In R (on the application of Iqbal) v Secretary of State for the Home Department [2017] EWHC 79 (Admin) the Secretary of State for the Home Department (SSHD) was found to have unlawfully detained a claimant whom they had alleged had fraudulently obtained an Educational Test Service (ETS) certificate to show that he spoke English to the level required for his immigration application.

The Home Office decided to remove him under s.10 Immigration and Asylum Act 1999.

However both these decisions were made whilst the claimant was temporarily out of the country. Nonetheless, the SSHD proceeded to detain him 2 weeks later on his return to Heathrow on the basis that they had served him with notice of their decision whilst he was out of the country.

In support of their evidence of fraud, the SSHD filed two generic witness statements which are served by them in all ETS ‘cheat’ cases. These statements commented on the extent of cheating in ETS cases that had been identified by Panorama in 2013, and that through voice recognition and a human verification process, they were able to identify impersonation.

The shortcomings of this generic evidence was highlighted by McCloskey J in SM Qadir v SSHD (ETS-Evidence-Burden of Proof) [2016] UKUT 00229 (IAC), which included the fact that neither of the witnesses had any qualifications in respect of the scientific techniques used to identify voice fraud.

Karon Monaghan QC (sitting as a Deputy High Court Judge) was informed by counsel for the SSHD that these witness statements are usually accompanied by a spreadsheet known as an ETS look up tool which states that a result is ‘invalid’ or ‘questionable’. But this spreadsheet was only made available to the judge after the hearing had concluded.

Had it been made available, the claimant would have had a right to respond, and had intended to provide evidence to show he had passed an English Speaking MBA in the UK, thereby indicating that he easily had sufficient English speaking skills to past the test, and would have had no reason to cheat.

However the judge proceeded on the basis that the spreadsheets did not form part of the SSHD evidence. Following Secretary of State for the Home Department v Shehzad & Anor [2016] EWCA Civ 615, the judge ruled that the SSHD had failed to provide evidence of a prima facie case against the claimant of cheating.

In respect of the SSHD’s decision to remove him under s.10 of the 1999 Act, the judge highlighted the need to insure actual service of the decision, which had clearly not been the case here. She quoted from the well known passage in the speeches of Lord Steyn in Anufrijeva v Secretary of State for the Home Department [2004] 1 AC 604, that

“notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he …wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system” (para 26).

The judge also agreed with the Claimant that he could not be ‘removed’ from the jurisdiction whilst being outside of the jurisdiction. She further agreed with the Claimant that the SSHD could only have prevented his entry to the UK by cancelling his leave, which would have provided him with an in country right of appeal.

The judge in turn concluded the Claimant’s detention to be unlawful.