A student whose leave was cancelled on arrival was wrongly denied the opportunity to comment on an allegation of falsified English language qualifications. So held the High Court in R (on the application of Tazeem) v Secretary of State for the Home Department [2023] EWHC 1828 (Admin), a case addressing the need for procedural fairness at the UK border.

The facts

Mr Tazeem had been granted a visa to study a bachelor’s degree in the UK. He had shown his university the results of two language tests taken in Pakistan in order to prove that his English was good enough to follow the course. Despite this, an immigration officer who briefly questioned him when he arrived in the UK was concerned that his English wasn’t good enough. He was therefore detained for further investigation.

Mr Tazeem was then interviewed by another immigration officer. At his request, an Urdu interpreter was provided. He was asked 25 questions about his course and about an English test he had taken a few months earlier. The officer considered that Mr Tazeem’s English proficiency was lower than he had claimed in his application. He therefore decided to cancel Mr Tazeem’s leave to enter.

The notice of decision highlighted Mr Tazeem’s inability to give the correct title of his degree course or answer basic questions about it in interview. It also said that he had not shown an ability to speak ‘basic English’ and expressed ‘doubts about the authenticity of the [English] tests’. This was the first time such an allegation had been made.

Procedural unfairness

Mr Tazeem argued that the decision-making process was unfair because he hadn’t been told in interview that he was suspected of using falsified qualifications. He’d therefore had no chance to respond to the allegation before his leave was cancelled.

Deputy High Court Judge Tim Smith accepted this argument. He referred to Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673. In that case, the Court of Appeal held that the Home Office can’t refuse an application on grounds of dishonesty without first notifying the person of their concerns and giving them a chance to respond. This is known as a ‘minded to’ process.

Although Balajigari was about applications for leave to remain, the same principle applied to Mr Tazeem. In fact, the Home Office’s own guidance to immigration officers said that they should give a ‘Minded to Refuse/Cancel notification’ in interview if they suspected deception. That hadn’t been done. The judge rejected the Home Office’s argument that Mr Tazeem could have drawn an inference from the questions in interview; a ‘very clear allegation’ had to be made.

The judge also rejected the Home Office’s ‘bold submission’ that no ‘minded to’ process was needed because nothing Mr Tazeem said could have made any difference:

{Counsel for the Home Office} asks the rhetorical question: what more could the Claimant have done to explain the situation had he been given the opportunity? Nobody knows. It may be that given the opportunity it emerges that he can offer no satisfactory explanation after all and that suspicions of false documentation were reinforced rather than dispelled. The same outcome would then be reached. But at this time it is inappropriate to speculate: the Claimant has been deprived of any opportunity for explanation by the procedure adopted by the Defendant, and in my judgment that renders the decision unlawful.

Mr Tazeem therefore won his judicial review on this ground. It didn’t follow, however, that his detention at the airport was unlawful. The Home Office was entitled to detain him to examine his circumstances, and that, the judge held, was what it had done.

Irrationality

Mr Tazeem also argued that the immigration officer’s decision to cancel his leave was irrational even on the evidence that was available. He argued that the officer didn’t have the necessary expertise to form a reliable judgment about his level of English. He also criticised reliance on interview questions that expected him to define the abstract concepts of ‘business’ and ‘management’.

The judge disagreed. No special training was needed, he held, to recognise that someone can ‘barely converse’ in English. Nor was it unreasonable to expect someone studying business and management to explain what that meant. The decision to cancel his leave had been open to the officer on the evidence he had. The problem was that without putting the central allegation to Mr Tazeem, the evidence was incomplete.

Comment

As Mr Tazeem won on the procedural fairness ground, the Home Office will likely need to reconsider the decision to cancel his leave. If dishonesty is still suspected, he will face a further interview or a written ‘minded to’ process in which the allegation is expressly put to him for a response.

Immigration Officers have wide powers under Schedule 2 to the Immigration Act 1971. There must be a limit on the enquiries they are expected to make of someone arriving at the border. This judgment is a welcome reminder, however, that procedural fairness is mandatory even in the pressured environment of an airport holding room. A balance must be struck, the judge said, between the interests of fairness and the benefits of swift decision-making.

Separately, the decision is notable for the judge’s recognition that someone might reasonably request an interpreter even if they speak English:

When it became apparent after the first interview that there was real jeopardy for the Claimant it is hardly surprising that he elected to conduct the future interviews in his mother tongue rather than in English. He was no doubt anxious to ensure that he did not misunderstand any vital detail and that he was able to get across his point of view very clearly. I also do not find this to be inconsistent with the Claimant’s stated preference on his visa application form to converse in English. In answering that question he may well not have anticipated having to converse in a second language on a matter of critical importance in circumstances of extreme anxiety compounded by fatigue from a long journey.

The point that your English might be fine in some contexts but not in others is also made in the Equal Treatment Bench Book. It may seem like common sense, but it continues to escape some people in the immigration field. This passage provides a useful response.