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||Neutral Citation Number:  EWHC 501 (Admin)
||Case No: CO/4875/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||30 July 2014
B e f o r e :
Judge Anthony Thornton QC
Sitting as a deputy judge of the High Court
|| Radha Naran Patel
||Secretary of State for the Home Department
Ms Shivani Jegarajah and Ms Amanda Walker (instructed by Urvi Shah, Solicitor) appeared on behalf of the Claimant
Ms Jacqueline Lean (instructed by The Treasury Solicitor) appeared on behalf of the Defendant
Hearing date: 18 October 2013 and post-hearing submissions
HTML VERSION OF JUDGMENT
Crown Copyright ©
- This summary forms no part of the judgment.
- The judgment concerns the claimant's claim for substantial general, aggravated and exemplary damages for false imprisonment and damages under articles 5, 8 and 14 of the Human Rights Act.
- These damages were claimed for her unlawful detention, for the malicious and deliberate bullying and ill-treatment that she suffered when she was interrogated in detention, for the concoction and fabrication of admissions that she was alleged to have made in interviews which were known by the interviewing IO to be false and the opposite of what she was answering and for her unlawful detention that was ultra vires, imposed for an ulterior purpose, whose imposition was an abuse of power and the decision for which was unreasonable, irrational and taken without considering what should have been considered and having considered what should not have been considered.
- These damages were also claimed for her treatment following her detention. She was unlawfully released from detention on temporary admission which she should have been released with 6 months leave to enter. She was then subjected to a series of unlawful actions and decisions whose ulterior and unlawful purpose was to mislead the FtT and the Administrative Court, to cover up the unlawful her which would retrospectively but unlawfully have validated those detention decisions.
- As a result of all of these unlawful actions, omissions and decisions, the claimant's claim succeeds and she is awarded a total of £110,000 in general and aggravated damages and as damages under the HRA and a further £15,000 in exemplary damages.
||Entry Clearance and Leave to Enter
||8 - 18
||Preliminary check point interview
||Decisions to suspend and temporarily detain
||Temporary detention inquiries
||Unofficial bullying interviews
||Refusal and immigration detention decision
||24-hour detention decision
||CIO Davies's explanation for refusal and detention decisions
||Refusal to withdraw decision
||Radha's JR claims
||Radha's time in immigration detention
||CIO Khan's withdrawal and temporary admission decision of 28 May 211
||FtT second appeal and explanatory statement
||Fresh decision issued by CIO Khan dated 8 August 2011
||SSHD's acknowledgement of service
||Third FtT appeal
||The renewed application for permission
||Radha's grant of leave to enter and the return of her passport
||217 - 220
||Substantive JR hearing
||221 - 230
||Summary of the Relevant Legal Principles
||Basis of claim
||False imprisonment, wrongful detention and protected rights under Articles 5, 8 and 14 of the ECHR
||Employment, work and assistance
||Different purpose and change of circumstances
||Scope of the claim
||Burden and onus of proof
||Issue estoppel and abuse of process
||Lawfulness of CIO Khan's decision and actions on 28 May 2011
||Effect of the second FtT appeal decision dated 5 July 2011
||Lawfulness of decision dated 8 August 2011
||Findings of Fact
||276 - 315
||Radha's grant of entry clearance
||Preliminary check point interview
||Interviews and investigations between 19.45 and 22.30
||The further interview
||SSHD's subsequent decisions and actions
||The 24-hour review
||The refusal decision of 25 May 2011
||CIO Khan's withdrawal decision dated 28 May 2011
||The explanatory statement
||The second FtT appeal
||Acknowledgement of service
||Third FtT appeal
||Further steps in the judicial review and the return of Radha's passport
||Core findings of fact
||Damages and Declarations
||The SSHD's response
||Radha's entitlement to claim for the post-detention unlawful conduct
||The heads of damage
||The inter-relationship between damages for unlawful detention and for breach of section 6 of the HRA
||General and aggravated damages for false imprisonment
||Special damages for false imprisonment
||334 - 335
||Damages under section 6 of the HRA
||Conclusion recoverable damages
||Costs of judicial review
||347 - 348
HH Judge Anthony Thornton QC:
- This judicial review claim is brought by Mrs Radha Naran Patel ("Radha") against the Secretary of State for Home Affairs ("SSHD") with the permission of Mr Clive Lewis QC granted at a hearing on 16 March 2012. Because Radha's younger sister Miss Hansha Patel ("Hansha") and her younger brother Mr Laxman Patel ("Laxman") are involved in the factual background to this claim, I will refer to them throughout as, respectively, Radha, Hansha and Laxman.
- Radha claims declarations that she was falsely imprisoned and unlawfully detained by the SSHD between 23 and 28 May 2011 and was the victim of malicious and deliberate unlawful conduct by at least one immigration officer ("IO") and one chief immigration officer ("CIO") which caused or was directly related to that detention and which amounted to an infringement of her rights under articles 5, 8 and 14 of the European Convention on Human Rights ("ECHR"). She also claims general, aggravated and exemplary damages for false imprisonment and unlawful detention, damages under section 6 of the Human Rights Act ("HRA") for breaches of her ECHR rights and declarations connected with these claims.
- Radha's principle allegations are in summary that her leave to enter the UK was unlawfully suspended and then unlawfully cancelled, she was unlawfully refused entry to the UK, was unlawfully temporarily detained pending further investigations and a further interview and then unlawfully detained pending her removal. She was also the subject of subsequent unlawful decisions taken by Border Force and the United Kingdom Border Agency ("UKBA") with the authority of the SSHD on 24 May 2011 (the 24-hour review), 25 May 2011 (the refusal to withdraw the cancellation and refusal decisions) and 28 May 2011 (the withdrawal of the cancellation and refusal decisions), 25 June 2011 (the issue of the explanatory statement), 8 August 2011 (the change of circumstances decision) and 1 October 2011 (the reissue of the explanatory statement). These decisions were all taken unlawfully, maliciously and knowingly without cause on the basis of concocted evidence and without justification.
- As a result of this series of unlawful acts and omissions, Radha was unlawfully detained between 23 and 28 May 2011, was subjected to bullying and harassing conduct whilst in detention, had her passport unlawfully impounded from 23 May 2011 until 16 March 2012 and was unlawfully released on temporary admission between 29 May 2011 until 16 March 2012 despite having an entitlement to the grant of leave to enter. She was then harassed by a series of unlawful acts and omissions whilst conducting two successive First-tier Tribunal ("FtT") appeals and this judicial review. These three pieces of litigation were directly concerned with her unlawful detention and the other related unlawful decisions. She was unable to leave the United Kingdom ("UK") for 5 months after the termination of her original leave to enter had expired due to that harassing conduct, to the need to remain in the UK whilst her FtT appeals and her application for permission to apply for judicial review were pending and to the impounding of her passport.
