The King (on the application of Luiz Paulo Pereira Campos) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Clare Padley |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3299 (Admin) |
| Docket Number | Case No: CO/605/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 3299 (Admin)
Clare Padley (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/605/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jay Gajjar (instructed by Ashton Ross Law) for the Claimant
Ms Catherine Brown (instructed by Government Legal Department) for the Defendant
Hearing dates: 15 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 21 st December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Clare Padley (sitting as a Deputy High Court Judge):
This is a claim for judicial review. The claimant is a Brazilian national who came to the UK in November 2021 as a visitor and was given leave to remain until May 2022. In February 2022 his leave was cancelled by the Defendant on the grounds that he was working illegally, and he was detained pending removal.
The Claimant was given permission at an oral renewal hearing in August 2022 to challenge the decisions made by the Defendant on 1 February 2022:
i) to cancel his leave to stay in the UK and
ii) to detain him pending removal (which detention lasted from 1 February 2022 to 7 March 2022)
The Claimant is seeking the following orders:
i) An order quashing the cancellation of his leave
ii) A declaration that his detention was unlawful
iii) An order that the Defendant pay him damages and costs
The Claimant's original grounds of challenge in the claim form and Grounds of Claim were that the cancellation of his leave was arguably unlawful given the failure by the Defendant to disclose the material held against him and that his detention was unlawful. At that stage, the claim was based entirely on arguments about procedural unfairness relating to disclosure of evidence.
The importance of procedural rigour in judicial review claims has been repeatedly emphasised by the appellate Courts. ‘Procedural Rigour’ and the need to observe the rules has its own section in the Administrative Court Guide (2022) which is available online to all parties to such proceedings. Unfortunately, such rigour and observance were notably absent from the conduct of these proceedings on the part of both parties, with the result that by the time of the substantive hearing, the nature of the claim, the evidence from both parties, and the arguments being made had all evolved significantly from the originally pleaded claim.
Additional ground of irrationality
The Claimant, at the court's invitation at the start of this hearing, sought retrospective permission to rely on an additional ground of irrationality, for which the court's permission did not appear to have previously been sought or given, but which was first raised as a potential further or alternative ground in the Claimant's submissions in reply to the Acknowledgement of Service on 5 April 2022 and was addressed by both Counsel in their skeleton arguments.
Part 54 of the Civil Procedure Rules and Practice Direction 54A set out clear rules and procedures in judicial review cases of this nature. Part 54.15 makes clear that the court's permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed. PD 54A sets out the requirements for such an application for permission which must be made in accordance with Part 23 and be accompanied by draft amended grounds and evidence explaining the need for the proposed amendment and any delay in making the application for permission.
Although it was agreed by both parties that no formal application to amend the claim had been made and that this issue had not been expressly addressed at the oral permission hearing, the Defendant accepted that she had not taken the point and that both parties had proceeded on the basis that since the permission stage, the irrationality ground now formed part of the claim. I noted that the Order of the Deputy High Court Judge granting permission following the oral renewal hearing stated that it was granted on “all grounds” rather than on “both grounds” although no mention was made in the Order itself of the nature of those grounds or of any amendment.
Having regard to the overriding objective and taking into account the overlapping nature of the grounds of irrationality and procedural unfairness in this case, and the lack of prejudice to the Defendant, I agreed to grant permission for the Claimant to rely on the additional ground of irrationality in relation to the unlawfulness of the cancellation decision.
Other preliminary applications
Two other preliminary applications by the Defendant were also before me at the start of the hearing:
i) To extend time for service of the Defendant's skeleton argument.
ii) To rely on additional witness evidence from the two immigration officers Watson and Chapman who attended the premises and a full copy of the interview notes.
The first application was not opposed by the Claimant, and the skeleton argument was served by the revised date, so I granted an order for that extension of time retrospectively.
The second application had been opposed by the Claimant in writing prior to the hearing but was no longer opposed by Counsel for the Claimant, Mr Gajjar, at the start of the hearing. He accepted that the Defendant should be allowed to rely on the additional witness evidence and indeed sought to rely on some of it himself. The additional evidence was filed in response to points of challenge made for the first time in the Claimant's submissions in response to the Detailed Grounds for which permission had been given at the oral renewal hearing and raised in the Claimant's skeleton argument. It was also, arguably, evidence that should have been included in the initial statements from these witnesses. Again, despite my concern about the lateness of this evidence, in the light of the agreed position of the parties and the need to ensure a fair hearing, I allowed this evidence to be admitted.
Post-hearing application
Following the hearing, I indicated to the parties that I would reserve judgment. The following day, the Defendant emailed the court seeking to rely on an extract from the PRONTO record referred to in the further witness statements of officers Watson and Chapman relating to the issue of whether a caution was given to the Claimant. I advised that a proper application would have to be made and that the Claimant should be given an opportunity to respond.
The Defendant then made a written N244 application on 17 November 2022 and attached a screenshot of the PRONTO record for which permission was sought to rely but provided no witness evidence in support of the application and no explanation at all as to why this evidence had not been disclosed at an earlier stage. The Claimant filed a response objecting to this late application and challenging the reliability of the evidence in the absence of any accompanying witness statement or statement of truth. In all the circumstances, I do not consider it appropriate to admit this evidence at that late stage after the hearing had concluded, in the absence of any proper explanation for the delay. The Defendant's application is refused and I will therefore proceed to consider this claim without regard to that evidence.
Background
The Claimant was born on 16 September 2002 and is now aged 20. He came to the United Kingdom (UK) on 10 November 2021 when he was 19 as a visitor on his Brazilian passport. He told the entry officials that he planned to stay for 10 days. He was granted leave to enter as a standard visitor and given leave to remain in the UK for 6 months, until 10 May 2022. He did not have a return ticket. It is accepted by the Claimant that as a visitor, he was not entitled to carry out any type of work in UK.
By February 2022, the Claimant was living in an address in Swindon with several other people. Immigration officials obtained a warrant to enter and search that premises. The search took place at 6.00 am on 1 February 2022. The Claimant was encountered by immigration officials in a bedroom at the Swindon premises during that enforcement visit.
He was interviewed by immigration officials. He was arrested by an immigration official for working in breach of his leave to remain and his leave was cancelled. He was therefore liable to administrative removal from the UK as defined in Section 10 of the Immigration and Asylum Act 1999. There is a factual dispute in this case as to what occurred during that interview, and I will return to the details of that interview and search in due course.
The Claimant was served with a RED.0001 liability notice and an IS.91.R (reasons for detention and bail rights notice) in accordance with section 120 Nationality, Immigration and Asylum Act 2002 and he was detained pending his removal. The cancellation notice gave the following reasons:
“ You are specifically considered a person who has been working in breach of your employment restrictions whilst in the United Kingdom. You was [sic] granted leave to enter on 10th November 2021 for six months. You stated that you intended to and [sic] leave on 30th November 2021. Immigration officers have seen also evidence you showed today on your phone of your work account with Deliveroo where you working as a delivery driver. You are restricted from employment in the United Kingdom therefore you are working in breach of your Employment Restrictions.
I have considered all the information available to me and I am satisfied that you are an [sic] Worker in Breach — an offence under 24(1)b(2)[sic] of the Immigration Act 1971 as amended. Therefore, you are liable to...
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