Ullah, R (on the application of) v Secretary of State for the Home Department

In judicial review proceedings challenging a person’s categorisation as an illegal entrant, the Secretary of State bears the burden of proving the relevant deception to a high degree of probability. Article 6(3)(d) does not apply merely because the same conduct may also constitute a criminal offence. The proceedings must themselves be criminal in nature and involve a penalty of the kind contemplated by Article 6. Immigration detention or interference with liberty for administrative enforcement purposes is not, without more, punishment. Cross-examination is exceptional in judicial review proceedings, including cases involving precedent fact. The court must assess the evidence as a whole and may find the burden discharged by contemporaneous documents and surrounding circumstances despite the absence of oral evidence from a material witness.

The claimant entered the United Kingdom as a foreign spouse in 1994. The Secretary of State later concluded that he had obtained leave to enter by deceiving the Entry Clearance Officer about whether his marriage was genuine and subsisting, making him an illegal entrant under the Immigration Act 1971. The claimant challenged a later decision maintaining that conclusion.

He argued that the proceedings were unfair because they relied on documentary material from his former wife without a witness statement or cross-examination, contrary to Article 6. He also argued that the Secretary of State had failed to prove deception to the requisite standard. Permission had initially been refused by Richards J for delay, but Schiemann LJ granted permission and remitted the matter for hearing.

1. Application dismissed. The Secretary of State had established to the requisite high degree of probability that the claimant obtained leave to enter by falsely representing that his marriage was genuine and subsisting.

2. The Article 6(3)(d) challenge failed. Although deception in obtaining entry may also constitute an offence under section 26(1)(c) of the Immigration Act 1971, these judicial review proceedings were not criminal in nature. Applying the criteria identified in Engel v The Netherlands 1 EHRR 647, the proceedings did not involve examination of criminal liability or punishment. Detention or interference with liberty for immigration administration and enforcement was not punishment in the relevant sense, consistently with R (on the application of West) v The Parole Board [2003] 1 WLR 705.

3. The general fairness challenge under Article 6(1) and common law also failed. Cross-examination may be permitted or required in judicial review, particularly in cases concerning precedent fact, but it remains exceptional. The absence of a witness statement from, and cross-examination of, the claimant’s former wife did not make the proceedings unfair.

4. Following Khawaja v Secretary of State for the Home Department [1994] AC 74, the Secretary of State bore the burden of proving illegal entry to a high degree of probability. That burden was discharged. Particular weight was attached to the former wife’s letter written immediately after the visa was issued and to her divorce petition. The claimant’s account was inconsistent with those contemporaneous documents.

5. Permission to appeal was refused because the proposed grounds concerned only the unsuccessful fairness challenge and had no real prospect of success. The claimant remained at liberty to seek permission from the Court of Appeal.

• High Court (Administrative Court): Richards J refused permission to apply for judicial review on 10 April 2001, principally for delay. Schiemann LJ subsequently granted permission and remitted the claim for hearing. The present court dismissed the claim.