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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Chaparadza, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 1209 (Admin) (24 May 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/1209.html Cite as: [2017] EWHC 1209 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
THE QUEEN on the application of GODWIN CHAPARADZA |
Claimant |
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- and – |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
CATHERINE ROWLANDS (instructed by Government Legal Department) for the Defendant
Hearing date: 27 April 2017
____________________
Crown Copyright ©
Akhlaq Choudhury QC :
A. Introduction
a) The Defendant's failure to serve notice of a decision made in October 2011in respect of an application to vary his leave to remain. The Claimant claims that the result of that failure is that his leave to remain continued by the operation of s.3C of the Immigration Act 1971 ("the 1971 Act") up to and beyond a period of detention to which he was later subject. I shall refer to this as "Ground 1";
b) The Defendant's refusals to treat his submissions in support of a subsequent asylum claim (which claim was rejected in 2013) as a fresh claim. The Claimant contends that these decisions are flawed in that they were based on an erroneous assumption that the Claimant's leave to remain had ended. I shall refer to this as "Ground 2"; and
c) The lawfulness of his detention from 11 April 2014 until 20 June 2014. The Claimant says that his detention could not have been lawful because he continued to have leave to remain pursuant to s.3C of the 1971 Act and he claims damages. I shall refer to this as "Ground 3"
B. Factual Background
C. Procedural background and the Scope of Permission to Amend
a) The first was the date when the Claimant became ARE – a discrepancy had arisen as to that because of a letter from the Upper Tribunal suggesting that he had become ARE on 14 April 2014. The significance of that, of course, is that his detention commenced before 14 April 2014, and, if his appeal rights were continuing, removal could not be said to be imminent. It was subsequently confirmed that the ARE date was in fact the earlier one of 21 February 2014;
b) The second matter to be clarified was the date when the Defendant claims the 2011 decision was served. The Claimant maintained that it had not been served;
c) The third and final matter to be clarified was the Claimant's grounds of complaint. The Claimant was given permission to amend his grounds so as to enable him "to formulate his case on when any s.3C leave rights were exhausted and whether any s.3C leave was terminated by the claimant making an asylum claim." This last point is of some significance as the Defendant contends that the grounds as now pursued go beyond the scope of that permission to amend.
D. Ground 1 – Failure to Serve Notice of the 2011 Decision
(1) Did the 2011 decision have any legal effect?
"4.— Administration of control.
(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument. (Emphasis added)".
"42 The short answer to these submissions is that section 4 of the 1971 Act explicitly provides that the power to give leave to remain or to vary any leave "shall be exercised by notice in writing given to the person affected". Accordingly, the fact that internally the Secretary of State may have decided to refuse Mr Ali's application to vary his leave on 7 July is legally irrelevant. What is legally relevant is the date and time of the service of notice in writing to the person affected. Until then there is legally no decision.
43 In this respect the 1971 Act reflects the important statement of principle in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 , para 26. Lord Steyn stated that the requirement of notice of a decision before it can have legal effect "is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system …" (Emphasis added)".
"For the purpose of section 3C of the Immigration Act 1971 an application for variation of leave is decided—
(a) when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002; or where no such notice is required,
(b) when notice of the decision has been given in accordance with section 4(1) of the Immigration Act 1971".
(2) Did the making of the asylum claim vary the 2011 application?
a) whether the application as varied comprised both the original purpose for seeking an extension and the asylum claim (thereby requiring a determination by the Defendant in respect of both); or
b) whether it comprised the asylum claim alone.
"3C Continuation of leave pending variation decision
(1) This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a)."
"35 The key to the matter is an understanding of how s.3C operates.... The section applies, by subs.(1) , where an application for variation of an existing leave is made before that leave expires (and provided that there has been no decision on that application before the leave expires). In that event there is, by subs.(2) , a statutory extension of the original leave until (a) the application is decided or withdrawn, or (b), if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c), if an appeal has been brought, that appeal is pending: I paraphrase the statutory language, but that seems to me to be the effect of it. During the period of the statutory extension of the original leave, by subs.(4) no further application for variation of that leave can be made. Thus, there can be only one application for variation of the original leave, and there can be only one decision (and, where applicable, one appeal). The possibility of a series of further applications leading to an indefinite extension of the original leave is excluded. However, by subs.(5) it is possible to vary the one permitted application. If it is varied, any decision (and any further appeal) will relate to the application as varied. But once a decision has been made, no variation to the application is possible since there is nothing left to vary.
