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

A decision under section 10 of the Immigration and Asylum Act 1999 has no adverse effect on existing leave until the person is actually notified. Constructive or deemed service under the Immigration (Notices) Regulations 2003 is insufficient. A notification made while the person is outside the United Kingdom cannot operate to invalidate leave or support removal on return. The court must itself determine the precedent fact on which section 10 depends, namely whether the person used deception in seeking leave to remain. Generic evidence of widespread testing fraud does not establish that an individual used deception without evidence linking that individual to an invalidated test. Where the section 10 decision lacks a lawful basis, detention founded on that decision is unlawful.

The claimant, a Tier 2 (General) Migrant, returned to the United Kingdom from Pakistan and was refused entry and detained. The Secretary of State relied on a decision under section 10 of the Immigration and Asylum Act 1999, alleging that the claimant had used a proxy to obtain an ETS English-language test certificate in an earlier application.

The section 10 notice was delivered to the claimant’s United Kingdom address after he had left the country. The Secretary of State later withdrew the decision but continued to assert that the decisions and detention had been lawful. The claimant challenged the lawfulness of the detention, raising notification, the effect of being outside the United Kingdom, and whether deception had been proved. The central questions were whether the section 10 decision invalidated the claimant’s existing leave and whether there was sufficient evidence to support it.

1. Notification. The claimant’s leave remained extant under article 13 of the Immigration (Leave to Enter and Remain) Order 2000. Section 10(8) of the Immigration and Asylum Act 1999 required actual notification before the leave could be invalidated. The Immigration (Notices) Regulations 2003 principally addressed notification of appealable decisions and did not displace that requirement. Delivery of the notice after the claimant had left the United Kingdom therefore did not invalidate his leave.
2. Operation of section 10. A person cannot be removed under section 10(1) while outside the United Kingdom. The Secretary of State could instead use paragraph 321A of the Immigration Rules to cancel leave, with the applicable appeal consequences.
3. Precedent fact. The court rejected the submission that review was confined to Wednesbury unreasonableness. It had to determine for itself whether deception had been proved. The Secretary of State bore the initial evidential burden. The generic statements concerning widespread ETS fraud showed no more than general fraud and did not link the claimant to an invalidated test.
4. Late evidence. The proposed ETS Lookup Tool extract was disclosed only on the eve of the hearing, was not properly before the court, and was tendered without adequate explanation. Admission would have prejudiced the claimant, who would have required an opportunity to adduce rebuttal evidence. The application to admit it was refused.
5. Disposition. The detention from 10 to 12 February 2015 was unlawful because the claimant had not been effectively notified, notification while he was abroad could not operate, and there was no evidence that he had used deception. The claim was transferred to the Queen’s Bench Division for assessment of damages.