R MS Shanila Kanwal v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 20 January 2022 |
| Neutral Citation | [2022] EWHC 110 (Admin) |
| Docket Number | Case No: CO/4118/2019 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 110 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: CO/4118/2019
Michael Biggs (instructed by Gaffrey Brown Solicitors LLP) for the Claimant
Jack Anderson (instructed by Government Legal Department) for the Defendant
Hearing date: 26 October 2021
Approved Judgment
I Introduction
The Claimant is a national of Pakistan. She was born on 7 April 1986. She seeks judicial review of the Defendant's simultaneous decisions taken on 10 October 2019: (a) to curtail her leave to remain with immediate effect; (b) to remove the Claimant from the UK pursuant to section 10 of the Immigration and Asylum Act 1999 (“the IAA”) (for both decisions, see the RED0001); and (c) to detain the Claimant (a decision that was renewed until the Claimant was released from immigration detention on 24 October 2019), see the IS.91R form and the detention reviews of 11 October 2019, 17 October 2019 and 24 October 2019.
On 24 March 2010, the Claimant was given entry clearance as a tier 4 (general) student valid to 18 May 2011. She entered the UK pursuant to this entry clearance on 29 April 2010, whereupon her entry clearance was converted to leave to enter valid to 18 May 2011 as per articles 2–5 of the Immigration (Leave to Enter and Remain) Order 2000 as amended. On 12 May 2011 she applied for leave to remain as a tier 4 (general) student. On 19 October 2011, the application was granted, and the Claimant was given leave to remain valid until 27 March 2012. On 27 March 2012 she applied for further leave to remain as a tier 1 (post study work) migrant. The application was granted on 13 August 2012 and the Claimant was granted leave valid to 13 August 2014.
On 12 August 2014, the Claimant applied for leave to remain as a Tier 1 (Entrepreneur) Migrant. That application was refused on 7 October 2014, subject to a right of in-country appeal. The Claimant appealed in-time, and her appeal was allowed on 21 September 2015. On 20 October 2015, she was granted leave to remain as a Tier 1 (Entrepreneur) Migrant, which, following an application made on 18 October 2019, was extended on 3 July 2019 until 10 July 2021. The notice of decision extending her leave noted:
“…You are not permitted to undertake employment other than working for the business(es) you are establishing, joining or taking over”
In respect of both tier 1 (entrepreneur) applications the Claimant relied upon a business run through a company she controls, called Ash Recruitment Consultants Ltd (“ARC”). As documents provided to the Defendant in support of the applications showed, one of the clients of ARC was City Inn Express Hotel at 144a Mare Street, London (“the Hotel”), the organisation for which the Claimant is said to have been employed as a receptionist illegally.
On 10 October 2019, the Defendant's officials/ employees attended the Hotel to carry out an immigration enforcement visit. The events of the visit are the subject of an extensive dispute of fact between the parties. It is agreed between the parties that the Claimant was arrested, questioned at the Hotel, and then placed into immigration detention.
Ms Rhazounai, one of the arresting officers, explained what happened at the visit in detail, although the events are disputed by the Claimant. In short, the Claimant was encountered sitting on the sofa in the lounge area; she claimed not to be working and said that she was going to sit in a friend's room (Room 303) as she was visiting her friend (Ms Husna Jabeen) at the Hotel. The arresting officer took her details, and checked them with the Home Office, and allowed her to proceed since, at that point, there was no reason to take further action against her.
In the meantime, two persons were arrested for working illegally at the Hotel, namely Mr Motashim Ali Mohammed (“Mr Mohammed”) arrested by Immigration Officer John Gascoigne and Salahuddi Md, arrested by Immigration Officer S. Lule, who were found to have overstayed their visas and were illegally present in the UK and were working illegally at the Hotel. A fuller search of the Hotel was authorised under paragraph 25A of schedule 2 to the Immigration Act 1971. One of those individuals was Mr Mohammed, the duty manager. He gave his permission to the Defendant to search the remaining rooms in the Hotel to locate “the cleaner and last employee” in the building; whom he identified as being the Claimant. The interview record with Mr Mohammed records:
“….