36 Once the operation of s.3C is understood, the concern of the tribunal in DA Ghana about nullifying the prohibition in subs.(4) if a second application is treated as a variation of the first can be seen to lose its force. A second application can be treated as a variation of the first only up to the point when the Secretary of States makes a decision on the application. There is nothing surprising about subs.(4) having only a limited impact during that period, given that it is qualified by subs.(5) which expressly permits a variation of the first application. Thereafter, however, subs.(4) is effective to prevent any further application which might otherwise have been made right up to the time when an appeal in relation to the first was no longer pending, and to prevent a succession of such applications. Far from being nullified, it retains an important function in avoiding abuse of the system.
37 As to the tribunal's emphasis on the purpose for which an application is made, it is difficult to see why a difference in purpose should determine whether one application is capable of amounting to a variation of another. The statute refers, in s.3C(1) , to an application for "variation" of existing leave even if the application is for a different purpose from that of the existing leave: for example, if the original leave is to remain as a student, an application for variation of that leave will fall within s.3C(1) even if it applies for leave to remain as a spouse. As a matter of language, there is no reason why a later application should not also be treated as a "variation" of the first application even if it is for a different purpose. I do not accept that a variation can only arise where the later application is for the same purpose but with different details. In any event it seems to me that an application for leave to remain as a spouse is an application for the same essential purpose even if the form of leave sought is in one case indefinite and in the other case limited.
38 I do not think that anything can turn on whether the later application is in the same prescribed form as the first application. The prescribing of forms lies within the power of the Secretary of State and the decision whether to prescribe different forms for different types of application is a matter of executive judgment on which the question whether something is a variation should not depend. For example, the form prescribed by regulation 6 relates to categories as varied as "au pair" to "postgraduate medical/dental training" and "other purposes/reasons not covered by other application forms". There is no evident reason why the switch from au pair to postgraduate dental trainee should be capable of counting as a variation, whereas the switch from indefinite leave to remain as a spouse to limited leave to remain as a spouse should not, just because the same form has been prescribed for the former whereas different forms have been prescribed for the latter.
39 It also makes good sense to adopt an approach towards variations that will allow decisions to take account of any relevant change of circumstances since the first application was made, whether the change is one of detail or affects the capacity in which the applicant seeks leave to remain (for example, the student who has married a British citizen since making his application for leave to remain and who now seeks leave to remain as a spouse). Nor do I see any serious practical downside, such as the risk of delay: the speed with which a decision is made is to a large extent in the hands of the Secretary of State.
40 I am therefore satisfied that a later application is capable of being treated as a variation of the first application even if it is for a different purpose and on a different form.
…
43 In the light of the conclusion I have reached on the legal issue, I turn to consider whether the second application amounted as a matter of fact to a withdrawal of the first application or a variation of it (or neither)… (Emphasis Added)"
a) The 2011 application triggered the extension of leave under s.3C(2) of the 1971 Act. That is because the application was made prior to the expiry of the existing leave. That extension commenced on 1 August 2011 immediately following the expiry of the existing leave;
b) The asylum claim was made before any legally effective decision was made in respect of the 2011 application. That means that the asylum claim could amount to a variation of the original application within the meaning of s.3C(5) of the 1971 Act, notwithstanding the fact that the asylum claim is made for a different purpose than the original one under the 2011 application;
c) It is a question of fact whether the asylum claim amounted to "a withdrawal of the first application or a variation of it (or neither)": JH at [43]. The facts in this case suggest that there was no withdrawal of the 2011 application as such. It is notable that the Claimant continued to assert that he had not received any notice of the 2011 decision during his asylum interview and thereafter, and there is nothing in the papers before the Court that could be said to amount to an unequivocal withdrawal of the 2011 application. Moreover, the Defendant's attempt to serve the 2011 decision even after the asylum claim had been made indicates that she too did not regard the 2011 application as having been expressly withdrawn.
a) First, the effect of s.3C(4) of the 1971 Act and the Court of Appeal's analysis of its effect in JH, namely that "there can be only one application for variation of the original leave, and there can only be one decision (and, where applicable, one appeal)" (JH at [35]), precludes any continuation of the leave to remain aspect of the 2011 application. I shall refer to this as 'the statutory argument';
b) Second, the Defendant's Guidance precludes there being more than one form of leave being granted at any time, and that means that as soon as the asylum claim was made it necessarily had the effect of replacing the application for leave to remain. I shall refer to this as the 'Guidance argument'; and
c) Third, it is said that the Claimant's approach would result in multiple variations of the original application and a later asylum claim, all of which would lead to multiple decisions, multiple appeals and an artificially extended right to remain. In other words, there would be a risk of abuse with the Claimant's approach. I shall refer to this as 'the abuse argument."
