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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 >> Gaogalalwe, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 1709 (Admin) (06 July 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1709.html Cite as: [2017] EWHC 1709 (Admin)

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

		Birmingham Civil Justice Centre Priory Courts, B4 7NA
		06/07/2017

Mr Justice Garnham:

Introduction

1. Mrs Veronica Gaogalalwe applied, with the permission of His Honour Judge Wall QC, for judicial review of decisions of the Secretary of State for the Home Department dated 30 September 2016 and 25 November 2016. By the first of those decisions, the Secretary of State refused the claimant indefinite leave to remain in the United Kingdom; by the second, she ordered the claimant's detention pending her removal from the United Kingdom. Only the first of those two challenges is now pursued.
2. The claimant has been represented before me by Ms Deborah Revill; the defendant by Ms Naomi Candlin. I am grateful for their helpful and economic submissions.
3. At the commencement of the hearing today, I gave Ms Revill permission, on the claimant's undertaking to lodge the amended pleading and pay the appropriate fee, to amend her grounds to advance a fourth ground in addition to the three set out in her statement of facts and grounds.
4. I also gave the defendant permission to rely on detailed grounds of defence, a signed version of a witness statement from Ms Rachel Green and an expert report from Professor Peter French, all of which had been served late. Given that the claimant had sight of all that material for long enough to deal with it, I concluded that she would not in fact be prejudiced by its admission.

Background

5. The claimant, who was born on 28 November 1972, is a national of Botswana. She first came to the United Kingdom on the 1 April 2006, gaining entry pursuant to the terms of a visitor's visa which was valid until the 15 September 2006. Prior to the expiration of that visa, she sought and obtained leave to remain as a student. Thereafter, she commenced a number of courses of study and was granted successive extensions of her leave to remain as a student. Her latest leave expired on the 28 February 2015.
6. In support of her application for Leave to Remain as a Tier 4 General Student in September 2013, the claimant submitted a certificate of completion of the Test of English for International Communication (or "TOEIC"). That TOEIC certificate was provided by an organisation called the Educational Testing Service (or "ETS").
7. While present in the UK, the claimant says she obtained a number of qualifications. Those qualifications included a BTEC Higher National Diploma in Business Studies from EDEXEL, an Advanced Diploma in Business Studies from Cardiff Metropolitan University (in October 2012), a BA (Hons) (in 2013) and a Masters in Business Administration (in 2014). Ms Revill says the claimant was taught in English throughout.
8. In 2009 the claimant met a Mr James Warren, a British citizen, whom she married in August 2014. On 26 February 2015, the claimant applied for leave to remain as a spouse of a British citizen. That application was refused on 1 April 2016. The claimant was made the subject of a certificate under section 94 of the Nationality, Immigration and Asylum Act 2002. That certification had the effect that she was not able to exercise her right of appeal until she had left the UK. She has not exercised that right of appeal.
9. On the 12 April 2016, according to Ms Revill, the claimant instructed solicitors to make a further application on her behalf for indefinite leave to remain. She did so, first, on the basis of her ten year residence in the United Kingdom and second, on the basis of her family and private life in the United Kingdom. On 31 May 2016 the claimant received a letter from an organisation called CAPITA, on behalf of the Secretary of State, indicating that she had no leave to remain in the United Kingdom and should make arrangements to leave. Receipt of that letter was something of a shock to the claimant, who believed that by then her solicitor would have made an application for indefinite leave to remain. In fact, no such application was lodged until 13 June 2016.
10. By letter dated 30 September 2016, the decision letter in the present case, the application for indefinite leave to remain was refused on the ground that the claimant had overstayed her leave to remain since 1 April 2016, when the application to remain as a spouse of a British citizen was refused. The Secretary of State indicated that the claimant had had no leave to remain in the UK between 1 April 2016 and the date the application was received in June 2016, a period in excess of 28 days. Accordingly, it was said, the claimant was in breach of the Immigration Rules and, in particular, could not satisfy the requirements of paragraph 276B(v) of the Immigration Rules.
11. The letter set out the requirements of 276B of the Rules, sub-paragraph (v) of which provides as follows:

"(v) The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded…."

The letter went on:

"Consideration has been given to your application and it is noted from the above immigration history that following the refusal of your application for Leave to Remain as a Spouse of a Settled Person, on 1 April 2016, you did not seek to regularise your position in the United Kingdom until 13 June 2016 when you applied for Indefinite Leave to Remain under 10 years Long Residency."

