Sazzad Shahriar Swaran v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 09 April 2014 |
| Neutral Citation | [2014] EWHC 1062 (Admin) |
| Docket Number | Case No: CO/9830/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 April 2014 |
[2014] EWHC 1062 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dingemans
Case No: CO/9830/2012
Raphael Jesurum (instructed by Duncan Lewis Solicitors) for the Claimant
David Blundell (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: Wednesday 2nd April 2014
Introduction
This is a claim for damages for false imprisonment made by the Claimant, Sazzad Shahriar Swaran against the Secretary of State for the Home Department. This case raises issues about the circumstances in which claims for damages should be bought in the Administrative Court, and a point about the proper interpretation of paragraph 16(1A) of Schedule 2 of the Immigration Act 1971.
The Claimant claims that he was unlawfully detained in the period from 22 nd September 2011 until 14 th May 2012. The Defendant contends that the detention was lawful and that the Claimant was detained under statutory powers: to examine the circumstances in which he had obtained leave and to decide whether that previous leave should be cancelled; and pending the Claimant's proposed return to Bangladesh.
Entry into the UK and the return to Bangladesh
The Claimant is a national of Bangladesh and was born on the 28 th July 1984. The Claimant had entered the United Kingdom as a Tier 4 student with a visa valid from 20 th July 2009 until the 20 th November 2011. The evidence showed that he studied at the London School of Science and Technology from 2009 until early 2010 and then began a course in Administration of Business Management at the Raya Academy in January 2011.
In about August 2010 the Claimant, who was a dancer, met a consultant eye surgeon. They formed a relationship and started to live together in about September 2010. They entered a civil partnership on the 29 th June 2011. Paperwork was completed to register the Claimant as the civil partner of the consultant surgeon and he was granted leave as a result of the civil partnership until 15 th July 2013. This new leave contained none of the usual limitations on leave granted to Tier 4 students.
In August 2011 the Claimant returned to Bangladesh after his sister had given birth and suffered complications. At some stage the Claimant's civil partner had followed him to Bangladesh. In circumstances which appear to be controversial between the Claimant and his civil partner, the Claimant's civil partner terminated the relationship between them and told the Claimant that he was withdrawing his sponsorship of the Claimant.
On the 6 th September 2011 the Claimant's civil partner faxed the Home Office in Croydon about the Claimant. He said " I am regretfully writing this note to withdraw my sponsorship as the civil partner of the above Bangladesh national." The Claimant's civil partner made a number of allegations against the Claimant to the effect that the Claimant: had not attended the Raya Academy; had not paid fees; and had worked illegal hours. It was also alleged that: the civil partnership had proved not to be a genuine one; the Claimant had a biometric card which he might misuse; the Claimant had had a heterosexual relationship with a person which had been hidden from the Claimant's civil partner; and the Claimant's civil partner was now concerned about his own safety in Bangladesh where he was on a cultural trip organised by the Indian and British High Commission. The Claimant's civil partner also said that the Claimant had exploited the Claimant's civil partner physically, mentally and financially, and he asked that the Claimant's status be revoked. The Claimant's civil partner noted that he was withdrawing his sponsorship of the Claimant and that the Claimant was still in the probationary period. I should state, out of fairness to the Claimant, that the Claimant has given evidence before Immigration Judges denying the allegations made by his civil partner.
The Claimant's return to the UK
The Claimant arrived back in the United Kingdom at Heathrow airport on the 22 nd September 2011. The case record sheet shows that it was on that day that the information from the fax sent by the Claimant's civil partner was entered on to the relevant database. This database was the General Case Information Database ("GCID"). It was specifically noted " marriage partner breakdown notified — this information must not be disclosed to the foreign spouse partner or used to support curtailment or other action without the UK settled spouses partners written agreement".
On arrival at Heathrow the Claimant joined the student queue and presented his passport. The passport contained the Claimant's Tier 4 entry clearance visa expiring on the 20 th November 2011 but didn't contain the details of his civil partnership. According to paragraph 4 of the witness statement of Ghazalla Khan of the Heathrow Border Casework Unit at Terminal 3 when the Claimant was prompted for dates regarding his studies he faltered, and then produced the identity card for foreign nationals ("ICFN") confirming leave to enter from 15 th July 2011 to 15 th July 2013 as a spouse.
The Claimant apparently stated that he was in a civil partnership but was unable to provide the date on which the civil partnership had taken place. A check of the Home Office records was then carried out which revealed the allegations about the Claimant made by his civil partner and sponsor. In the light of this information the Claimant's leave was suspended and he was issued with an IS81 providing for a further examination under paragraph 2A of Schedule 2 of the Act, and the Claimant was formally detained.
The IS81 in the evidence before me is not completed and has been generated from a computer snapshot. The Claimant was served with an IS91R informing him of the reasons for his detention and advising him of bail rights and also issued with a form IS86 requiring him to provide fingerprints.
The examination
At around 1940 hours on 22 nd September 2011 the Claimant was interviewed about his relationship with his civil partner. The Claimant contended that he was attending college regularly and also working at a hospital as a security officer. He was asked whether he was married and replied " yes in May 2011". He was asked why his partner was in Bangladesh and the Claimant replied " he is a singer and he had a programme in Bangladesh". The Claimant was then asked why he had travelled separately and he answered " because I have to go back to work and he is busy with his cultural programme and his singing".
I note that at paragraph 61 of a witness statement dated 23 rd April 2012, made for the purposes of his asylum claim, the Claimant stated that as his civil partner would not discuss problems he had with him in Bangladesh and because the Claimant did not feel safe in Bangladesh he decided to return to the United Kingdom.
The Claimant did not make any witness statement for the purposes of this action and relied, as he is entitled to do, on the fact that it is for the Defendant to justify his detention.
The return of the Claimant's civil partner
On 23 rd September the Claimant's civil partner returned to the United Kingdom. He was interviewed and confirmed that his relationship with the Claimant was no longer subsisting. The Claimant's civil partner made allegations that he had been the victim of abuse by the Claimant. The Claimant's civil partner was asked to confirm that he was happy for the Home Office to use the withdrawal of support in any future action and replied " yes. He's a threat to me and a threat to society and our borders. He will definitely get lost or go to France and misuse any photographic ID he has with him." The GCID records suggest that this was noted up in the early hours of the morning on 24 th September 2011. The civil partner's plane had arrived at 2100 hours on 23 rd September 2011 and so it appears that it had taken time to conduct the interview and to make up the notes.
The Claimant's continued detention
During the day on 24 th September the Claimant's case was allocated to Team 1 and a Chief Immigration Officer was identified. On 25 th September 2011 notes were made on to the GCID record noting that because of the withdrawal of the sponsorship by the civil partner, the Claimant fell to be refused under paragraph 321a of the Immigration Rules. The notes suggested that before that occurred contact should be made with a specific Home Office Unit at Croydon to enquire whether it was intended to curtail the Claimant's leave. It was recorded that if the Unit did not curtail leave then the Claimant could still be refused for a change of circumstances and given a full right of appeal.
In terms of detention it was noted that the officer was minded to keep the Claimant in detention " given that the sponsor has alleged issues of domestic violence". It was noted that a report had been made to the police and that they were undertaking enquiries. It was also recorded that if the Claimant didn't appeal then he could be removed. Finally it was recorded that by maintaining detention enquiries could be made with Surrey police about the issues of domestic violence. Two actions were noted. The first was to contact the Unit at Croydon to determine whether they wished to pursue curtailment. The second was that once refused the Claimant was to be detained pending the lodging of an appeal. In the meantime liaison should be carried out with Surrey Police.
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