Mohammad Mohibullah, R (on the application of) v The Secretary of State for the Home Department

APPENDIX 1: Ruling 04/08/16 (1) We shall deal with these two interlocutory matters in the following way. First, there is an application on behalf of the Respondent to adduce further evidence. The further evidence takes the form of a second witness statement of one of the Respondent’s deponents, Mr James Turner. It is represented to the Tribunal by Mr Kovats QC that this further evidence is designed to establish as a fact that Mr Mohibullah has previously attended a number of educational establishments which have been the subject of, inter alia , licence revocation. We refuse this application for the following reasons. (2) First of all, if this evidence had been relevant it would have had to form part of the Secretary of State’s response, ideally initially but at the latest during the several subsequent phases of these heavily case managed proceedings in the discharge of the Secretary of State’s duty of candour. Why it did not do so is not explained, adequately or at all. Second there is absolutely no evidence before us that this new evidence was taken into account by the decision maker. Third this new evidence has not been put to the Applicant Mr Mohibullah. We could, of course, devise a mechanism for dealing with this problem. The difficulty with that is that the disruption and delay which would inevitably result in these exhaustively orchestrated and now somewhat elderly proceedings, involving three conjoined cases, would be disproportionate and inimical to the overriding objective. For this combination of reasons we refuse the application. (3) Second, we rule on the Respondent’s objection to the witness statement of Ms Patel. This witness statement is dated 26 July 2016 and was served in advance of the hearing. She is a paralegal in the firm of solicitors representing the Applicant Mr Mohibullah. Her witness statement contains certain averments relating to the layout of a room in premises which are of relevance to these proceedings. Objection has been taken on the ground that this purports to be expert evidence and, secondly, has not been adduced in accordance with the requirements of evidence of that category. (4) We acknowledge firstly that the issue to which the witness statement is addressed is a relevant issue in the proceedings. Furthermore, the author of the witness statement does not have the expertise of an architect or engineer. However, evidence of this species, in our judgment, does not necessarily require expertise of this kind and the main question from our perspective will be the weight to be attached to it. We take into account further that these are public law proceedings, there is no prejudice to the Respondent and no suggestion of inappropriate timing, ambush or being taken by surprise. (5) We shall admit this evidence and, in due course, shall form a view on the weight, if any, which it merits. APPENDIX 2: Ruling 05/08/16 (1) There has been much pre-trial activity in these combined proceedings. Today’s application has as its main focus the issue of disclosure of documents from both the Secretary of State and also ETS, the interested party whose activities form an important part of the factual framework. At this stage of the combined hearing, namely at the beginning of the hearing of the two conjoined judicial review applications, we are required to rule on a discrete issue relating to the reception of oral evidence. (2) The origins of this issue can be traced to the order of Mr Justice Green in the High Court dated 21 March 2016. His Lordship ordered, inter alia , in paragraph 3 that the parties shall prepare for the final hearing on the basis that there will be oral evidence and cross-examination of the Applicant, Mr Gardner, Roxanna Cram and Bernard Evans, while it should be a matter for the trial Judge whether such oral evidence is required. (3) This wise and pragmatic order has had the consequence that we are in a position to deal with the question of the reception of oral evidence without any unwelcome obstruction of or delay in the transaction of this hearing . (4) The reception of oral evidence in judicial review is undoubtedly a comparatively unusual occurrence, just as an application for permission to cross-examine any party or witness. These are, however, unusual proceedings. Furthermore, as a matter of general principle it may be said that in the contemporary world of judicial review the reception of oral evidence and the phenomenon of cross-examination are likely to be approached a little more broadly and flexibly than they would have been during a previous era. (5) Hence when it is stated by the Divisional Court in the case of Harris (at pages 596 to 597) that the principles for the reception of oral evidence in judicial review are “the following” (and the relevant passage then