Therefore you were without lawful leave between 1 April 2016 and the date of your application, a period of over 28 days. As such, you are in breach of immigration rules and therefore cannot satisfy the requirement of Paragraph 276B(v). You have provided no exceptional, compelling or compassionate grounds on which the lateness of your application should be disregarded.

12. The letter then addressed what was entitled "General Grounds for Refusal." It read as follows:

"In addition to the consideration in Parts 2-8 of the immigration rules, Paragraph 322 sets out the grounds on which applications should normally be refused.

In your application for leave to remain as a Tier 4 General Student dated 23 September 2013 you submitted a TOEIC certificate from Educational Testing Service ("ETS").

ETS has a record of your speaking test. Using voice verification software, ETS is able to detect when a single person is undertaking multiple tests. ETS undertook a check of your test and confirmed to the SSHD that there was significant evidence to conclude that your certificate was fraudulently obtained by the use of a proxy test taker. Your scores from the test taken on 28 March 2012 at London School of Technology have now been cancelled by ETS. On the basis of the information provided to her by ETS, the SSHD is satisfied that your certificate was fraudulently obtained and that you used deception in your application of 23 September 2013.

At the time you took your test, as you will have been aware, ETS was an approved provider of Secure English Language Tests (SELT) for UK immigration purposes. Its role as a SELT provider was to help ensure that those who seek to enter or remain in the United Kingdom are able to speak English. As recognised in Para 117B(2) of the Nationality, Immigration and Asylum Act 2002, those who can speak English are less of a burden on taxpayers and are better able to integrate into society. Although you did not rely on your TOEIC certificate for the purposes of your current application for leave to remain, your complicity in the fraud nonetheless contributed to an extremely serious attack on the maintenance of effective immigration controls and the public interest more generally.

Accordingly, I am satisfied that your presence in the UK is not conductive to the public good because your conduct makes it undesirable to allow you to remain in the UK. As false representations have been made in relation to a previous application, it is refused under paragraph 322(2), of the Immigration Rules as below:

322(2) the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave.

In your current application, at Section D10 of the SET (LR) form, you said that you have never used deception when seeking leave to remain. You go on to contest the Secretary of State's refusal of your previous application in this regard. Although note has been made of this, you have provided no evidence to support your contention and accordingly the refusal for previously employing deception is maintained.

As you fall for refusal under General Grounds you do not meet the requirement of 276B (iii) of the Immigration Rules and therefore your application for indefinite leave to remain is to be refused."

13. The Secretary of State then considered the application for indefinite leave to remain on the basis of the claimant's family and private life, explaining that the application had been considered under the 10-year partner and private life routes contained within Appendix FM and paragraphs 276ADE (1)-CE of the Immigration Rules, and outside the Rules on the basis of exceptional circumstances.

"There has not been a significant change in your circumstances since your previous refusal, except that you have been in the UK for a longer period. It is still not accepted that there would be insurmountable or significant obstacles to your marriage continuing in Botswana, or to your reintegration into Botswana if required to leave the UK.

In view of the above, the Secretary of State is not satisfied that you meet the requirements for the 10-year partner and private life routes. Your application is therefore refused under D-LTRP.1.3 with reference to R-LTRP.1.1(c) and (d), and paragraph 276CE with reference to paragraph 276ADE (1)(iii) – (vi) of the Immigration Rules."

14. Under the heading "Exceptional Circumstances" the Secretary of State wrote :

"It has been considered whether the particular circumstances set out in your application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.

As defined by paragraph 117B of Section 19 of the Immigration Act 2014:

(4) Little weight should be given to-

(a) private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

Any claimed private life in or ties to the UK was established with your full knowledge that you did not have permission to remain here permanently, and when your immigration status was precarious, i.e. with limited leave to remain under a temporary capacity that does not lead to settlement. As such, you should have prepared yourself for the possibility of return to Botswana. You have not shown that you would be unable to maintain your friendships from overseas through modern means of communication.

Your application has been considered under Article 8 of the Human Rights Act. The Secretary of State has given careful consideration to your case and is satisfied that this decision does not represent a breach of your Article 8 rights. In reaching this decision the Secretary of State notes that there is nothing to prevent you exercising your right to a family and private life in Botswana.

The Secretary of State notes that you have not provided a Life in the UK test pass notification letter with your application. Your representatives have requested that your passport be returned to you to enable you to sit such a test. However, given the date at which your application was lodged, and your conduct in obtaining leave to remain by deception, your application falls to be refused on these grounds. It is not considered that providing a LUK test would change this decision. In any event on this occasion, despite not providing such a letter, this does not form a ground for refusing you indefinite leave to remain.

