The Queen, on the Application of Prince Vijaykumar Bhatt Dharini Vijaykumar Bhatt v The Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Helen Mountfield QC |
Judgment Date | 18 June 2015 |
Neutral Citation | [2015] EWHC 1724 (Admin) |
Court | Queen's Bench Division (Administrative Court) |
Date | 18 June 2015 |
Docket Number | Case No: C0/15097/2013 |
[2015] EWHC 1724 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Mountfield QC
(Sitting as a Deputy Judge)
Case No: C0/15097/2013
Adam Tear (instructed by Duncan Lewis) for the Claimants
John McKendrick (instructed by Government Legal Department) for the Defendant
Hearing date: 10 February 2015
Introduction
The Claimants in this case are a brother and sister who are Indian nationals, who came to this country lawfully on student visas, which were later extended for post-study work leave in 2008. In 2010, the Claimants sought to extend those visas. The immigration advisor who acted for them failed to put in applications based on true facts, and unknown to the Claimants, put in claims based on fraudulent documents. The Claimants have therefore been badly let down by an immigration advisor who has since served a prison sentence for fraud. As I explain below, they have also been ill-served by the Home Office, which mishandled their case. As a result of the immigration advisor's actions, they were wrongly suspected of having used deception to remain in the country in March 2012; and detained before they left the country. They have accordingly been subjected to an unlawful period of immigration detention for a period of seven days between 14 March 2012 and 21 March 2012, and in their removal from the country in circumstances in which they ought not to have been required to do so. Their appeals, conducted out of country, were also mishandled by the Defendant, with documents being lost, and many delays. Once the appeals were allowed, there were severe delays in action being taken to consider how to address the consequence of that.
This claim is therefore brought in very unfortunate circumstances. As the Defendant's skeleton argument noted (underlining in the original):
" … [I]t is important to record the Defendant's apology to the Claimants for the manner in which they were treated in March 2012. An error was certainly made. The Claimants should not have found themselves in this situation. They should not have been detained. They should not have been removed in the circumstances they were. The Defendant apologises for this."
Counsel for the Defendant started his oral submissions by repeating this apology in open court — and he was right to do so. As a result of these events, the Claimants may very well have a private law claim for damages for false imprisonment. But that is not the issue in this application for judicial review. Indeed, part of the problem is that it is very unclear what issues of public law the Claimants' lawyers said arose in this case. Ultimately, I have concluded that there is no properly pleaded public law claim, and the grounds as pleaded, even as expanded and re-cast in the skeleton argument, raise no failing by the Defendant which can constitute grounds for a successful challenge by way of judicial review. I make some observations about the way in which this claim was conducted on behalf of the Claimants in paragraphs 26, 31,35–44,54 and 55 below.
The Factual Background to this Claim
The Claimants, Indian nationals born in 1983 and 1981 respectively came to this country in 2007 and 2005 respectively, initially on student visas. Thereafter, in October 2008, they applied for, and were granted, leave to remain under the Tier 1 (Post Study) Work scheme in the Immigration Rules, which expired in October 2010.
In March 2010, the Claimants instructed Surge Global Solutions, then OISC regulated immigration advisors, to apply on their behalf for further leave to remain under Tier 1. Unknown to the Claimants, Surge Global Solutions were involved in lodging fraudulent applications for leave to remain. Instead of putting in claims for the Claimants on a proper legal basis, the immigration advisors put in applications for further leave to remain based on false Masters certificates from the University of Delhi and false accounts to demonstrate previous earnings. Since I am told that there was a proper basis upon which the Claimants could have obtained extension visas, it is not known quite why the immigration advisors did this — perhaps it was labour saving. In any event, the advisors were investigated under Operation Inkspell and the fact of the false claims were discovered. (As noted above, Mr Gupta, the individual immigration advisor who lodged these claims was ultimately imprisoned for fraud).
