09 OCT 2014
SA v Secretary of State for the Home Department  EWHC 2570 (Admin); (2014) PLLR 098
Queen’s Bench Division, Administrative Court, Thornton J
30 July 2014
The claimant recovered substantial damages after the court’s finding that she had been subjected to malicious and deliberate unlawful conduct by the defendant.
(1) The claimant, an Indian national, seeks declarations that she was falsely imprisoned and unlawfully detained by the defendant between 23 and 28 May 2011 and was the victim of malicious and deliberate unlawful conduct by at least one immigration officer and one chief immigration officer which caused or was directly related to that detention and which amounted to an infringement of her rights under articles 5, 8 and 14 of the European Convention on Human Rights. She also claims general, aggravated and exemplary damages for false imprisonment and unlawful detention, damages under section 6 of the Human Rights Act for breaches of her ECHR rights and declarations connected with these claims.
(2) The claimant, her husband and two children, are all Indian nationals and permanent residents of India. She applied for leave to enter as a visitor for six months from an Entry Clearance Officer in Mumbai, with the stated purpose of seeing family members resident in the UK. She intended to stay for three months.
(3) Her initial application was refused on 18 August 2010 due to insufficient evidence of her financial means. The claimant successfully appealed this decision to an FTT in London, with the decision coming on 11 March 2011. The FTT found that while the refusal was correct because the claimant had not shown an adequate basis to support herself during the trip, the decision-maker had failed to consider the alternate basis that her sponsor would provide for her. The claimant received entry clearance, and booked a flight which would see her arrive at Heathrow on 23 May 2011 and return on 3 October 2011. Her husband and children were not travelling with her.
(4) The claimant was stopped at Heathrow following a preliminary checkpoint interview. The claimant is recorded as making statements that while in the UK, she would help her sister sew curtains and would be paid for doing so. The claimant had also increased the length of her visit from her initially stated 3 months to 5 months.
(5) There was conflicting evidence in the record as to which immigration officer had conducted the interview. The initial interview was conducted in Hindi with an immigration officer rather than an interpreter; the claimant’s mother tongue is Gujarati and she speaks little Hindi. The claimant was not allowed to contact her brother during her preliminary interview, and the defendant offered no reasons as to why.
(6) After the short preliminary interview, the immigration officer decided to suspend the claimant’s leave to remain and detain her temporarily for further questioning. The claimant states that she was subject to 5-6 more interviews on the evening of 23 May 2011, where she was repeatedly asked the same questions about her intention to work in the UK, which she consistently denied. She states that she was shouted at and bullied. These interviews were not documented by the defendant.
(7) The claimant’s temporary detention was converted into immigration detention on the grounds that she intended to work in the UK, and the setting of removal instructions for the claimant.
(8) The claimant’s 24-hour review of her detention was carried out immediately after the authorisation of her removal, and was conducted by the same team which had authorised her detention and removal.
(9) With the assistance of her family, the claimant lodged judicial review proceedings on 26 May 2011.
(10) On 28 May 2011, a reviewing Chief Immigration Officer withdrew the refusal decision, stating that he would reconsider the decision with the view of replacing it with a fresh decision based on change of circumstances. He did not reconsider within the allotted 24 hours, so the decision stood. The claimant was released with temporary admission to the UK. The claimant was not informed of the withdrawal of the earlier decision or served with a copy of it.
(11) The claimant’s second appeal was initiated on 1 June 2011 as an in-time appeal on human rights grounds, on the assumption that the 24 May 2011 decision remained in place, as the withdrawal had not been served on her.
(12) The second FTT appeal hearing set out its decision on 5 July 2011. The Tribunal found that the pending decisions had been withdrawn, and that the defendant should take immediate steps to regularize the claimant’s status.
(13) The defendant failed to comply with this order, and instead applied for an extension to respond, serving her explanatory statement was served at the outset of the hearing on 8 August along with a defence denying all claims and justifying the claimant’s detention.
(14) The Chief Immigration Officer who withdrew the refusal gave a fresh decision on 8 August 2011, stating that the case had been reconsidered and the previous decision had been overtaken by a new decision. The FTT found that the claimant had an alternative right of appeal so the JR was considered academic.
(15) On 5 October, the claimant made a 3rd appeal to the FTT. SSHD had chosen to be unrepresented, so judge adjourned at the initial hearing, and continued to have difficulties with the defendant’s cooperation at a second hearing. The FTT gave its decision on 24 January 2012, finding that claimant had not made the statements attributed to her which justified her initial detention, and that the defendant had been aware of the immigration officer’s credibility as an issue but had not tendered him for cross-x or served a statement. The claimant was given leave to enter and neither a change of purpose nor changed circumstances had occurred.