It has therefore been decided that there are no exceptional circumstances in your case. Consequently your application does not fall for a grant of leave outside the rules."

15. The letter then turned to address paragraph 353 of the Immigration Rules. The Secretary of State wrote:

"We have concluded that your submissions do not meet the requirements of Paragraph 353 of the Immigration Rules and do not amount to a fresh claim. Some points raised in your submissions were considered when the earlier claim was determined and responded to in the letter giving reasons for refusal. The new submissions taken together with the previously considered material do not create a realistic prospect of success. "

16. Further representations were made on the claimant's behalf by a new firm of solicitors instructed by her. Their letter was dated 20 October 2016.
17. On 25 November 2016 the claimant was detained. On 28 November 2016 the Secretary of State responded to the claimant's further submissions. The Secretary of State wrote:

"You have stated that you instructed your previous representatives to file your application well ahead of the date in which it was acknowledged by the Home Office. You have supplied evidence in the form of emails between you and your previous representatives which does seem to show that your then representatives submitted your application to the Home Office on or before 19 April 2016.

Whilst the above may be accepted, it is confirmed that the Home Office did not receive your application until 14 June 2016 where it was signed for by our Durham office. This has been confirmed via the Royal Mail Track and Trace facility using Special Delivery number AD 84856614 5GB. However, although it could be accepted that your previous representatives had failed to submit the application in a timely manner, as instructed by you, it is considered that your further submissions were still bound to be rejected for the reasons already outlined in the letter dated 30 September 2016. In light of this, it is not accepted that there is any discretion for the Secretary of State to use as the outcome would remain unchanged.

In light of the above it is not accepted that your submissions would create a realistic prospect of success."

18. That very day these proceedings were commenced.

The Grounds

19. Ms Revill advances four grounds of challenge. First, the claimant argues that the defendant acted irrationally in refusing the application under paragraph 276 B (v) on the basis that she had overstayed by more than 28 days. Second, she argues that the defendant's finding that she had engaged in fraud was irrational. Third, she argues that the defendant failed to have regard to relevant factors when refusing to grant leave under article 8. And fourth, by way of the new ground added with my permission on amendment, she argues that the Secretary of State acted irrationally in refusing to recognise the claimant's further submissions as a fresh claim.
20. I deal with each of those grounds in turn but it is convenient to begin with the first and third grounds.

Ground One – Rule 276B

21. Ms Revill argues that the decision under rule 276B is irrational or unfair. She says the only reason why the application was not filed within the 28 day "grace period" provided for by the rules was the negligence of her previous advisors. That it was a result of an error by those solicitors that the application was not lodged in time is not in dispute.
22. In my judgment, however, Ms Candlin's response to this ground is plainly correct. First, on a strict interpretation of the rules the application was out of time. The rules allowed a "grace period" of 28 days, which period expired on 29 April 2016; the application was not received until 13 June 2016. Second, the explanation of the delay in submitting the claim was not before the Secretary of State when the decision under challenge was taken. That decision was dated 30 September 2016; the additional submissions containing the explanation were only provided to the Secretary of State on 20 October 2016. The Secretary of State cannot be criticised for failing to take account of an assertion of which she was not aware.
23. Third, even if it is right that the only reason for the failure to apply in time was the error of the solicitor, the Secretary of State's letter of 28 November 2016 makes clear that it would have made no difference. As the Secretary of State says, the argument advanced as to the reasons for the delayed submission of the application could not survive the Secretary of State's decision on the claimant's alleged deception. I deal with that claim below. If the claimant were to succeed on the deception allegation, she does not need the present ground; if on the other hand she fails on the deception claim then in the light of the Secretary of State's letter of 28 November 2016, she cannot succeed on the 28 day period claim.

