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

THE HONOURABLE MR JUSTICE McCLOSKEY: This is a rather unorthodox application. It is unorthodox because it has been brought following the conclusion of three conjoined cases which were heard on 01, 02 and 04 August 2016. Reference to the direction which the Tribunal issued on 07 August 2016 provides the context for this unconventional application. By this application the Secretary of State seeks the permission of the Tribunal to adduce further documentary evidence. The documents are identified in the application notice. There are well established principles which govern the determination of an application of this kind. Inexhaustively and in summary, they are the following. The court must take into account inter alia whether the evidence could by reasonable diligence have been provided timeously. Next, the court must examine the explanations given for the timing of the production of the new evidence. Thirdly, the various ingredients of the overriding objective must be balanced. Fourthly, prejudice to the judicial review applicant, Mr Saha, must be taken into account. The court must also weight the mechanisms available to limit the prejudice to him. Some assessment, albeit not profound or complete, of the probative value of the new evidence is also required. These are the main ingredients in the mix in adjudicating upon this application. I accept the submission of Mr Kovats that the Applicant’s case did not crystallise fully and clearly until Mr Iqbal made his submissions towards the end of the third day of the three day hearing. The timing of this was self-evidently important. I further accept the submission that the Applicant’s case has evolved notably. Initially there was a focus on the evidence of Dr Harrison in SM and Qadir which pointed up the real risk of a false positive result of the ETS review of suspect TOEIC scores. But this faded as the proceedings evolved. It became apparent to the Tribunal during the pre-hearing review exercises that Mr Saha’s case was evolving. Ultimately a ’Position Statement’, which itself was belated, made this quite clear. While the Secretary of State’s detailed grounds of defence were unquestionably very late indeed, they could not properly have been compiled until receipt of the latter. Even then there is a detectable disharmony between this final pleading and the very focussed case which, ultimately was presented on behalf of the Applicant. In its ultimate incarnation (viz via Mr Iqbal’s submissions) the Applicant’s case had one central focus, namely the discrepancies which were clearly identifiable in the evidence adduced on behalf of the Secretary of State. The Excel sheet unambiguously made the case that Mr Saha’s leave to remain application, which was the impetus for the action taken against him, was refused on the ground that he had practised deception by the use of a proxy in undertaking his language test on 19 October 2011. This date was of not less than crucial importance for a whole host of obvious reasons. The Secretary of State now seeks to advance a different date for this critical event. This application seeks to explain a serious discrepancy and to illuminate in particular a fundamental error which is said to have occurred. These are public law proceedings. There is no lis inter-partes . It follows that the general principles which I have articulated will not be applied to this application with the full rigour which would arise in conventional private law civil litigation. I must also take into account the pace at which these proceedings have been driven by the Tribunal, in the interests of expedition and finality. Weighing all the foregoing, I have concluded that the new evidence will be admitted. I accede to the Secretary of State’s application. The consequences of this are not capable of being forecast. Appropriate directions will follow which will have the effect of restoring order and discipline to the proceedings. There has been a recent lack of order and discipline which will not be tolerated henceforth. I return to what was said by the Tribunal at the conclusion of the conjoined hearings. I made clear that judgments in embargoed form would be produced by 12 August and that today’s listing would be designed for hand-down purposes. Mr Kovats’ response to Mr Iqbal’s submission arrived (timeously) on 05 August. It was followed by the application notice which is dated 12 August. Judgment writing has been undertaken energetically, in all three cases, since the conclusion of the hearing. Regrettably, on account of the interplay of the three conjoined cases, a decision was made that we would not hand down any judgment today. But for the intervention of this application judgment would have been handed down today in the cases of Mr Saha and MA. I make clear that we have not quite got to the conclusion of the judgment in the case of Mr Mohibullah. That would have had to be delayed a little come what may. Furthermore, the holiday arrangements of his representatives and those of the judges contribute to the deferral of this judgment until early September 2016. For obvious reasons judgment will not be delivered in the case of Mr Saha and further developments will have to be awaited. This will bring me in a moment to the case of Mr MA and after I have heard from Mr De Mello and Ms Rothwell a further order will issue in that case. ORDER (i) New evidence application of the Respondent allowed. (ii) Judgment deferred. (iii) Costs submissions by 31 August 2016. (iv) Liberty to apply. Signed: The Honourable Mr Justice McCloskey President of the Upper Tribunal Immigration and Asylum Chamber Dated: 16 August 2016 APPENDIX 3 FURTHER DIRECTIONS 21/11/16 Further to The Tribunal’s Order & Directions of 07/08/16 [reproduced below] and its ruling & directions of 20/08/16 [attached] the parties shall file an agreed draft order/directions for the completion of these proceedings or, alternatively, their competing proposed draft orders by 02 December 2016 at latest. Signed: The Honourable Mr Justice McCloskey President of the Upper Tribunal Immigration and Asylum Chamber Dated: 21 November 2016