- For this series of unlawful acts and omissions, Radha claims general, aggravated and exemplary damages for her unlawful detention, for the direct consequences of that unlawful detention and under the HRA for various breaches of the ECHR.
- The SSHD disputed each of these allegations. However, it took no part in either of the FtT appeals, it did not address the substance of these allegations in its summary or detailed grounds of defence and it only belatedly served limited evidence in the judicial review that merely peripherally addressed the substance of these allegations.
- In those circumstances, I have had to approach Radha's claims in four stages. Firstly, I have summarised and commented upon the evidence that was adduced for the hearing of this judicial review in some detail, Secondly, I have made relevant findings of law and fact which are based on my summary of and comments about the evidence, thirdly I have reached conclusions and have made findings about Radha's allegations and fourthly, I have addressed Radha's claims for damages and declarations.
2. Entry Clearance and Leave to Enter
- It is first helpful to summarise the relevant statutory and other legislative provisions relating to entry clearance and leave to enter which are remarkably convoluted. They have been thoroughly analysed in the decision of the Court of Appeal in SSHD v Boahen which I have relied on extensively in preparing this summary.
- Radha is an Indian citizen and she and her husband and two children are permanently resident in India. The requirements for entry into the United Kingdom ("UK") by a citizen of a country such as India that is listed in appendix 1 to the Immigration Rules ("IRs") were to be found in three legislative sources that have to be read together:
(1) The Immigration (Leave to Enter and Remain) Order 2000 ("the Order") made under sections 3A and 3B of the Immigration Act 1971 ("IA");
(2) Schedule 2 to the IA; and
(3) Paragraphs 320, 321 and 321A of the IRs.
An entrant to the UK from an appendix 1 country is known as a visa national, entrants generally are usually referred to as passengers and their arrival point in the UK as a port of entry.
- Four of the essential features of this legislative scheme are relevant to this case. These are:
(1) In order to enter the UK, a visa national had to be the holder of an entry clearance or visa obtained from outside the UK before arrival which was stamped in their passport. The visa national had to have been granted leave to enter. This was obtained as part of the entry clearance but, if it had been cancelled, it could only be granted by an immigration officer ("IO") at the port of entry on a discretionary basis.
(2) Entry of visa nationals was regulated by IOs exercising their extensive powers that include investigation and the cancellation of that person's permission to enter.
(3) The ground defined in the Order as entitling recourse to these supervisory powers, that was relevant to this case, was that the purpose in arriving in the UK was different from the purpose specified in the entry clearance. The other relevant ground, which was defined in both schedule 2 and the IRs, was that there had been such a change in the circumstances of the visa national's case since leave to enter was given or which had removed the basis of the visa national's claim to admission such that that entry clearance or leave to enter should be cancelled or leave to enter should be refused.
(4) If the purpose specified in the entry clearance was to visit the UK or for a family visit to the UK, the passenger holder of entry clearance was prohibited from taking paid or unpaid employment. An intention on entry to take such employment would normally amount to a different purpose to that specified in the entry clearance.
- A visa national had to apply to a locally-based Entry Clearance Officer ("ECO") for entry clearance. In this case, the ECO was based in the Deputy High Commission in Mumbai. Before issuing an entry clearance, the ECO had to be satisfied that the requirements governing its issue set out in IR 41 had been or would be complied with. If he was so satisfied, he had to issue an entry clearance with any conditions inserted on it by stamping it into the visa national's passport.
- The entry clearance had to comply with the requirements of the Order and if it did, it had effect as leave to enter the UK on an unlimited number of occasions. One of those requirements was the need to specify the purpose for which the visa national wished to enter the UK. In Radha's case, the stated purpose in her entry clearance was to make a family visit to the UK. Entry clearance for those visa nationals such as Radha whose purpose was to enter the UK as a general visitor was ordinarily valid for six months. An entry clearance would be subject to conditions of a kind authorised by section 3 of the IA and these should be endorsed on it. A condition that was required by IR 41, and the one which plays a central role in this case, was ordinarily expressed as "No Work" in the visa. This wording was shorthand for the restrictive condition contained in IR 41(iii) which stated that the holder of that type of visa did not intend to take employment in the UK.
- On arrival at the UK port of entry, in this case Terminal 4 at Heathrow, the visa national passenger had to present her passport in which the visa was stamped to an IO for examination. In Radha's case, the IO first had to consider whether the passenger was seeking entry for a purpose other than that specified in the entry clearance. If so, he was required to consider whether to cancel leave to enter on that ground. If the entry clearance was not cancelled on that ground, he then had to consider whether there had been a change in circumstances.
- In considering these and all other relevant matters, the IO was provided with extensive powers of examination of the visa national who had arrived with leave to enter which was in force but which had been given to him before his arrival These powers included the power, since Radha's leave to enter derived from an entry clearance, to examine her for the purpose of establishing whether that leave should be cancelled on the grounds that her purpose in arriving in the UK was different from the purpose specified in the entry clearance and whether her leave to enter should be cancelled because there had been such a change in the circumstances of her case since that leave was given that it should be cancelled.
- Ministerial authorisation under the Race Relations Act 1976 allowed passengers from a number of countries including India to be subjected to a more rigorous examination by an IO at a port of entry than other passengers in the same circumstances, a practice which authorised targeted further examinations and other measures which would otherwise have amounted to unlawful discrimination for someone such as Radha who was of Indian origin and an Indian subject. The powers covered by this authorisation were those set out in schedule 2 to the IA including the power to submit the visa national to a more rigorous further examination once her entry clearance had been suspended, to examine and impound her documents and to search and detain her and impose conditions on her temporary admission. These measures however had to be conducted fairly and any further interview had to be conducted in accordance with the recommendations contained in the Border Force Operations Manual covering Immigration Interviews.
- On the basis of what she was reported to have said during her interviews following her arrival at Heathrow, Terminal 4, Radha was considered by the IO who examined her to be seeking entry for the purpose of taking paid employment to sew curtains which was a different purpose from the purpose specified in her entry clearance and, in consequence, it was decided that her leave to enter would be cancelled. This decision was withdrawn on 28 May 2011 and Radha was discharged from immigration detention and granted temporary admission. On 8 August 2011, the SSHD issued a further decision which "largely reflected the previous notice of refusal" which was to the effect that Radha was likely to breach both the condition prohibiting her from taking employment and that requiring her to leave the UK before her six-month leave to enter had expired, that that constituted a change of circumstances since the granting of her entry clearance and that her leave to enter was cancelled.
