Debashis Saha & Anor, R (on the application of) v The Secretary of State for the Home Department

In a judicial review challenge founded solely on Wednesbury irrationality, the claimant must establish the elevated threshold of bare irrationality. The decision is lawful where the totality of the admissible evidence provides a rational basis for it, even if the original and review decision letters were seriously deficient.

The Executive owes a duty of candour, efficiency and good faith in judicial review. Breach threatens the rule of law and may materially affect costs. The Upper Tribunal may reflect such misconduct in its discretionary costs order, notwithstanding that the substantive claim fails.

Mr and Mrs Saha sought judicial review of the Secretary of State’s refusal of Mr Saha’s Tier 4 student application. One ground was that a TOEIC certificate had been obtained through deception, engaging paragraph 322(2) of the Immigration Rules. The other refusal grounds were not challenged.

Permission was initially refused on the papers but granted on renewal. The proceedings were heard with two related TOEIC cases. After the principal hearing, the Secretary of State sought to introduce further evidence concerning two TOEIC speaking and writing tests. The Tribunal admitted it and reconvened to scrutinise it.

The central issue was whether the Secretary of State’s assessment that a proxy had taken Mr Saha’s speaking test was irrational in the Wednesbury sense.

1. The judicial review application was dismissed. This was a supervisory public-law challenge, not a statutory appeal requiring the Tribunal to determine as fact whether Mr Saha had taken the test. The sole pleaded vice was bare Wednesbury irrationality. That is an elevated threshold: the decision must be perverse or absurd, such that the only rational course was a favourable decision for the claimant.

2. The original refusal letter and the later review letter were of extremely poor quality. They obscured rather than explained the relevant evidence, omitted key documents and contained an erroneous year. In a context carrying serious consequences for an allegation of deception, they fell below the required standards of care, professionalism and attention.

3. Those defects did not establish irrationality once the Tribunal considered all admissible evidence. The later evidence established that Mr Saha had undertaken two speaking and writing tests at Elizabeth College; ETS had assessed both as invalid; the recordings attributed to those tests were not his voice; and there was evidence of widespread abuse at the relevant test centre. The Tribunal accepted the essential tenets of Mr Sewell’s evidence. The totality of the evidence therefore supplied a demonstrably rational basis for the Secretary of State’s decisions.

4. The Tribunal stressed that the Executive’s duty of candour in judicial review is fundamental to the rule of law. Its late and unauthorised production of evidence, and its wider conduct of the case, caused avoidable cost, delay and complexity. The Secretary of State was ordered to pay the Applicants’ costs incurred up to and including 16 August 2016. The later costs were left where they fell.

• Upper Tribunal (Immigration and Asylum Chamber): permission to apply for judicial review was initially refused on the papers on 11 January 2016, but granted after an oral renewal hearing by Upper Tribunal Judge Allen on 21 April 2016.
• Upper Tribunal (Immigration and Asylum Chamber): the substantive judicial review claim was dismissed in this judgment. Permission to appeal was refused.