(16) The defendant applied for permission to appeal this decision, but was refused on the ground that the appeal was unarguable.
(17) On 11 March 2012, the claimant served a detailed statement alleging grossly abusive conduct.
(18) On 14 March 2012, the claimant was granted permission to apply for judicial review.
(19) On 14 March 2012, the defendant granted the claimant leave to enter for 6 months with her passport suitably stamped. The defendant had been retaining the passport on the grounds that until permission to apply for judicial review was granted, the claimant was liable to be removed.
(20) Shortly thereafter, she flew home to her children.
(21) The claimant’s principle allegations are: that her leave to enter the UK was unlawfully suspended and then unlawfully cancelled, she was unlawfully refused entry to the UK, was unlawfully temporarily detained pending further investigations and a further interview and then unlawfully detained pending her removal. She was also the subject of subsequent unlawful decisions taken by Border Force and the UKBA with the authority of the SSHD on 24 May 2011 (the 24-hour review), 25 May 2011 (the refusal to withdraw the cancellation and refusal decisions) and 28 May 2011 (the withdrawal of the cancellation and refusal decisions), 25 June 2011 (the issue of the explanatory statement), 8 August 2011 (the change of circumstances decision) and 1 October 2011 (the reissue of the explanatory statement). These decisions were all taken unlawfully, maliciously and knowingly without cause on the basis of concocted evidence and without justification.
(22) As a result of this series of unlawful acts and omissions, the claimant was unlawfully detained between 23 and 28 May 2011, was subjected to bullying and harassing conduct in detention, had her passport unlawfully impounded from 23 May 2011 until 16 March 2012 and was unlawfully released on temporary admission between 29 May 2011 until 16 March 2012 despite having an entitlement of leave to enter.
(23) The claimant was then harassed by a series of unlawful acts and omissions whilst conducting two successive First-tier Tribunal appeals and this judicial review. These three pieces of litigation were directly concerned with her unlawful detention and the other related unlawful decisions. She was unable to leave the UK for 5 months after the termination of her original leave to enter had expired due to that harassing conduct, the need to remain in the UK whilst her FTT appeals and her application for permission to apply for judicial review were pending and the impounding of her passport.
(24) For this series of unlawful acts and omissions, the claimant seeks general, aggravated and exemplary damages for her unlawful detention, for the direct consequences of that unlawful detention and under the HRA for various breaches of the ECHR.
(25) The defendant disputed the allegations but took no part in the FTT appeals and failed to address the substance of the allegations in its summary or detailed grounds of defence, only belatedly serving limited evidence.
(26) HELD: The court found that the various decisions relating to the claimant’s immigration status listed above were unlawful as being ultra vires, taken for an ulterior purpose, unreasonable, irrational and taken without taking all relevant factors into account and wrongly taking irrelevant or non-existence factors into account. The court further found that her detention was unlawful for the same reasons, leading to breaches of Articles 5, 8 and 14 of the ECHR. Her claims in damages also succeeded, and the claimant was awarded £110,000 in general and aggravated damages and as damages under the HRA, and a further £15,000 in exemplary damages.
(27) The court concluded that all of the claimant’s factual allegations are correct. The claimant had no intention of helping her sister sew curtains or taking paid employment for doing so, and she denied this consistently throughout her interviews. The claimant never made any of the core admissions used to justify her detention, and the immigration officer falsely recorded these statements. The claimant was bullied, frightened and cajoled for the purpose of getting her to make the statements previously recorded by the immigration officer.
(28) The court made a number of findings in reaching this decision, which are summarised below.
(29) Estoppel: The claimant argued that the defendant had been estopped from challenging her case because of the FTT’s finding in its third appeal decision that she had not intended to seek employment. The court rejected this claim on the grounds that the issues were not exactly the same and that the issue relied upon for estoppel had been first determined in a tribunal, while the present case was in the High Court. However, the defendant did not attempt to establish that the FTT’s finding had been wrong, so the factual finding stood.
(30) ‘Employment’: The court found that ‘employment,’ as used in the Immigration Rules, follows a common sense definition, and would need to involve a hierarchical relationship in which one person carried out defined work tasked by another. The claimant’s visa merely stated that she could not undertake ‘work’. The defendant’s agents shifted the statement that the claimant intended to ‘help’ her sister to the finding that she intended to undertake work and finally employment, where it seemed unlikely that she was undertaking any ‘employment’ for the purposes of the Immigration Rules.
