked. It would be more difficult for the Claimant to seek evidence from those co-workers if he did not know that their apparent statements formed part of the case against him until he was on the other side of the world, and (potentially) a long period had passed, both of which would make it less likely that he could locate and take evidence from these people.
71. In my judgment, therefore, fairness demands that at least the gist of the evidence upon which a removal decision under section 10 IAA 1999 is taken be communicated to the subject of that decision at the time when the decision itself is communicated, both in order to ensure that the court can see that there has been a lawful and rational and exercise of discretion; and also to ensure that the appeal process is as fair as possible, consistently with the policy of out-of-country appeals in the statutory scheme of NIAA 2002.
72. For these reasons, as I indicated on the date of the hearing, I would allow this application for judicial review and quash the decisions of 28 January 2013. I will hear the parties on any other questions of relief or consequential issues at a separate hearing.