What is your position here? Front desk and I'm the person charge today
How long have you been working here? 2 weeks…
[Asked about keys for rooms 304/303]
Who lives in the room? The receptionist called Kamal she works and lives here
How long has she been working here? I'm not sure
How many days a week does she work? She works two or three shifts at this property
Do you have employee records for her? No
….”
A witness statement dated 5 November 2019 prepared by officer John Gascoigne notes of the interview with Mr Mohammed:
“…I proceeded to question Mohammed who was served with the Notice to Occupier and he was subsequently identified as an immigration offender and arrested by me as an overstayer in the UK. Whilst trying to establish his circumstances at the premises, he was asked who else worked there. He stated to me that a female, whom I now know to be Shahnila Kanwal, a Pakistani female, dob 07.04.86 who was present at the time of our visit was also an employee of the hotel, working in the capacity of a receptionist. He clearly pointed her out to me as she was being questioned by IO H Rhazouani. He stated that the role of receptionist was shared by several members of the team, including his cousin who was not present at the time of our visit. He stated that there was no published rota for staff at the hotel but that each kept in touch with each and the hotel owner by text messages, being made aware of their given shifts via the same method.”
The Defendant's officials undertook a search of the rooms and found the Claimant in room 301. The friend she claimed to be visiting was not there, and the room contained the Claimant's belongings, including photographs of her on the dressing table and identity documents (including her current and expired Pakistani passports, old bank statements and correspondence with an address at Blackhorse Lane, which she indicated was no longer her address). There were also clothes, jewellery and make up in the room with suitcases and other bags. The Claimant sifted through those bags when asked to pack a bag for the purpose of detention, despite claiming that the belongings were those of her friend. Room 303, where the Claimant said she was visiting her friend, was in fact empty. The number of belongings at the Hotel indicated that she was living there.
The Claimant's account is set out in her two witness statements. In her witness statement dated 20 October 2019, the Claimant stated that, on 10 October 2019, she was at the Hotel for the purposes of providing consultancy and training services to staff at the Hotel under the terms of a contract made between ASH Recruitment Consultants Limited (“ARC”) and the Hotel. The Claimant is the sole director and shareholder of ARC.
The Claimant stated that she was present when the Hotel was visited by immigration officers. She said that she explained to the immigration officers her role with ARC and the services that ARC provided to other businesses. This was consistent with the contemporaneous digital notes taken by the Defendant's officer, Ms. Rhazouani, on 10 October 2019.
The Claimant was interviewed by immigration officers. The Claimant disputes that she was “interviewed”. The Claimant's account is that on 10 October 2019 she was visiting the Hotel to provide “consultancy services” and that she had left some belongings with a friend at the Hotel as she was moving address. She said that she attended the Hotel to provide these human resources services and because the Claimant's friend and an employee of the Hotel, Husna Jabeen, had a room at the Hotel (room 301) which the Claimant was using to store some of her belongings as she was in the process of moving address. The Claimant and the owner and manager of the Hotel, Mr Yasser Mussadiq (who was also present at the Hotel on 10 October 2019 during part of the enforcement visit), deny that the Hotel employed the Claimant illegally.
Ms Hassana Rhazouani, an immigration officer made a witness statement dated 2 June 2020. She stated:
(1) On 10 October 2019, she attended a North London enforcement visit to the Hotel with a team of Immigration Enforcement officers.
(2) She was informed by another officer, that when officers entered the Hotel, the Claimant was sitting on a sofa in the Hotel lounge. The Claimant told officers that she was not working.
(3) She said that she saw the Claimant leaving the lounge to go upstairs. Ms Rhazouani asked the Claimant to return to the lounge.
(4) Ms Rhazouani said that she asked the Claimant where she lived, and that the Claimant evaded the question.
(5) Ms Rhazouani carried out a check on the Claimant and established that she had been granted a Tier 1 Highly Skilled Entrepreneur visa. Following that check the Claimant went upstairs.
(6) Ms Rhazouani said that other immigration officers interviewed the duty receptionist Mr Mohammed. Ms Rhazouani states that it was reported to her that Mr...
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