(31) Initial detention: The court found that claimant’s temporary detention was unlawful for a number of reasons:
(1) it was being exercised for the unlawful purpose of bullying the claimant into changing her statements about her purpose for entering the UK;
(2) there was no evidence that she would abscond if asked to remain for further interview or fail to cooperate;
(3) there was no evidence that she would breach any of the terms of her visa; and
(4) the final decision as to whether to cancel the claimant’s visa could be taken quickly, as her brother was waiting at the airport and was available for immediate questioning, the FTT records were accessible and an interpreter could be arranged by telephone.
The court found the detention was ultra vires, unlawful, irrational, unreasonable, based on extraneous consideration and in breach of the defendant’s policies concerning administrative detention.
(32) Due to severe problems with the credibility of the immigration officer, the court found that the interview notes were not a contemporary record of the interview and the statement that the claimant might take paid employment was an invention.
(33) The defendant failed to disclose logs showing discrepancies in the evidence and the immigration officer’s false reference to other immigration officers being present in his explanatory statement. The court found that the non-disclosure was itself of evidential value, as these documents were clearly highly relevant, had clearly existed, and were likely to still be in existence: it was unlikely to have been accidental or innocent oversight.
(34) The evidence from the checkpoint interview that the claimant had extended her stay within the permissible window and her statements did not justify a conclusion that she was taking employment. Evidence suggests that the Immigration Officer placed no weight on the fact that she had obtained her visa after an appeal to the FTT. The decision to detain the claimant was taken solely to question her further and force her to admit she was unlawfully entering the country.
(35) The CIO also made a fundamental error in failing to provide the claimant with a temporary detention notice to sign.
(36) Further interview: The court found evidence of similar treatment at the further interview, as well as finding that the decision that she had made admissions about seeking employment while in the UK were based on unlawful and concocted evidence obtained by the principal decision-maker.
(37) 24-hour review: The 24-hour review of the claimant’s detention was unlawful on the grounds that it was undertaken prematurely, at the same time as taking the decision to detain the claimant. This was done for the purpose of precluding an independent review by an officer in a different unit.
(38) Refusal to review: The court found that the defendant’s refusal to review the claimant’s detention at the request of her solicitors, coupled with a false entry on a minute sheet stating that this had occurred, was an attempt to mislead the claimant in hopes that her complaints would disappear.
(39) Withdrawal of refusal decision: The court found that the 28 May 2011 decision to withdraw the cancellation of leave was lawful, given the Chief Immigration Officer’s doubts about what the claimant had actually stated at her initial interview. However, the immigration officer acted unlawfully in failing to issue a formal decision or notify the claimant that he had withdrawn the earlier decision. The claimant should have been granted leave to enter at this time as she was no longer liable to be removed. She should not have been discharged from detention with temporary admission, or had any temporary leave replaced by 30 May at the latest. The court also took issue with the Chief Immigration Officer’s statement that he reconsidered the first decision in light of the effect of public costs of the claimant’s judicial review claim. The court found that such issues should take no part in his decision, and that he gave no lawful grounds for substituting the original decision with the change of circumstances decision as he did.
(40) Passport: The claimant’s passport was also unlawfully detained after the 28 May 2011 decision until 14 March 2012, preventing her return home. The defendant retained the passport even after the third appeal decision to the FTT unequivocally confirmed that the claimant’s leave to enter remained in place.
(41) Second FTT appeal: The court found the defendant took an unlawful inaction by failing to serve the claimant with leave to enter or giving her notification of the withdrawal of the cancellation of her leave to enter after the second FTT appeal decision on 5 July 2011.
(42) ‘Fresh’ decision, 8 August 2011: The 8 August 2011 decision was unlawful since it purported to refuse the claimant leave to remain on the grounds of change of circumstances since she was given leave to enter. The alleged change of circumstances had previously been the subject of a refusal that had been withdrawn. The defendant could have only made a finding on circumstances that had changed after her 28 May 2011 leave to enter. The decision was also taken for the purpose of avoiding an adverse decision in the ongoing judicial review proceedings rather than due to an actual change of circumstances, and the decision-maker should have been aware that the claimant’s circumstances had not changed.