(2)(a) The statutory argument
(2)(b) The Guidance argument.
"…[I]t should not be assumed that an applicant wishes to withdraw the original grounds simply because they appear incompatible with later grounds. For example, if a person asks for leave to remain as a foreign spouse after an initial application to remain as a student, it may well be that both applications should be considered, since it may be necessary to make a decision on the student point as well as the marriage grounds."
"8 Claimant's credibility
(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies.
…
(5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification."
(2)(c) The abuse argument
"49 My principal concern during the course of argument was that, whereas the appellant in the present case is plainly genuine, the remedy proposed might be open to abuse by unscrupulous applicants, who would make repeated applications for variation as a means of prolonging indefinitely the process put in place to adjudicate finally upon their claims. It seemed to me, however, that Mr. Cox had several compelling arguments against such an outcome. The first, of course, is that identified by My Lord in paragraphs 36 of his judgment. The second is that any variation application requires the payment of a substantial fee, a fact which, Mr. Cox argued, was, of itself, likely to prove a substantial disincentive. In any event, it seems to me that these two factors, either jointly or severally, are amply sufficient to prevent abuse."
(2)(d) Conclusion in respect of variation
(3) Did the 2013 decision amount to a determination of the 2011 application as varied?
… requiring a person to be given written notice where an immigration decision is taken in respect of him.
"(2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state –
(a) that there is a right of appeal under that section, and
(b) how and when that right may be exercised."
(1) A notice given under regulation 4(1) is to—
(a) include or be accompanied by a statement of the reasons for the decision to which it relates …
(3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of—
…
(c) the grounds on which such an appeal may be brought; and
(d) the facilities available for advice and assistance in connection with such an appeal. …
(4) … the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax….
"39 … Whilst it is true, as Mitting J said in paragraph 20 of his judgment (paragraph 22 above), that the assertion in the Notice that the Appellant did not have an in-country right of appeal did not entirely deprive him of an effective right of appeal, it did deprive him of a valuable right: the right to pursue his appeal in-country, see paragraph 28(d) of MK (paragraph 29 above).Section 105(2) enables regulations to be made which provide that a notice of decision must state, not merely that there is a right to appeal, but also how that right may be exercised. (paragraph 15 above)
40 It is not surprising that a notice of decision under the Regulations must contain advice, not simply as to whether there is a right of appeal against the notice, but also as to whether the appeal can be brought in-country. The importance of the right to bring an appeal in-country is demonstrated by the fact that Parliament has prescribed in detail in section 92 of the 2002 Act the kinds of appeal which may be brought while the appellant is in the UK, and has made provision in section 94 for a certification process which removes that right where an appellant's claims are clearly unfounded (paragraph 19 above).
41 The importance of compliance with the notification requirements in paragraph (3) of regulation 5 is underlined by paragraphs (6) and (7) which provide for re-service of the notice containing the advice required by paragraph (3) in those cases where, initially, paragraph (3) need not be complied with. Against this statutory background, applying Lord Steyn's approach in Soneji (see paragraph 21 above), I consider that Parliament would have intended that a failure in a notice of decision to comply with the requirement to advise an appellant that he was entitled to an in-country right of appeal would render the notice invalid.
42 The Court's response to such invalidity would normally be to quash the notice, unless it was satisfied that there had been substantial compliance with the requirement: eg because the Appellant had been made aware by other correspondence from the Respondent that he did, in fact, have an in-country right of appeal, because the First-tier Tribunal had accepted an in-country appeal from the Appellant, or because he had been allowed to present his appeal in the UK having been permitted to re-enter the country to do so."
E. Ground 3 – Lawfulness of Detention.
(1) Was the detention unlawful?
"66 … A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive actultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. Per Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12."
