Couple stranded at Heathrow airport win claim for unlawful detention

R (Shahid Iqbal) v Secretary of State for the Home Department [2017] EWHC 79 (Admin)

On 10 February 2015, Mr Iqbal and his wife were returning to the UK after a trip to Pakistan when they were stopped and detained at Heathrow. Mr Iqbal was a skilled migrant, having completed his MBA course as a student in the UK, and his wife had a dependent visa. They had valid visas, or so they thought.

Not according to the Home Office, however, who accused Mr Iqbal of cheating in an English language test in August 2013 by using a proxy test-taker at the now infamous English Testing Service (‘ETS’). For background on ETS fraud scandal, see my previous posts here and here.

While Mr Iqbal was out of the UK, the Home Office decided to cancel his visa and to remove him under section 10(1)(b) of the Immigration and Asylum Act 1999 (‘IAA 1999’), despite the fact that he was outside the UK when the relevant decisions were posted to his home address and logically could not be “removed” if he was in Pakistan.

The Home Office detained both Mr Iqbal and his wife for 2 days in a rather short-lived attempt to carry out the removal decision. They were released after their solicitors filed judicial review claims challenging the lawfulness of the decisions.

In the High Court, the government’s case was shambolic. The Secretary of State’s attempt to withdraw the decisions at the 11th hour to avoid a finding of unlawfulness was rejected. She also failed to:

• file and serve a detailed defence, as directed;
• file crucial late evidence with the Court (making no proper application to adduce it);
• provide her own counsel with a copy of the late evidence to show the Judge at the hearing.

What did the Court decide?

A decision to remove someone  who is accused of deception under the power in section 10(1)(a) IAA 1999 requires proof of the accusation. On a judicial review of the lawfulness removal decision, it is for the Court to determine whether or not the accusation of deception is proven.

As Justice Monaghan QC stated:

It is for me to determine whether the existence of precedent fact (deception) is proved, on which the lawfulness of the section 10 decision is dependent. (§ 31)

This is quite an important point for the large number of ETS fraud cases being challenged by judicial review. The question of whether judicial review is the right method of challenging decisions to cancel a person’s visa in ETS fraud cases, the law is getting murky.

While Iqbal suggests that judicial review is appropriate, it conflicts with the approach of the Upper Tribunal in Mohibullah (at § 71) which pushes firmly in the other direction. The UT is not at all keen to take on the extra burden of determining whether deception has been proven in hundreds of ETS judicial review cases. And because of the division of labour between the High Court and the UT, most ETS judicial reviews end up in the UT.

In this case, Mr Iqbal denied the deception and explained how he sat the language test himself. The Secretary of State relied on the well-used generic evidence from the Home Office officials (Peter Millington and Rebecca Collings) that has been doing the rounds for several years now. Its flaws are clear:

neither witness had any relevant qualifications or expertise, vocational or otherwise, in the scientific subject matter of these cases, namely voice recognition technology and techniques, and that in making its decisions in individual cases, the Home Office was entirely dependent on the information provided by ETS and there was no evidence from any ETS witness. (§ 37)

The Court concluded that there was no evidence Mr Iqbal had cheated.

But the lawfulness of the decision to detain and remove Mr Iqbal depended on whether he had been properly notified of those decisions.

Where someone is outside of the UK on the date that the Home Office apparently gives them notice of a decision to cancel their leave to remain, they cannot have been ‘notified’ as the legislation requires – “only actual service will suffice” (see §§ 45 and 46).

Because Mr Iqbal had not been served with the decisions to cancel his visa and remove him, his visa was valid at the time he was stopped and detained. Both the removal decision and his detention were therefore unlawful.

If you’d like expert advice on ETS cases or unlawful detention claims, call me on 0207 421 8000 or message me here.