Ground Three – Family and Private Life

24. The analysis just articulated applies equally to the third ground, the claim based on family and private life. As Ms Revill accepts, even if she succeeds under this head, if she fails under the deception head this claim must fail. On the other hand, if she succeeds under the deception head this claim adds nothing.
25. In any event, in my judgment, the Secretary of State's argument on the third ground is well founded. The letter of 30 September 2016 referred to and incorporated by reference, the analysis contained in the letter 1 April 2016 in relation to family and private life. As Ms Candlin for the Secretary of State, submitted, the letter of 1 April indicated that the claim had been considered under both the 10-year partner route and the private life route contained within Appendix FM and paragraph 276 ADE(1)-CE of the Immigration Rules. Although the couple might not prefer it, there were no "insurmountable obstacles" or significant obstacles to the claimant's family life with Mr Warren continuing in Botswana, nor to the claimant's re-integration into Botswana life if she was required to leave the UK. She was, as the Secretary of State points out, a woman of 42 years who had lived in the UK less than nine years. There is no good reason why the claimant could not return to Botswana and no reason why she should not continue her family life with her husband in Botswana, if the two of them so chose.
26. I see no proper grounds for challenging the Secretary of State's conclusion in that regard. The Secretary of State is the fact finder, and in my judgment the conclusion that there would be no breach of Article 8 ECHR and no significant interference with family or private life was properly open to her.
27. The decision letter of 30 September 2016 makes it clear that the Secretary of State has considered the impact of the claimant's return to Botswana on both her own private life and the family life of her and her husband. It was said that the letter under challenge addressed substantively only the claimant's private life not her family life. But in my judgment that is not borne out by a careful reading of the letter itself. I have already set out the relevant paragraph of the letter which, in my view, makes it clear that the Secretary of State was considering both private and family life.
28. Accordingly, in my judgment this ground must fail.

Ground Two - Deception

29. As noted above on 23 September 2013 the claimant submitted an application for leave to remain as a student. That application resulted in the grant of leave until 26 February 2015. In support of that application the claimant submitted a TOEIC test certificate.
30. Rule 322(2) of the Immigration Rules provides that the "making of false representations….for the purpose of obtaining leave to enter or a previous variation of leave" would normally be a ground on which leave to remain or variation of leave should be refused.
31. As noted above, in her letter of 30 September 2016 the Secretary of State set out the basis upon which she considered that the claimant had made false representations in her application for leave to remain on 23 September 2013.
32. It was common ground before me that the Secretary of State's decision regarding the alleged deception can only challenged on Wednesbury principles. That was the effect of the decision of the Court of Appeal in R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784.
33. Accordingly the question for me is whether the decision to find that the provision of the test certificate amounted to a false representation was properly open to the Secretary of State.
34. It is also common ground that in addressing that question I should ask myself whether the Secretary of State has approached the matter in the manner directed by the Court of Appeal in SM & Qadir [2016] EWCA Civ 1167. That involves considering, first, whether the Secretary of State has met the burden on her of identifying evidence that the TOEIC certificate was obtained by deception; second whether the claimant satisfies the evidential burden on her of raising an innocent explanation for the suggested deception; and third, if so, whether the Secretary of State can meet the legal burden of showing, on the balance of probabilities, that deception in fact took place.
35. At the time of the decision and the challenge, the Secretary of State relied on information provided by the ETS to the effect that the claimant's TEOIC certificate had been invalidated due to use of a proxy test taker. Since then the defendant has sought and obtained corroborative evidence in the form of a witness statement from Ms Rachel Green and an expert report from Professor French.
36. Ms Green is employed by the Home Office as the Educational Testing Services Central Lead for the Appeals, Litigation and Subject Access Directorate. She has provided a detailed witness statement explaining how TOEIC tests results are extrapolated from the ETS database. She explains how what she calls a "Revised Lookup Tool" was created as a means of demonstrating whether a specific set of tests showed invalid or questionable results. She explains that the information relating to the claimant is taken from the revised lookup tool for the London School of Technology, the test centre used by the claimant, on 28 March 2012. The data shows that 31 scores (or 78% of the results) were deemed invalid because of the use of a proxy and 9 scores (23%) were questionable, and so could not be relied upon, as a result of the general practice of fraud at the test centre. The claimant's test results were said to be invalid indicating the use of a proxy.
37. Professor French provided his report for use in the Qadir case. Nonetheless, it is relied upon in the present proceedings because it provides opinion evidence on the methodology of ETS. The expertise of Professor French to provide opinion evidence of this sort is not disputed; it is clear from his CV that he is a singularly well-qualified expert.
38. Professor French explains how automatic speaker recognition systems are used by ETS with a view to identifying fraudulently obtained results in spoken English tests. He explains that all automatic speaker recognition systems make errors. He refers to the fact that ETS use trained listeners to help reduce the overall number of false positives produced by the analysis. He concludes as follows:

"1. The conditions used for trained listener pair confirmation, in conjunction with the (albeit unspecified) conservative thresholds set for ASR match identification … would, in my view, have resulted in substantially more false rejections than false positives.

2. Even though there is still material missing from the body of information called for by Dr. Harrison, I am not convinced that the provision of such information could be used to establish a closely specified percentage of false positives.