ensues) we incline to construe this passage as rehearsing applicable principles which were not necessarily intended to be exhaustive and indeed do not have that effect. (6) We have considered the written submission of Mr Armstrong on behalf of the applicant Mohammad Mohibullah and the helpful response of Mr Kovats on behalf of the Respondent. These challenges have been organic. The organic dimension of these proceedings may not yet be exhausted and we are particularly conscious that this is the second set of combined hearings in this jurisdiction which are likely to have an impact on a substantial quantity of other cases. (7) Adopting this approach and bearing in mind that without the aid of a crystal ball we cannot hope to predict precisely the course which the admission of oral evidence is likely to take, we propose to accede to the application. We shall not do so in rigid terms. Any oral evidence adduced will be received de bene esse . We shall receive the evidence and in the usual way shall then decide, following such argument as may be advanced, what weight should properly and rationally be attached to it. (8) We must make abundantly clear that as in previous instances where oral evidence has been adduced in the forum of judicial review it will have a very narrow focus. Witnesses will not be giving evidence at large and in an open-ended manner and we shall identify clearly in advance of each witness testifying the proposed scope of any examination-in-chief. APPENDIX 3 Notice to the Parties (1) In apparent and purported response to the Tribunal’s Directions dated 12/10/16 [appended below], the Secretary of State’s representative has filed a written submission signed by counsel. (2) The further submission has been served out of time. It is neither preceded by the Tribunal’s permission to extend time nor accompanied by an application to extend time. (3) At [5] – [9] and [11] – [12] (second sentence) counsel purport to give evidence about certain matters. (4) In addition to [3], the further submission is accompanied by new documentary evidence which was not invited or directed by the Tribunal, is not the subject of an application for permission to adduce fresh evidence** and has not been addressed in inter – partes adversarial argument. (5) The further submission does not address issues 1(b), 3 5 or 6 in the Tribunal’s Directions. (6) The Tribunal’s embargoed judgment will be transmitted to the parties’ representatives on 24/11/16, on the usual strict terms. (7) The parties’ representatives will communicate any spelling errors, misquotes (etc) to the Tribunal by 16.00 on 28/11/16 at latest. (8) The case will be listed for handing down of judgment and determination of costs, permission to appeal and any other ancillary issue at 09.45 on 01/12/16. ** This was re-emphasised by the Tribunal during the embargoed judgment phase of communications. This stimulated an application by the Respondent to have new evidence admitted, almost four months post-hearing. At the hand down stage, Mr Thomann confirmed that he was pursuing this application “formally. Refusing the application, the Tribunal observed that it was as a minimum highly ambitious and, given its timing, was bound to fail. APPENDED: DIRECTIONS 12/10/16 The parties are invited to provide further submissions, in writing and by 28 October 2016, addressing the following issues: (1) The applicability of: (a) the Home Office guidance “Curtailment of Leave” (valid from 31 July 2014); and (b) Chapter 50 of the Home Office Enforcement Instructions and Guidance (Section 10 – “Non EEA” especially) to the impugned decision of the Secretary of State dated 18 December 2014. (2) The factual question of whether the Secretary of State’s decision maker took into account either (or both) of the above instruments, including the evidence bearing on this discrete issue. (3) The legal consequences which would flow from a finding by the Tribunal that the Secretary of State’s decision maker failed to take into account either (or both) of the above instruments. (4) The factual question of whether the Secretary of State’s decision maker was aware of, and took into account, the multiplicity of decision-making routes available in the case of the Applicant. (5) The legal consequences which would flow from a finding by the Tribunal that the Secretary of State’s decision maker failed to take into account the multiplicity of decision-making routes available. (6) Whether it is contended on behalf of the Secretary of State that the basic principles of procedural fairness did not apply to the impugned decision and the preceding decision-making process of the Secretary of State, together with any other issue, factual or legal, said to be directly related thereto. Dated: 12 October 2016 Signed: The Honourable Mr Justice McCloskey President of the Upper Tribunal Immigration and Asylum Chamber