- The two decisions were, however, different. The first decision was that her purpose in entering the UK was different from the purpose stipulated in her entry clearance. The only enforcement decision that an IO could have taken for that decision was to cancel Radha's leave to enter pursuant to the powers provided to him by schedule 2 of the IA. That decision also automatically resulted in the cancellation of her entry clearance since the entry clearance had effect as leave to enter. Radha was then refused leave to enter under paragraph 320(5) of the IRs since she no longer had a valid entry clearance issued for the purpose for which entry was sought. Although the refusal of leave to enter was an immigration decision, it did not carry a right of appeal because it had been decided that her purpose of entry specified in the withdrawn leave to enter was not the same as that upon which her application for leave to enter was based. However, since Radha was seeking to appeal on human rights grounds against the refusal of leave to enter, she had an in-country right of appeal. The second decision was based on there having been a change of circumstances since entry clearance had been granted. In such cases, the IO could cancel the visa national's leave to enter which was a decision carrying an in-country right of appeal.
- Since the decision to refuse admission was an immigration decision, Radha had to be given notice of the decision by being served with it or being sent it. The notice had to be accompanied by a statement of the reasons for the decision and, if the legality of the decision was challenged, that challenge had to be decided by reference only to the reasons stated in the decision. The decision also had to refer to her rights of appeal, in her case the decision should have stated that she had no right of appeal save, if it was applicable, a right of appeal on human rights grounds.
3. The Evidence
- Radha's family background. Radha was born on 13 July 1980. She had lived her entire life in Gujarat State, India and in May 2011 was living in Godpar. Her husband was, in 2011, working temporarily as a plasterer in the Seychelles. They had a son who was 9 in 2011 and a daughter who was then aged 7. Both attended a privately funded day school and were being looked after by their paternal grandparents in Godpar whilst both their parents were absent abroad. Radha's parents and Hansha and Laxman had moved permanently to England in March 2003. Radha's paternal grandfather was British and through him her parents and Hansha had acquired British citizenship and Laxman had acquired indefinite leave to remain in the UK. Her parents had bought a three-bedroom house in Harrow, Middlesex where the four family members with Laxman's wife and their young child all lived.
(2) Entry clearance
- Radha's application for entry clearance as a visitor. In 2010, Hansha invited Radha to England to stay as a guest with her family on an extended family visit and coupled that with an offer to sponsor her and pay for her return airfare and her upkeep whilst in the UK. Radha accepted this invitation and planned to make the trip on her own. Since her husband was working in the Seychelles and her two children were at a private school with short holidays, she agreed with her parents-in-law who lived nearby in Godpar that they would care for them whilst she was staying with her family in the UK.
- On 8 August 2010, Radha applied to the British High Commission in Mumbai for a 6-month general visitor's visa and entry clearance for that purpose under Rule 41 of the IRs. This provided that:
"41. The requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor are that he:
(i) is genuinely seeking entry as a general visitor for a limited period as stated by him, not exceeding 6 months or not exceeding 12 months in the case of a person seeking entry to accompany an academic visitor, provided in the latter case the visitor accompanying the academic visitor has entry clearance; and
(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits; and
(iii) does not intend to take employment in the United Kingdom; and
(iv) does not intend to produce goods or provide services within the United Kingdom, including the selling of goods or services direct to members of the public; and
(vi) will maintain and accommodate himself and any dependants adequately out of resources available to him without recourse to public funds or taking employment; or will, with any dependants, be maintained and/or accommodated adequately by relatives or friends who can demonstrate they are able and intend to do so, and are legally present in the United Kingdom, or will be at the time of their visit; and
(vii) can meet the cost of the return or onward journey; and
(viii) is not a child under the age of 18.
- Radha's stated purpose for this visit was to pay a family visit to her parents, her sponsoring sister and her brother for three months. The application was submitted with a sponsor's statement from Hansha, a joint statement from Radha's parents and documents supporting Radha's and Hansha's stated financial circumstances.
- Before this application was considered by an ECO, a Verification Report was completed on 16 August 2010. This verified the particulars of Radha's family members in the UK contained in her application. The verification process included a telephone interview with Hansha who was reported as stating that Radha was her elder sister and that she was to make a family visit to her UK-based family and would stay in the UK for three months or for less than three months.
- The ECO refused Radha's application in a decision was dated 18 August 2010 because she had submitted insufficient evidence of the current state of her bank accounts and of her receipt of payments from her husband whilst he was working in the Seychelles in support of her and their two children. The decision failed to consider Hansha's financial circumstances and her ability to finance both her travel to and from the UK and her maintenance whilst staying there.
- Radha successfully appealed that refusal to an FtT sitting in London. Laxman acted for her and presented this first of her three appeals that her case has generated ("the first appeal"). The immigration judge's determination promulgated on 11 March 2011 agreed with the ECO's conclusions so far as the evidence of her financial circumstances was concerned but held that the ECO had erred in not considering the financial circumstances of her sponsor Hansha. The judge found:
There has however been no challenge to the substance of the sponsor's financial circumstances and consequently I am satisfied that there is no reason to reach any conclusion that there will be sufficient funds for her to be maintained and accommodated whilst in the United Kingdom.
12. [Radha] intends to leave her two children behind in India and I can see no reason to reach the conclusion that she is likely to want to remain in the United Kingdom longer than the period allowed by her visa."
It followed that the FtT judge had clearly found that Radha's purpose in obtaining a visa was to visit her family and that IR 41 had been fully satisfied including the requirements that she intended to leave the UK at the end of her visit, that she did not intend to take employment and that her sponsor and family in the UK could maintain her adequately without the need for her to take employment.
- Radha's visa. The hearing bundle did not contain a copy of the visa or the wording of the conditions attached to it. However, all the relevant documents that were provided by the SSHD stated that these conditions included the critical one which provided laconically but dramatically "No Work". It was accepted by the SSHD and was the clear view of all the IOs concerned with Radha's case that that condition had the same meaning as, and was intended to give effect to, the requirement of IR 41(iii) that Radha could not "take employment in the United Kingdom" and that that prohibition embraced both paid and unpaid employment.