3. If the 2% error rate established for the TOEFL pilot recordings were to apply to the TOEIC recordings, then I would estimate the rate of false positives to be very substantially less than 1% after the process of assessment by trained listeners had been applied. This is because:

a. there were stringent criteria for verification by the trained listeners;

b. the trained listeners had potentially more speech available from the tests than that processed by the ASR;

c. the trained listeners had available a much wider range of speech features on which to base their decisions than just vocal tract resonances as reflected in an MFCC analysis performed by the ASR.

4. Even if the TOEIC recordings were on average somewhat shorter and poorer in quality than the TOEFL pilot test recordings, on the basis of the information that has been provided, I would still estimate the number of false positives emanating from the overall process of ASR analysis followed by assessment by two trained listeners to be very small."

39. It was agreed by Ms Revill that the information provided to the Secretary of State by ETS, together with the statement of Ms Green and the report of Professor French, are sufficient to shift the evidential burden described in Qadir from the Secretary of State to the claimant.
40. The claimant contends that she discharges the evidential burden on her by pointing to the qualifications she has obtained whilst present in this country. She relies most particularly on a diploma she obtained in December 2011 some months before the impugned test. She also points to her other educational achievements after the test, but Ms Revill concedes that that material is inevitably less weighty than that which pre-dates the test.
41. In my judgment, however, even the 2011 diploma is weak evidence that the claimant did not use someone else to take the spoken English test in 2012. The information about her educational qualifications came from her solicitors, not from her. I have no details about the nature of the diploma on which she relies or the level of English language needed to pass it. I do not even have evidence that the course and exams were conducted in English, although, as it was a course offered by the Metropolitan University of Cardiff, I am prepared to assume that much.
42. The essence of Ms Revill's case is simply that the claimant would have had no motive for cheating in the test because she was capable of passing it at the time. But, critically, I have no witness statement from the claimant confirming that it was she who took the test or providing any details about the circumstances in which the test was taken. In my judgment, such a statement, supported by a statement of truth signed by the claimant, is necessary to make good a rebuttal of an allegation of cheating on facts such as these.
43. With some hesitation I am willing to accept that the reference by her solicitor to her success in the exams referred to above is sufficient to discharge the low evidential burden placed on the claimant. I turn therefore to consider whether the Secretary of State can then discharge the legal burden on her to prove on the balance of probabilities that the tests were fraudulent.
44. In my judgment, balancing the powerful evidence provided by the Secretary of State pointing to a conclusion that the claimant's test result was obtained by fraud against the weak evidence provided by the claimant that her English language skills would have been sufficient to make cheating unnecessary, the Secretary of State's argument is irresistible. In my judgment the Secretary of State has made out her case that the claimant used fraud to obtain leave to remain.
45. In fact it seems to me that, in the light of the material now available, the claimant's argument on this ground is hopeless. It follows that the Secretary of State's decision refusing leave to remain is unimpeachable.

Ground Four – A Fresh Claim?

46. Ms Revill argues that the defendant acted irrationally in refusing to recognise the claimant's further submissions as a fresh claim pursuant to paragraph 353 of the Immigration Rules.
47. Paragraph 353 provides that:

"When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas."

48. As contended by Ms Revill, the proper approach to fresh claims is that set out in paragraph 11 of the judgment of Buxton LJ in R (WM (DRC) V Secretary of State for the Home Department [2006] EWCA Civ 1495:

"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

49. The claimant's central argument in support of this ground is that the Secretary of State failed to address her mind to the question whether a First Tier Tribunal ("FTT") judge might have reached a different conclusion on the merits of her case to that articulated by the Secretary of State herself in the decision letters. So, Ms Revill argues, a FTT judge might have accepted that the failure of her former solicitors to lodge the application within the 28 day period allowed by rule 276 B(v) constituted exceptional circumstances or that the defendant had not proven the alleged deception so that the refusal under rule 322(2) could not stand.
50. I agree that a FTT judge might have accepted the explanation for delay in lodging the application beyond the 28 day period. But the Secretary of State implicitly accepted that. Her response was, in effect, that even if that were so, the deception she had found meant the claim could not succeed. And in that regard my analysis means this argument cannot succeed. I have, in effect, carried out the task that the Secretary of State had to do, and asked whether there is anything in the argument on deception, and come to the clear view that the contention is hopeless. In my judgment, for the reasons set out in the preceding section of this judgment, there were no real prospects of a FTT judge concluding that the Secretary of State had not established her case on deception.
51. In those circumstances the fresh claim argument must fail.

Conclusion

52. For those reasons this application is refused.