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15 APR 2013

R (on the application of Shaw and Another) v Secretary of State for the Home Department [2013] EWHC 42 (Admin); (2013) PLLR 017

Immigration - Detention - Right to legal advice - Removal - False imprisonment

The failure to provide the Claimants with the opportunity to take legal advice prior to their removal to Jamaica rendered the removal directions unlawful. Damages were therefore awarded for false imprisonment during the return flight to Jamaica.

18 January 2013

Administrative Court

Clive Lewis QC

(1)        This claim concerned the Defendant's decision to cancel the Claimants' leave to remain, requiring their return to Jamaica. The Claimants sought damages for unlawful detention and a breach of their Article 8 ECHR rights.

(2)        The principal grounds advanced by the Claimants in alleging that the decisions to cancel and refuse them leave to remain and remove them were unlawful were:

(a)        they had an in-country right of appeal, which due to their removal, they were unable to exercise;

(b)        their written notice of decisions did not include a statement of whether they could appeal and on what grounds;

(c)        cancellation of their leave was not authorised, as required by the Defendant's policy (chapter 1 of section 9 of the Immigration Directorates Instructions), by a chief immigration officer;

(d)        the decision was irrational;

(e)        the Defendant failed to have regard to the best interests of the second Claimant (a child), as required by section 55 of the Borders, Citizenship and Immigration Act 2009;

(f)        the issuing of removal directions without giving the Claimants the time to take legal advice was contrary to the Defendant's policy;

(g)        removal breached the Claimants' Article 8 ECHR rights, as it was disproportionate in all the circumstances, and the directions for removal had been invalid.

(3)        The Claimants later added a further ground, submitting that their Article 6 ECHR rights had been breached as they had been removed before a proper determination of their civil rights was permitted.

(4)        HELD: The Court, looking at the decision letters, held that the reason leave to remain had been cancelled was due to the first Claimant's purpose in the UK being different to that specified in her entry clearance. The first Claimant was found to have been acting outside the scope of her leave to remain, and was not studying, but working. This had been made clear in the notice given to the Claimants. The Defendant's decision was therefore held to be neither irrational nor unreasonable.

(5)        Given this, the Claimants' rights to appeal were limited, and could only be exercised from outside the UK. The cancellation of leave, the refusal of leave to enter and the removal directions that the Defendant had decided upon were therefore not flawed, and the Claimants had no in-country right of appeal.

(6)        The Claimants' contention that a chief immigration officer had not authorised the cancellation of the leave was incorrect: the notes referred to a chief immigration officer and inspector authorising the refusal decision.

(7)        The immigration officers had also considered the age of the second Claimant and his dependence upon his mother. The Court inferred from the notices given to the Claimants that his best interests and welfare had been considered, and were deemed best served by his returning to Jamaica.

(8)        The Claimants were also found to have failed to demonstrate that the Defendant's policy required them to be given 72 hours notice prior to removal.

(9)        On the facts however, the Court was satisfied that the Claimants should have been given access to justice under common law by being given the opportunity to take legal advice before removal. The Court could not see why, since the Claimants had been previously temporarily admitted to the UK, they could not have been given time to seek legal advice before removal. The failure to give them this time rendered the removal directions unlawful.

(10)     The Claimants' removal to Jamaica was held to constitute an interference with their private life in the UK, contrary to article 8 ECHR, but this served a legitimate aim, and was proportionate in all the circumstances. The Court would therefore only accept that removal was in breach of Article 8 in so far as the Claimants were not given access to legal advice.

(11)     There was held to be no basis for a contention that there had been a breach of Article 6 ECHR.

(12)     As the removal directions were held to be unlawful, the period following their being given, during which the Claimants were detained on a flight to Jamaica against their will, was held to constitute false imprisonment. For approximately 10 hours of detention, each Claimant was awarded £2,000.

Claim succeeded in part.

Key paragraphs

[30] - Reason leave cancelled.

[32] - Only out of country right of appeal.

[34] - Chief immigration officer.

[35] - Not irrational or unreasonable.

[36] - Best interests.

[37] - 72 hours notice.

[39] - Access to justice/legal advice. 

[40] - Interference with article 8 rights proportionate. 

[41] - Article 6.

[43] - False imprisonment & damages.

[47] - Conclusion.

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