(3) Preliminary check point interview
- Travel to and arrival at Heathrow. Once Radha's had received her passport back from the Deputy High Commission with her entry clearance stamped in it, Hansha sent her the return airfare. Radha gave the airfare money to her father-in-law to buy her tickets for her. The tickets that he bought were for her to fly by Kingfisher Airlines from Mumbai to Heathrow on 23 May 2011 and to return on 3 October 2011. Radha left the decision as to the dates of both her flight to the UK and her return flight to her father-in-law. Since Godpar is over 300 miles from Mumbai, her journey from her home to Heathrow via Mumbai involved her in having to travel non-stop for nearly 24 hours before she arrived at Heathrow.
- Following her arrival at Heathrow at 18.04, Radha's evidence of what happened, as set out in her second statement, was as follows:
"2. On my arrival in the UK at London Heathrow
I was detained by the immigration officer for questioning. As my English is poor I was asked questions in Hindi (Indian language) by another immigration officer who was present at another desk. However my Hindi is also poor as my mother tongue is Gujarati. After initial questions at the desk, I was asked to wait aside for further interview. After the wait for few minutes I was taken to another room where I was once again asked to wait."
- Preliminary check point interview. In order to leave Terminal 4, Radha presented herself to an IO located at a primary check point. IO Newton and CIO Davies, the two witnesses whose statements were adduced by the SSHD in this judicial review, identified that IO as being IO Reeves. However, the explanatory statement is clear that that IO was IO Newton and there is no other independent evidence as to the identity of that IO. There is therefore considerable doubt as to whether IO Reeves was involved in any way in Radha's case following her arrival at Terminal 4. If the evidence showed that that IO was in fact IO Newton, his credibility would be destroyed and Radha's case would be greatly strengthened.
- The IO at the preliminary check point examined both Radha's passport, her visa that was stamped into it and her landing card that she had filled out before arriving at Heathrow. He then decided to ask her some questions in what is known as a preliminary check point interview. There was no evidence as to why the IO decided to stop and question Radha but given the IO's entitlement to randomly stop and question passengers entering the UK from India, it is likely that this was a random stop arising from a suspicion that Radha, being an unaccompanied women in her thirties seeking to enter the UK from India, might well be seeking unlawful entry in order to obtain employment and overstay her visitor's visa. The IO retained her landing card. He also took her passport which was impounded by the SSHD who kept it until it was returned to her on about 14 March 2012. A preliminary check point interview was then conducted.
- Significance of the preliminary check point interview. The answers that Radha was alleged to have given to questions put to her during the preliminary check point interview were summarised in notes written on the back of her landing card. These alleged answers included a crucial admission that, had she provided it voluntarily and in a reliable manner, justified the decisions to suspend her leave to enter and to detain her temporarily for further inquiries and questioning. This was because the admission as recorded was to the effect that her purpose in entering the UK was different from her purpose stated in her visa and that she was intending to take paid employment sewing curtains. Her reported answers also raised a doubt as to her intention to leave the UK before her visa expired.
- It follows that the following questions need to be answered:
(1) Who conducted the preliminary interview;
(2) What reliance can be placed on the statements in the explanatory statement that IO Newton conducted the preliminary interview and decided that her leave to enter should be suspended and that she should be temporarily detained;
(3) Who drafted the notes and when were they drafted;
(4) Were the notes a reliable guide to what Radha had stated;
(5) What was the reasonable meaning of the relevant admissions as recorded in the notes; and
(6) Did the person who drafted the notes concoct or invent any of the crucial passages in the notes?
- The preliminary interview notes. The notes written on the back of Radha's landing card read as follows:
"Visiting parents + siblings GBR nationals.
Staying 3 months but return ticket for 03/10/11
Claims father-in-law booked ticket, now admits planned to come here for 5 months.
- sister paid for ticket (sews curtains) parents are cleaners.
- [Radha] is farmer/housewife.
- visa won on appeal; doesn't know why refused as brother dealt with application.
- will help sister sew curtains at home and will get paid; not sure how much but will be paid;
- married, son (10) daughter (7).
IS81@ 1845 S. Reeves, C. Norris.
It can be seen that, as noted, Radha had stated that she "would help her sister sew curtains at home" and that she "will get paid; not sure how much but will be paid". In doing so, she did not explain the nature of the help she was referring to or the payment she might receive or that there would be a direct link between the help to be given and the payment. Radha was not therefore reported to have said that she would be taking paid employment or paid work to sew curtains. If she was merely going to assist Hansha it was unlikely that she would be undertaking an employment relationship and if she was only going to help her, this was even more so given the family context involved, the fact that Hansha was intending to provide for her during her visit and the highly skilled nature of Hansha's work. Moreover, there did not appear to be anything suspicious in her answers to the effect that she intended to stay for 5 months or that her ticket was bought by her father-in-law. Her visitor's visa was for a maximum period of 6 months so that a change of plan involving a visit of 5 rather than 3 months was not of itself suspicious. It followed that, even if the notes provided a reliable guide as to what Radha had said, the admissions that she was reported to have made did not appear to have justified the conclusion that she was seeking to enter for a different purpose to that provided for in her visa or that she would be employed and would be unlikely to leave the UK when her visitor's visa expired.
Brother: [mobile phone no] Lakshman (sic)."
Who conducted the preliminary interview? As already stated, the only two contenders for the role of the IO conducting the preliminary interview were IO Newton and IO Reeves. IO Newton was the most obvious contender since he was named as the interviewing officer in the explanatory statement and the other available evidence also pointed to him as having been the interviewer. However, the notes in stating "IS81@ 1845 S Reeves, C Norris" have been relied on by IO Newton to demonstrate that IO Reeves conducted the preliminary interview and, with CIO Norris, took the relevant decisions that led to Radha's temporary detention at 18.45. Furthermore, both IO Newton and CIO Davies stated in their second witness statements without any further elaboration or explanation that the explanatory statement was subject to a "typographical error" in stating that IO Newton rather than IO Reeves had both conducted the preliminary interview and taken the relevant decisions to suspend and to detain.
What reliance may be placed on the explanatory statement? The weight to be placed on the explanatory statement in naming IO Newton as the interviewer depends to a significant extent on who drafted the explanatory statement and signed the original copy to signify the accuracy of its contents. In considering the authenticity and veracity of the explanatory statement, it is also necessary to consider the minute sheet dated 24 May 2011 that had been made and signed by IO Newton and the entry in the CID log that he had made in identical terms at the same time. These two documents purported to be a summary of all the events involving Radha's interviews and temporary detention including her preliminary interview, the interim detention decision recorded on an IS 81 form, the subsequent investigations, the further interview and the cancelation, refusal, detention and removal decisions. This document, in both form and content, suggested that IO Newton had been involved in all these events since they were entered up by IO Newton as one entry. Had IO Reeves undertaken the preliminary check point interview and issued the IS 81 form, he would have made a separate entry recording that fact on his own separate minute sheet and in the CID log.