(2) The assessment of damages
"95 The question here is simply whether, on the hypothesis under consideration, the victims of false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied …, it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages." (Emphasis added).
"8 … There is now guidance in the cases as to appropriate levels of awards for false imprisonment. There are three general principles which should be born in mind: 1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant: see the leading case of Thompson v Commissioner of Police [1998] QB 498 at 515A and also the discussion at page 1060 in R v Governor of Brockhill Prison Ex Parte Evans [1999] QB 1043 ; 2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration: see Thompson at 516A. A global approach should be taken: see Evans 1060 E; 3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons: (i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance: Thompson 515 E-F.
9 In Thompson the court gave specific guidance (515 D-F) to the effect that in a "straightforward case of wrongful arrest and imprisonment" the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000. That case was of course decided more than ten years ago and, while not forgetting the imperative that damages should not be assessed mechanistically, some uplift to these starting points would plainly be appropriate to take account of inflation. Mr Singh for the respondent Secretary of State before us commends in particular the decision of Mr Kenneth Parker QC, as he then was, in Beecroft v SSHD [2008] EWHC Admin 3189 That is a helpful decision. It is very different on the facts from the case before us and it is right to say, as indeed Thompson itself makes clear, all these cases are fact-sensitive."
a. R (NAB) v Secretary of State for the Home Department [2011] EWHC 1191 ("R (NAB)"): In that case there was an award of £75 per day for unlawful detention of 82 days falling at the end of a lawful period of detention. Irwin J said as follows:
"15 In Muuse -v- Secretary of State [2009] EWHC 1886 (QB) John Leighton Williams QC, sitting as a Deputy High Court Judge, awarded £25000 in basic damages for approximately 126 days unlawful detention under the immigration legislation. However, it is necessary to read closely the facts of that case and to understand the enormous impact of detention on that detainee. It is also a case where the outrageous treatment offered to the detainee clearly induced fear and resentment at a very high level.
16 Equally in B -v- Secretary of State for the Home Department [2008] EWHC 3189 (Admin) , Kenneth Parker QC, sitting as a Deputy High Court Judge, awarded basic damages for unlawful detention over a period of about 6 months in the sum of £32000. Once again the behaviour in that case and the impact upon the detainee is of a different nature and extent to the facts here.
17 Closer to the facts in the instant case, it appears to me, is the case of R -v Governor of HMP Brockhill ex p Evans [1999] QB 1043 There a straightforward miscalculation of release date meant that a prisoner spent 59 additional days in prison at the end of her sentence. There was no illegality behind her entry into custody. The element of avoiding any disruption of ordinary life did not arise. She remained in familiar surroundings for too long and without realising until the end that her detention had been unlawful. All of those factors must have been reflected in the very much lower award, calculated at a rough daily rate, than in either of the two previous examples I have quoted.
18 What are the critical factors affecting this case? The unlawful detention carried no "first shock" and no disruption of an otherwise ordinary life in the community. By the time illegality arose, the Claimant had already sustained the effects of a long period of continued detention. I bear in mind that this did include some impact on his mental health, but there is no evidence that the additional 82 days of detention had any identifiable incremental impact in those terms. The unusual situation here was that the Claimant chose detention in the United Kingdom over freedom in Iran. For the reasons I have given that does not impact upon the illegality, however in my judgment it does mean that the appropriate level of damages must be very much lower than in most of the reported authorities and it seems to me should be markedly lower even than the appropriate compensation for a prisoner in the position of Ms Evans.
19 Doing the best I can I award the Claimant compensation of £75 per day, a total award of £6,150."
b. NS v Secretary of State for the Home Department [2014] CSIH 91, where the Inner House of the Court of Session upheld an award of approximately £82 per day for a period of unlawful detention following lawful detention."
"14 I maintain that had the Secretary of State not erred in treating me as an overstayer that I would never have been detained. This was a shock to have my life, liberty and freedom breached. My experience of detention was considerably stressful and for this reason I do request that I am compensated for what was unlawful detention"
F. Ground 2 – Fresh claims
G. Conclusion
Note 1 Of course, this is predicated on the second application having the effect of either withdrawing the first application or varying it. The Court of Appeal in JH did postulate a third possible outcome, namely that the second application neither withdraws nor varies the first. However, the Court of Appeal did not expand upon what that third possibility might involve or when it might arise and neither party argued for a third outcome here. [Back]