By Yang Peng
On 28 July 2023, The Administrative Court allowed a Pakistani student’s claim for judicial review of a decision by the defendant Secretary of State for the Home Department (SSHD) to cancel his leave to enter as a student. The court decided that the claimant was denied the opportunity to comment on allegations of false English language qualifications.
The judicial review related to alleged deception on the part of the claimant as to the authenticity of tests he had taken for proficiency in English required for the claimant to study at the university he was attending.
In September 2022, the claimant was granted leave to enter the UK by the Secretary of State for a three-year university course, backed by English proficiency tests and an Oxford International Education Group (OIEG) credibility interview. However, following three interviews conducted by the Heathrow Border Force desk officers upon Hazeem’s arrival to the UK, a notice was served pursuant to s120 of the Nationality, Immigration and Asylum Act 2002 advising that entry was refused.
This decision has caused a huge amount of controversy and outrage. Many were eagerly awaiting the decision in R v Secretary of State for the Home Department (SSHD), where the Court made a judgement as to whether the Secretary of State had adopted an unfair procedure.
Keep reading to learn more about the decision made by the Administrative Court.
R (on the application of Hammad Tazeem) v Secretary of State for the Home Department (SSHD)
This case concerned whether the Secretary of State had adopted an unfair procedure.
The claimant, relying on R (on the application of Balajigari) v Secretary of State for the Home Department [2019] 4 All ER 998 (Balajigari), submitted that inadequate notice had been given to him about the Secretary of State’s real concerns prior to the decision, and that, as a consequence, he had been deprived of the opportunity to face the allegations made against him in the notice. He argued that a provisional ‘minded to’ decision, with reasons, should have been made, to see whether the claimant could overcome the concerns.
The court held the following in relation to some of the arguments presented by claimants:
- Despite the facts in Balajigari being different to the facts of the present case, it did not follow that the principle enunciated by the court was any less applicable. Where something as important as a decision to cancel leave to enter was being contemplated on the assumption of falsified documentation, procedural fairness required that a very clear allegation to that effect was put. It was not enough for a passenger to be left to infer that that was the case.
- The claimant should have been given an opportunity to explain the apparent discrepancy between how he presented himself and what the documentation appeared to verify. The claimant had been deprived of any opportunity for explanation by the procedure adopted by the Secretary of State, and that rendered the decision unlawful.
The above is a summary of the court’s judgement on claimant’s ground.
The decision means that when a person is notified of an important decisions, SSHD should very clearly state the allegations as procedural justice requires. It was not enough for the individual to be left to infer that this is the case, and an opportunity should be given for him to explain.
Our comments
The findings in R (on the application of Hammad Tazeem) v SSHD shows that the Secretary of State adopted an unfair procedure after denying Tazeem leave to enter in which they didn’t provide clear allegations. The Home Secretary also failed to balance fairness with swift decision-making. This has far-reaching implications for individuals facing future allegations.
The case demonstrates that people should have the chance to explain and address allegations. A preliminary ‘minded to’ decision, with explanations, should be considered to assess if concerns can be resolved.
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