This conclusion was potentially undermined by the entry in both documents that IO Newton's involvement with Radha started at 22.30. This note stated that the "case [was] handed to me at 22.30". There was nothing else in these documents that identified any other IO as having handled Radha's case prior to 22.30 and the logs or time sheets that would have shown who was initially handling her case, when IO Newton came on duty, what he was doing prior to 22.30 that evening and why he was chosen to take her case over after she had been in temporary detention for nearly four hours have never been disclosed if they had ever existed.
Furthermore, the redacted part of the landing card notes would probably have identified who the interviewing IO was but neither the words that were redacted nor the original landing card have ever been disclosed. This highly significant non-disclosure was explained by CIO Davies in his second witness statement as having occurred because the original landing card that contained the inscribed notes of the preliminary interview had been filed with the custodian of the holding room. This explanation as to the non-disclosure of Radha's original landing card with the full text of the redacted passage is not credible since the original landing card, having been filed with the custodian of the holding room, would have remained in the possession of the SSHD and would therefore have been readily accessible and available to be disclosed and inspected. CIO Davies's explanation appears to be both misleading and an attempt to gloss over a deliberate failure to disclose highly relevant evidence that supported Radha's case.
There is therefore every reason to suppose that the non-disclosure of the relevant logs, timesheets and the redacted passage on the landing card was the result of a conscious decision by IO Newton or CIO Khan to withhold documents that would have undermined the SSHD's case and that these documents would have confirmed that the explanatory statement was accurate when it stated that IO Newton was the responsible IO for Radha's case throughout. This conclusion is reinforced by the complete absence of any minute sheet, CID entry or witness statement by IO Reeves or of any independent corroborative evidence that he had had any involvement in Radha's case.
Turning to the explanatory statement, the signature of the CIO on the signed the original explanatory statement document is "M Khan". The signature is legible and it is therefore possible to identify that signatory as being the same CIO who on 28 May 2011 issued the decision withdrawing the SSHD's earlier decision of 24 May 2011 refusing Radha leave to enter and who was intimately involved in the decisions relating to the SSHD's role in both second and third FtT appeals and in the preparation of the SSHD's outline and detailed defences in this judicial review.
The second "IO's Signature" is virtually illegible but if this signature is compared with the initialled part of two documents said by IO Newton and CIO Davies in their second witness statements to have been initialled by IO Newton, it appears that the signature on the explanatory statement and the initials on these documents were all made by the same person, namely by IO Newton. Similarly, if the initials are compared with the initials on two other documents said by IO Newton and CIO Davies to have been initialled by IO Reeves, the signature on the explanatory statement appears to have been made by the same person as acknowledged these two further documents. In short, IO Newton appears to have signed the explanatory statement and initialled all the relevant documents giving rise to the suspension of Radha's leave to enter and her temporary detention.
A yet further indication that IO Newton signed and helped to prepare the explanatory statement is that its contents revealed that someone with a detailed knowledge of everything that had happened throughout the period starting with Radha's arrival at the preliminary check point and continuing throughout Radha's temporary detention must have been involved in its drafting. CIO Khan had no involvement with Radha's case or her temporary detention whereas IO Newton is the only person to could have had a detailed knowledge of the entirety of her case and its investigation and interviews and the various decisions that were taken.
A final and particularly telling indication that IO Reeves was not the interviewing IO is that although IO Newton and CIO Davies asserted that the interviewing officer who took the decision to detain Radha was wrongly named as IO Newton and should have been named as IO Reeves, they gave no other details to explain or justify this assertion. It was obviously crucial to ascertain which IO had interviewed Radha and since IO Newton had apparently helped draft the explanatory statement, he was in a good position to explain the mistake. He was, however, silent on that matter and provided no explanation as to why IO Reeves had not made a statement explaining that he was the interviewing officer or why there was no document showing that IO Reeves was on duty at a preliminary check point in the early evening of 23 May 2011.
A yet further suspicious matter was disclosed by the IS 91 form which had to be prepared to record Radha's detention and also had to be served on her and its contents explained to her. It is not clear when this form was prepared and the evidence suggests that its contents were neither explained to her nor served on her. Finally, and very tellingly, she had not signed the acknowledgement box provided on the form. The lack of an explanation for these errors and omissions is very probably explained by IO Newton deciding that he wanted to hide the fact that he had conducted the preliminary interview and then issued Radha's IS 91 form recording her temporary detention. IO Reeves would have had no discernable motive to hide his involvement had he interviewed Radha and then decided to temporarily detain her.
For all these reasons, I conclude that the explanatory statement was prepared by IO Newton, that its contents were prepared by and authenticated by him, that he has not explained how he was mistakenly named in it as the IO who carried out the preliminary interview and took the decision to detain Radha for further interview and that there is no reason to doubt the accuracy of the contents of the explanatory statement that identified him as the IO who undertook these two functions.
Who drafted the notes and when were they drafted? There is no document that independently identified who wrote the notes on the back of Radha's landing card, conducted the preliminary interview or was responsible for carrying out such investigations, inquiries and interviews of Radha as took place between 18.45 when she was first detained and 22.30 when IO Newton contended in his witness statement that he took over her case.
The preliminary interview notes appear to state in the last line that CIO Norris and IO Reeves took the temporary detention decisions at 18.45 by issuing an IS 81. CIO Davies and IO Newton in their second witness statements dated 22 August 2013 stated that IO Reeves conducted the preliminary checkpoint or check desk interview and that the illegible initials of the initialling IO on the IS 81 standard form that implemented the decisions to undertake further investigations and temporarily detain Radha where those of IO Reeves. However, there is no other document that identifies either of these IOs as being involved in the preliminary interview or in writing up the notes or in Radha's temporary detention prior to 22.30 and neither of them submitted a statement that explained their respective roles in these events.
It is therefore not possible to identify from the direct evidence adduced at the judicial review hearing who wrote up the notes or when this was done. It is unlikely that they were written up whilst the interview was taking place by either IO Newton or WIO Menon and the notes do not state when they were prepared. The copy of these notes in the hearing bundle was one that was faxed on 17 June 2011 to the Treasury Solicitor to enable the summary grounds of defence to be drafted. It is not clear who faxed the document but it was within a bundle of 30 pages of documents being faxed that included the further interview notes and IO Newton's minute sheet recording the actions taken on 23 and 24 May 2011. The sender must therefore have been IO Newton or the file holder of all the documents held by UKBA at Terminal 4.
