Monica Duggal v Secretary of State for The Home Department

Folios

,522 Words

On the evening of Monday, 26 January 2009 the claimant, Monica Duggal, arrived at Heathrow Airport from India intending to travel straight on to the Republic of Ireland. She was not permitted to do so. Removal directions were given the following day for her return to India. Her solicitors issued an application for judicial review and her removal was suspended by the Secretary of State, the defendant.

The claimant seeks a declaration that she was unlawfully detained by the immigration authorities for six days until Sunday, 1 February 2009. She also claims damages for that alleged unlawful detention.

To preserve her position pending the judicial review application, the claimant had been granted temporary admission to the United Kingdom on strict conditions. Consequently, there was no remaining public law element to the claim, permission was granted by Urwin J on 14 September 2009 with an indication that for this reason the matter was suitable for transfer to the Queen's Bench Division. The case was duly so transferred for determination of the claimant's private law claim for a declaration and damages.

At the trial of this matter I heard extensive oral evidence from the claimant, from her husband and from her solicitor, from the two immigration officers who made the relevant decisions and from an inspector in the immigration service as to certain aspects of practice.

The factual issues proved to be more complex and intricate than had been anticipated. I have had the advantage of very full written submissions, both in opening and in closing, from Professor Rees, counsel for the applicant, and from Ms Busch, counsel for the defendant. Professor Rees came into the case very late and has grappled manfully with the somewhat unusual issues which the case has raised. I am grateful to both counsel for the thoroughness of their presentation, both in writing and orally.

At the outset of the hearing in opening submissions, we took time to identify step by step the relevant stages of the immigration officer's decision making process in order to focus on the relevant factual issues in the oral evidence. Before identifying the issues which it is agreed fall to be decided, it is necessary to outline the factual background.

The Factual Background

The claimant, aged 31, is an Indian national. She was formerly married in India and has a daughter by that marriage who is now aged 11 years, very nearly 12. In 2005 the claimant became engaged to Yogesh Vaja Razada(?), a British citizen who was living in England. In the same year the claimant's daughter travelled to England on a Family Visit Visa. She remained in the United Kingdom and subsequently she was adopted by Mr Razada and was granted permanent leave to remain in the United Kingdom.

In 2007 the claimant and Mr Razada were married, but the claimant still lived in India. With a view to the claimant settling in the United Kingdom herself she made no fewer than four visa applications between 2006 and 2008 for entry to the United Kingdom, all of which were refused. The applications were made to the British High Commission in Delhi.

It is necessary to say something at the outset about these failed applications because the defendant submits it is this background which is the key to a proper understanding of the decisions taken by the immigration officers at Heathrow on 26 and 27 January to detain the claimant for further questioning and subsequently to give directions for her removal back to India. The first application made on 26 July 2006 was for a Visit Visa. The application was refused because the evidence did not support the applicant's circumstances and plans. It became clear subsequently that in this application the claimant had made significant false declarations.

The second application made on 7 March 2007 was for a Fiancee Visa. For the purpose of that application the claimant was interviewed at the High Commission in Delhi by the entrance clearance officer. In the course of this interview the claimant admitted that she had made false statements in previous visa applications, for example she had declared that her sponsor who was in fact Mr Razada was her uncle, whereas in fact he was her fiancee. This led the officer to doubt her intentions and to refuse her application.

She appealed against that refusal to the Immigration Judge who on 23 November 2007 dismissed her appeal. In the course of his judgment he expressed considerable concerns about the evidence that the applicant and Mr Razada had given. At paragraph 33 of the judgment he said that it was absolutely clear from the interview with the High Commission that the applicant had seriously misled the entry clearance officer on three distinct and separate occasions in the past. This included telling lies in connection with the Family Visit Visa in 2005, as a result of which the daughter had subsequently obtained indefinite leave to remain in the United Kingdom. In fact, the daughter had not been entitled to that visa and the view of the immigration judge was that had the High Commission been aware of those lies, it would have refused entry clearance for the daughter to come to the United Kingdom. The judge found that the credibility of the appellant had been totally undermined by the lies she had told in three different and distinct applications.

In August 2007 a further application for a Family Visit Visa was refused, although there are no further details of this in the papers before me. Finally, on 9 April 2008, the claimant's application for a Spouse Visa was refused. Her appeal was dismissed by another immigration judge who similarly made very strong adverse findings in relation to the credibility of the applicant and her husband Mr Razada. The judge rejected the suggestion that incorrect information provided in previous applications had simply been a mistake. He took the view that it had been a calculated attempt to deceive and that the claimant would say anything she believed suited her end without any regard for the truth. It was not good enough for her to blame the travel agent, who she claimed had advised her to say those things.

The Senior Immigration Judge upheld the refusal of her appeal on her application for reconsideration of the refusal.

The immediate background to the claimant's arrival in the United Kingdom from India on Monday, 26 January 2009 is as follows. She had booked her flight from Delhi to Dublin with a view to settling in Dublin in order to pursue a course of study at the Dublin Business School. She had been granted a 12 month Study Visa by the Irish Embassy. She had paid the course fees of 10,000 euros. The final date for late admission was 2 February 2009. She had a valid ticket and boarding card for her flight to Dublin.

The claimant also maintains that once in Dublin she intended to participate by video link in the final hearing of care proceedings involving her daughter brought by the London Borough of Hounslow in which both she and her husband were parties. The main issue, it seems, was to be whether her daughter should remain in foster care or whether she should be permitted to live with Mr Razada. There was no question at that stage of course of the claimant herself living with them in England.

The final hearing was scheduled for five days between 26 and 30 January 2009. There is evidence that her solicitor in the family proceedings had written to the claimant on 19 January 2009 asking the claimant to arrange a video link from Delhi, so clearly the solicitor expected the claimant still to be in Delhi during the week of the hearing, despite the claimant's plans for Dublin.

When the claimant arrived at Heathrow around 17.55 hours on Monday, 26 January her onward flight to Dublin was due to leave at 21.50 hours. She was required by reason of the physical layout of Heathrow Airport to pass through Immigration Control in order to reach the departure area for the Dublin flight. Although for reasons explained shortly a passenger in her situation would normally have been permitted to continue her journey without requiring entry clearance, the immigration officer had a discretion whether to disapply the relevant concession. This meant that she was required formally to enter the United Kingdom. Professor Rees challenges the correctness of this proposition and I shall return to it.

The defendant contends that the immigration officer who first dealt with her, Mr John Anderson, was entitled to examine her by questioning, pursuant to paragraph 2 of schedule 2 to the Immigration Act 1971 ("the Act"). He did so, but formed the suspicion that her real intention might not be to travel to Dublin in order to live there as a student, but on that pretext subsequently to enter the United Kingdom from Ireland to join her husband and thereby effectively to gain entry to the United Kingdom on a permanent basis. Mr Anderson formed this suspicion in part because of her history of failed applications for entry to the United Kingdom and in part because of the account she gave him of the history of her relationship with her husband. She told him that she had gone through a religious ceremony of marriage, but has subsequently broken off her relationship with him on discovering that he had failed to divorce his previous wife as promised. She made no mention to Mr Anderson of her daughter living in England, nor of the care proceedings.

Mr Anderson decided that further...