As a result of the March 2010 applications for leave to remain, but before the fraudulent basis for the applications for leave were discovered by the Defendant, the Claimants were granted further periods of leave, from 14 April 2010 to 14 April 2013 and from 12 April 2010 to 12 April 2013 respectively. The Claimants therefore continued their lives in this country, in the belief that they had properly granted leave to remain.
However, following the Operation Inkspell investigation, on 14 March 2012, the Claimants were arrested in a dawn raid. They were interviewed pursuant to an investigation relating to section 24A(1) Immigration Act 1971, on suspicion of having committed the criminal offence of having obtained leave to remain in the United Kingdom by deception.
On 14 March 2012, both Claimants were put into immigration detention. By that point, Mr Gupta was serving a prison sentence for immigration offences, though not (I understand) in relation to the Claimants' applications for leave to remain. Although the notes of the interviews which were undertaken with the Claimants have now been lost, the Defendant formed the view that the Claimants had used deception to obtain leave to remain and were therefore liable for removal from the country.
Paragraph 322(1A) of the Immigration Rules states that where false documents or information have been submitted — whether or not material and whether or not to the applicant's knowledge — leave to remain can be refused or, if already granted, curtailed. Curtailment of leave, however, does not automatically lead to removal. The power of removal under section 10 Immigration Act 1999, so far as is material, only confers a power of removal where a person has "used deception" in seeking leave to remain; and the power of detention can only be used for the purposes of lawful removal. In other words, intention is irrelevant if leave is obtained on a false basis; but intention to deceive or otherwise is relevant to the lawfulness of detention and removal.
On 15 March 2012, the Claimants were served with decision notices that they would be administratively removed from the United Kingdom under the provisions of section 10 Immigration & Asylum Act 1999 and that they were liable for detention until removal. Removal directions were set on 16 March 2012 for removal on 21 March 2012. Mr Bhatt asked for permission to depart voluntarily, but this request was declined because directions had already been set for removal.
The Claimants were notified of an out of country right of appeal against the removal decision. They exercised that right, and after serious delays by the Defendant in lodging evidence, their appeal was allowed by First Tier Tribunal Judge Herbert on 21 January 2013. He allowed the appeal on the basis that the decision was not in accordance with the Immigration Rules.
The Defendant appealed this decision to the Upper Tribunal. The appeal was allowed on the basis that the Defendant was right to say that it had not been open to the Immigration Judge to decide the matter on the basis of the Immigration Rules, so the FTT decision was set aside. However, the Upper Tribunal retook the decision under appeal and allowed it in a decision promulgated on 24 April 2013. The Upper Tribunal found that the decision to remove the Claimants had not been in accordance with section 10(1)(b) Immigration & Asylum Act 1999 because the Claimants had not known about their advisor's fraud. Consequently it was set it aside.
On 15 May 2013, the Defendant purported to give effect to this decision by writing to the Entry Clearance Officer in Mumbai. The letter incorrectly said that a successful appeal had been made against the Entry Clearance Officer's decision (which was not the issue in the Appeal), enclosed a copy of the 'appeal decision', and asked the Entry Clearance Office to act in accordance with "the spirit of the determination and in the light of the applicants' [ie the Claimants'] circumstances".
The Claimants were then given leave to enter the United Kingdom for a month between 3 July 2013 and 3 August 2013 to enable them to liaise with the immigration authorities. They returned on 11 July 2013 and under cover of a letter dated 1 August 2013, made applications for leave to remain outside the Immigration Rules. These applications were refused on 18 September and 24 September 2013 respectively. Mr Bhatt was not offered a right of appeal, but in any event, neither Claimant sought to exercise any such right.
Consequently, the Claimants returned to India on 14 October 2013, and the decisions of 18 and 24 September 2013 remain and are unappealed.
The application for judicial review
A letter before action was sent to the Defendant on 26 September 2013 asking for a reply by 9 October 2013. In breach of the pre-action protocol for judicial review, the Defendant failed to reply. On 9 October 2013, an application for judicial review was lodged on the...
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