My conclusion is that the notes were written up by IO Newton after he had concluded Radha's case, that he wrote them up some hours after the preliminary interview had taken place and that he added the reference to the case being handed to IO Reeves and CIO Norris when he wrote up the notes but that neither officer had anything to do with her case. That would explain why there is no witness statement or any corroborating documents showing that either of these officers was involved and would also explain how notes of a standing and short interview came to be written up and why they contain no indication of their authorship or the time and location of being written.
Are the notes a reliable guide to what Radha stated in interview? Radha's mother language was Gujarati and she could also speak poor English and Hindi. Thus, the IO she presented herself to was unable to conduct the preliminary interview himself since he and Radha could not communicate to each other in English. The IO therefore took her over to WIO Menon who was located at another desk to interpret his preliminary check point interview. It is clear that this officer was called WIO Menon because her name was written at the top of the manuscript notes of the preliminary interview that were written down on the back of Radha's landing card in the space provided for that purpose.
Radha's evidence was that she and the interpreter spoke to each other in Hindi which was a language that she could barely speak. The landing card notes were at variance with this evidence since they appeared to state that WIO Menon and Radha conversed in Gujarati and not Hindi. This information was contained in the opening sentence of the notes but only these concluding words of that were legible:
in Gujerati (sic) WI/O Menon"
The earlier part of the sentence and the remaining part at the top of the page of notes had been redacted but it would seem that they stated that the interview was conducted in Gujarati and it is also likely that the redacted passage also identified the interviewing IO.
The explanatory statement dealt with the preliminary interview and it stated that the interview was conducted in Gujarati. It also stated that a Home Office interpreter had been used to translate the questions into Hindi and the answers into English although The explanatory statement is clearly in error in stating that the interpreter was a Home Office interpreter since WIO Menon was stated to be an immigration officer and not a professional interpreter. Moreover, had a Home Office interpreter been used, the interpreter's name and number would have been logged but no such log entry has been disclosed and there was no disclosure of the other documents that would have been available had such an interpreter been used which would have verified this evidence.
This information in the explanatory statement appeared to have been derived from the landing card notes. There was no other evidence of the language of the interview other than that given by Radha whose evidence throughout appeared to be both consistent and reliable. Given all the uncertainties of the provenance, accuracy, reliability and self-serving nature of the explanatory statement, I place little weight on its contents concerning the preliminary interview.
It follows that Radha's evidence in her witness statements and her oral evidence to the third FtT appeal is the only reliable and credible evidence about the language of the interview. I find that that language was Hindi and that the interpreter was a WIO who happened to speak Hindi. Since there is no evidence that WIO Menon checked that Radha could understand her or that she could understand WIO Menon, it is likely that Radha neither properly understood the questions she was being asked nor answered them in a way that was both accurate and accurately recorded. It follows that the notes summarising her answers were neither reliable nor accurate in material respects even if they had been written up at the time of the interview and were neither concocted nor tampered with.
What is the reasonable meaning of the relevant admission as recorded in the notes? In the explanatory statement, the report of this interview stated that [Radha] would "assist her sister in sewing curtains" and that "she would be paid for this assistance". There is no other evidence that Radha used the word "assist" which in context would have placed her intended relationship closer to that of being employed to sew curtains than that of helping to sew them. Equally, there is no evidence of the nature and extent of the help that Radha indicated she would provide Hansha with nor that any payment made by Hansha would be directly linked to that help. It is very possible, given her evidence in her witness statements, that she had stated that if Hansha was very busy sewing curtains, she would help Hansha out with the domestic work. It is also very possible that she stated that Hansha as her sponsor was intending to provide her with spending money in any event and that those payments would not be linked to any help she might provide to Hansha.
What is noted is, therefore, consistent with Radha stating that she would help Hansha as a family arrangement. Radha's case is however much stronger than that. She has always forcefully denied that she ever said that she intended to sew curtains for Hansha for payment or to take paid employment from or to work for Hansha for payment.
It is also very significant that the explanatory statement, in referring to Radha stating that her intention was to take paid employment, was at variance with CIO Khan's view noted in the CID log on 28 May 2011 when he withdrew the decision refusing her leave to enter. In the log, he explained his reason for withdrawing the cancellation of Radha's leave to enter as being that it would be difficult to sustain the cancellation decision since there was no employer to enter into an employment relationship with Radha and that whatever her arrangement was with Hansha, it would be likely to be seen as a family arrangement undertaken as part of her family visit.
It follows that the notes are wholly unreliable in stating that Radha said anything that could amount to an admission that she intended to help Hansha let alone take paid employment, that her noted admission does not bear the meaning that she was intending to seek employment and that, in any event, her otherwise unchallenged evidence was that she had forcefully denied any intention to help Hansha or to seek work or employment sewing curtains.
Did the person who drafted the notes concoct or invent any of the crucial passages in the notes? It is noteworthy that Radha was not given a copy of the IS 91 temporary detention notice to sign, that CIO Khan did not provide either a witness statement or an explanation as to how the error in the explanatory statement came to be made and that IO Newton was less than forthright in failing to explain how he came to be named in the explanatory statement which he helped to prepare and which he also signed up to and that CIO Davies airily dismissed this significant error if it be an error as being a mere "typographical error" when it was not that but a fundamental error.
Further evidence of IO Newton's involvement and intentions. There is no direct evidence that the initials on the IS 81 and IS 91 standard forms that confirmed the suspension of Radha's leave to enter and her interim detention were those of IO Reeves save for the self-serving assertion to that effect by IO Newton in his second witness statement. All the available evidence clearly pointed to IO Newton being the IO who was exclusively responsible for the interview and in obtaining the authorisation of CIO Norris for Radha's temporary detention.
Neither IO Newton nor any other IO ever explained to Radha that she was going to be further interviewed. IO Newton's minute sheet significantly stated: "18.45 hrs. IS81 served and explained". The significance of this statement is that it did not state who signed the IS 81 form, when it was signed or who served it nor what explanation was given, how that explanation was interpreted since an explanation in English would not have been understood in any event or where it was given. The IS 81 was not signed but merely initialled and the signatory's name was not written onto the document. It would seem that IO Newton decided to take the four actions recorded on the IS 81 without obtaining a CIO's authorisation and without explaining anything to Radha. It was only in his second witness statement that he identified the initials as being those of IO Reeves but there is no independent corroborating evidence to verify this fact.