(43) Second FTT Appeal, second hearing: The court found that the defendant’s agents took steps to mislead the FTT in relation to the decision of 8 August 2011, issuing a misleading explanatory statement and failing to participate in the hearing. The Chief Immigration Officer who authorised the withdrawal gave clearly misleading evidence coupled with a fresh decision in the claimant’s case. These actions were taken for the purpose of limiting the claimant’s right of appeal and covering up unlawful decisions.
(44) Third FTT appeal: the defendant continued to rely upon false representations and failed to cooperate during this appeal, continuing to rely on the explanatory statement.
(45) The court found the following breaches of the ECHR: Article 5 was breached through the claimant’s unlawful detention, causing her considerable distress, stress and anxiety. Her detention was a flagrant breach of her right only to be detained lawfully and for reasonable cause.
(46) Article 8: The claimant’s right to respect for her private life was interfered with through the series of unlawful actions. She was harassed, her visit to her parents and siblings was interfered with, as was their family life with her. Her enforced absence from her husband and two children constituted a severe interference with her family life.
(47) Article 14: The absence of any facilities to tape record or digitally record the claimant’s further interviews in custody constituted an additional breach of Article 14 as a failure to uphold PACE procedures.
(48) On the question of costs, the court did not find the defendant’s contention that the claimant had not particularised her ECHR claims to be justified. The court also rejected the defendant’s contention that the claimant’s damages must be limited to her time in detention, and that damages related to detention do not fall within the HRA. The claimant had filed her grounds quickly, and had developed them as further unlawful actions took place. The claims are all based on the unlawful course of conduct, and the defendant’s failure to engage with her case until the substantive hearing does not detract from her fully explained complaints.
(49) The court found there was an overlap between various heads of damages and took action to prevent double-recovery. The court found that the length of detention was short, but the nature of the breaches and unlawful acts giving rise to detention, the lack of excuse, the continuing cover-up, the blamelessness of the claimant, and the serious consequences of the case point to an increased award. The court awarded £20,000 in general damages and £30,000 in aggravated damages. The court awarded a total of £20,000 in special damages relating to the irrecoverable legal costs incurred in the two FTT appeals.
(50) Considering the claimant’s entitlement to damages under section 6 of the HRA, the court found that the concoction of evidence by the immigration officer leading to the claimant’s detention gave rise to additional damages under article 5. The court found that, had the claimant’s further interviews been recorded, it was unlikely that further unlawful conduct would have occurred, leading to additional damages under article 14. The court awarded the claimant £20,000 for interference with her family life, £10,000 for interference with her private life, £7,000 for interference with her article 5 rights, and £3,000 for interference with her article 14 right. The court considered that these were not overlapping.
(51) The court awarded an additional £15,000 in exemplary damages for the particularly oppressive and arbitrary conduct of the immigration officer and chief immigration officer.
(52) The court found the claimant was entitled to the costs of judicial review on an indemnity basis.
 – Entering UK for a different purpose
 – Discrepancies in evidence
 - Discrepancies in evidence
 – Author of evidence
 – Reliability of notes
 – Temporary detention notices
 – Contemporary record and fabrications
 – Failure to follow the Border Force Operations Manual
 – Foundation of case
 – Defects in the IS 82A form
 – Premature 24-hour detention review
 – Inaccuracies in explanatory statement
 – Inaccuracies in statement
 – Explanatory statement
 – Errors and omissions in the explanatory statement
- – Errors in second refusal decision
 – First Tier Tribunal decision in errors
 – Definition of employment
- – Change in circumstances
 – Issue estoppel and abuse of process
 – Temporary admission
 – Disclosure
 – Withdrawal of cancellation of leave
 – Formal decisions and notification
 – Change of circumstances
 – Decision given on false grounds
 – No basis for decision
 – Impounding of passport
- – Unlawful detention
 – Deliberate withholding of documents
 – Credibility of witnesses
 – Concocted evidence
 – 24-hour review
 – Refusal of request to review decisions
 – Withdrawal of cancellation of leave
 – Withdrawal of cancellation of leave
 – Acknowledgement of service
 – Fresh decision
 – Misleading the FTT
 – Core findings of fact
 – Decisions
 – Unlawful detention
 – Breaches of the ECHR
 – Particularised claims under ECHR
 – Claims arising out of a course of conduct
 – Inter-relationship of damages
- – General and aggravated damages
- – Special damages
 – Damages under HRA article 5
 – Damages under HRA article 14
- – Damages under HRA
 – Exemplary damages
 - Declarations
 – Costs of judicial review
- – Conclusion