So far as detention is concerned, the IS 91R detention form stated that detention was only to be used when there was no reasonable alternative available. The form also stated by way of a tick in the appropriate tick box that Radha should remain in detention because there was insufficient reliable information to decide on whether to grant her temporary admission or release and that this decision had been reached on the basis that she had failed to give satisfactory or reliable answers to an IO's enquiries. Although both reasons would explain why a further interview was considered necessary, neither explained why it was necessary to detain her temporarily. There does not appear to be any evidence that Radha would leave or attempt to leave whilst these enquiries took place or would fail to cooperate with IO Newton.
The IO initialling the forms or causing them to be initialled that recorded these decisions on the appropriate IS 81, 86, 91 and 91R forms then implemented them. Radha's evidence was that these decisions were not explained to her and she was not given copies of these forms. That evidence is corroborated by her not being asked to sign the acknowledgement box provided for on the IS 86 and 91R forms which are both blank on the disclosed copies of them. This also suggested that the forms were issued by IO Newton after completely finishing with Radha's case in the early hours of 24 May 2011.
No contact with Laxman. Furthermore, no explanation has ever been provided to explain why it was necessary to refrain from informing Laxman during the 4-hour period until 22.45 that Radha was being further interviewed and why no IO interviewed him at an early stage in Radha's temporary detention. IO Newton knew that he was waiting outside from what he had learnt during the preliminary interview and no reason was given for keeping Laxman in the dark or from permitting him to sit with her whilst the further enquiries took place.
The decision to suspend Radha's leave to enter and temporarily detain her. At the conclusion of the short preliminary interview, the notes were said by the SSHD's two witnesses to have recorded that IO Reeves and CIO Norris had decided to suspend Radha's leave to enter and to detain her temporarily in order to question her further and that this decision was incorporated onto the appropriate IS 81 standard form at 18.45. However, this part of the notes is contradicted by the explanatory statement which attributed the decision to suspend to IO Newton. Moreover, the suspension decision was recorded in the explanatory statement as having been based on Radha's admission that she was entering the UK in order to take employment sewing curtains and on her having stated that she intended to stay for three months although her return ticket was for a return flight to Mumbai five months later. This can be seen from this passage in the explanatory statement:
(4) Decisions to suspend and temporarily detain
"6. Officer Newton considered [Radha's] responses during the Primary Check Point interview and could not be sufficiently satisfied that [Radha] continued to satisfy the conditions of her entry clearance or would not breach the same conditions, with a particular emphasis placed on [Radha's] statements regarding her proposed employment with her sister."
The probable explanation for Radha's temporary detention is provided in the explanatory statement, namely that Radha was perceived as having admitted intending to assist and not just to help Hansha to sew curtains, an intention which a few lines later was further interpolated so as to be an admission to take employment with her sister and "as such" it was appropriate to require her to submit herself to further examination. Since that explanation was based on concocted evidence, the decision appears in fact to have been based on IO Newton's determination to detain Radha on the basis of her change of purpose even though there was no available evidence to suggest that that was her intention. In other words, he decided to use his powers of suspension and temporary detention in order to force her to sign a document that would enable him to have her removed even though there did not appear to be any evidence that suggested that she was seeking to enter for an unlawful purpose.
Thus, IO Newton decided that Radha's leave to enter should be suspended and that she should be temporarily detained and IO Newton then implemented the following five related decisions which were recorded on the following standard forms which were initialled with the same illegible initials which appear to have been placed on the various forms by IO Newton:
(1) Radha's leave to enter would be suspended until her further examination had been completed;
(2) She should be further examined to determine whether there had been such a change in her circumstances since her leave was given that it should be cancelled and to establish whether her leave should be cancelled on the grounds that her purpose in arriving in the UK was different from the purpose specified in the entry clearance;
(3) She should be detained following the suspension of her leave to enter pending the completion of her further examination and a decision on whether to cancel her leave to enter;
(4) She should be required to provide fingerprints; and
(5) Her passport and landing card would be detained.
Overall conclusion IO Newton's involvement in the preliminary interview, the notes and the temporary detention decision. My overall conclusion is that IO Newton was involved throughout, that IO Reeves had no involvement with Radha's interview and that IO Newton admitted his overall involvement by helping to prepare the explanatory statement that named himself as the IO who interviewed Radha and then signing that document in acknowledgement of his acceptance of the correctness of its contents.
It follows from this conclusion that the notes were not a contemporary record of Radha's preliminary interview. I also conclude that the passage that the SSHD principally rely on to justify the temporary detention and the decision to conduct a further interview, namely: "will help sister sew curtains at home", was never stated by Radha but was instead invented by IO Newton and made to look like an admission that she had made when he subsequently wrote up the notes. I finally conclude that the decision to detain he temporarily was taken solely because IO Newton was determined to refuse Radha leave to enter and wished to take her to a private interview room to force her to admit that she was unlawfully entering to take paid employment.
(5) Temporary detention inquiries
Temporary detention the reported enquiries. According to the explanatory statement, IO Newton first inspected Radha's CID entries in order to find out what information Radha had provided the ECO with as part of her application for entry clearance. There is no evidence of the precise timing of this inquiry but it is likely to have been one of the first inquiries that IO Newton undertook following Radha's temporary detention. The explanatory statement provided a summary of the ECO's decision and the FtT appeal decision and it is to be inferred that IO Newton acquainted himself from the CID of the contents of that ECO decision and the subsequent FtT appeal.
The explanatory statement also revealed that the CID contained details of the verification report of the telephone discussion between an ECO official and Hansha in August 2010. IO Newton consulted this as well and would have learnt that Hansha had been telephoned by someone in the Mumbai Deputy High Commission who was processing her application and that Hansha verified the authenticity of the application and the particulars of Radha's family members in the UK that it contained and that she would be sponsoring her visit. Hansha is reported to have stated that Radha would be staying in the UK for 'three months or less than three months'.
The explanatory statement then recorded that the ECO's refusal decision had been the subject of an appeal to the FtT but no details were given of the reasons provided in the FtT's determination for allowing the appeal although a copy of that determination was attached to the explanatory statement.
Interviews between 19.45 and 22.30 number and timing. The only evidence about what if any informal interviews occurred, which IO was involved and the timing of the events that occurred between 19.45 and 02.30 the following morning was provided by Radha. In relation to timing, Radha's evidence was that her first interview occurred at 22.30 and she was interviewed on and off at least 5 6 times thereafter. Those interviews included the formal further interview which it is clear from the disclosed documents was conducted by IO Newton. His evidence was that he came on duty and was assigned Radha's case at 22.30, that he spoke to Laxman at 22.45 and that the further interview was timed as having occurred for 52 minutes between 23.00 and 23.52. His minute sheet and hence the CID timed the setting of removal directions as being at 00.25, IO Newton's advising Laxman that Radha was to be returned to India and detained meanwhile at 00.30 and his signing off of the refusal decision at 01.11. Laxman's evidence was that his first discussion with an unidentified IO, who IO Newton accepts was himself, ended at about midnight and that he was not informed that Radha's temporary detention had been turned into immigration detention coupled with removal directions until 02.30 the following morning.
(6) Unofficial bullying interviews
Interviews between 19.45 and 22.30 timing of further interview. Radha's evidence did not directly distinguish the further interview conducted by IO Newton which was noted by him and the notes of which she signed from the other interviews that she stated occurred. The further interview notes suggested that the further interview was the last interview to have occurred and that it occurred between 23.00 and 23.52. On that basis, the other interviews, if they occurred, took place prior to 22.30 and that, if they took place, they must have been conducted by IO Newton even though he recorded in the CID that Radha's case was not handed to him until 22.30. On the other hand, the only evidence of the timing of the further interview and further actions is what CIO Newton recorded on the interview record and the CID so that it is possible that the further interview took place later.
Thus, it is possible that Radha was incorrect in suggesting that the first of her interviews in detention only started at 22.30. The only corroborated evidence is that she must have been informed of her detention and decision to remove her by 02.30 since Laxman states that that was when he received a telephone call to inform him of this fact. If Radha and Laxman are inaccurate in stating the times of the start of her interviewing and of his being informed of her detention, any such inaccuracy is neither surprising nor significant. Radha had no watch and was tired, confused and in an extremely agitated state. Her evidence is, therefore, entirely credible that she was unable to make accurate estimates of time or timescales. Similarly Laxman's evidence that he finished his conversation or meeting with the IO who spoke with him at about midnight appears to be inaccurate. The evidence suggests that he was about one hour out in that estimate and that it actually ended one hour earlier than he remembered. This too is not surprising. He had been waiting with no doubt growing anxiety for Radha since about 18.00 without any information as to why she had still not emerged from the arrivals procedures so that he too had probably lost detailed sense of time even though he had a watch.
Interviews before the further interview identity of the interviewer. Since the SSHD's evidence does not deal at all with the period between 19.45 and 22.30 or with the alleged interviews, there is no other evidence save Radha's that they took place, who carried them out or of the circumstances of the interviews and the behaviour of the interviewer.
The explanatory statement states that IO Newton examined the CID to obtain details of Radha's application for entry clearance and of her successful appeal following the ECO's refusal of her application. However, the absence of any other evidence as to what happened in the period of in excess of 4 hours between Radha's detention and IO Newton's record of the time at the start of her further interview provides further and potentially reliable evidence of his having been either the sole or the principal IO involved with her throughout her time in temporary detention including interviewing her in such additional interviews as took place.
Interviews between 19.45 and 22.30 No evidence from SSHD. The SSHD provided no other evidence or statement that addressed the question of whether these other interviews took place at all and why there was a four-hour gap between Radha's temporary detention and IO Newton starting work on her further interview or who was involved in her case prior to 22.30 when IO Newton's CID entry states that he took over her case. IO Newton's witness statements made no reference to them and by implication deny that they took place since he stated that he took over her case at 22.30. This is a significant statement since he did not state that that was when he came on duty. It would appear therefore that he was already on duty but he gave no evidence of when he came on duty or what he had been doing between coming on duty and 22.30. Equally, neither the explanatory statement nor the summary or detailed grounds of defence referred to these interviews so that, by inference, the allegations that they occurred at all and that Radha was bullied and harassed during them were also denied.
It follows that no evidence has been provided to explain why such interviews as occurred in this period were informal, the way in which they were carried, whether any bullying, shouting or other assertive behaviour occurred, why no record was made of them, who provided interpretation or whether it was provided over the telephone by a Home Office approved interpreter in the same way that IO Newton stated that his further interview was conducted. Finally, there was no disclosure of any relevant documents such as timesheets and detention records for the period between 18.45 and 22.30 relating to Radha and all those involved in her detention in this period and no statement was provided explaining why no relevant documents relating to this period were disclosed and why no witness had served a statement about it.
This is remarkable given that Radha has always maintained that she was interviewed on many occasions and has provided detailed evidence of her allegations that she was bullied repeatedly during them. Given the many occasions on when the SSHD could and should have provided all their evidence about the further interview and any other interviews, if only to deny that they took place or to disclose any records showing the log of Radha's detention and the identity of all those who had contact with her with their timesheets to show that they were on duty, it is not a sufficient or satisfactory explanation, nor is it correct, to assert that the SSHD did not think that the facts and circumstances of these further interviews were not in issue and that allegations about them were neither relevant nor were any longer being pursued.
Similarly, no explanation has ever been provided as to why Laxman was kept waiting outside the arrivals area for over four hours without anyone contacting him even though IO Newton was aware from the preliminary interview that he was waiting outside and of his mobile phone number which he had noted down on Radha's landing card.
Interviews between 19.45 and 22.30 Radha's evidence. Radha gave a detailed account of what she says occurred in that period. Her evidence was that she was repeatedly interviewed in a bullying and demeaning manner by an IO with a Gujarati interpreter. This IO must have been IO Newton who had detained her, had undertaken the further enquiries that had led to her temporary detention and who appeared to be in charge of that detention. If that inference is incorrect, the interviewing IO in charge of her temporary detention between 19.45 and 22.30 must have been some other unidentified IO. According to IO Newton, he took over Radha's case at 22.30 on the instructions of a CIO whose identity he had forgotten.
Radha's evidence about this questioning in her second statement, which was fuller than but wholly consistent with her first statement, was as follows:
I was very worried and anxious and the attitude of the officers did not help. I was also worried about my brother who had come to pick me up from the airport and must be waiting for my arrival as he would not be aware of the fact that I was not allowed to come out. After making me wait for around 4 hours I was interviewed at around 10.30 pm for the first time and was asked questions about my visit and the reasons behind it. As my English is poor I was provided with a Gujarati interpreter.
3. After asking me few questions for around 15 to 20 minutes the officer would go away and I would be left in the room alone for few hours before being interviewed again. This happened many times. As I did not have a watch on me, I am not sure of the minutes the interviews would last. But I was always asked more or less the same 10 to 15 questions. I must have been interviewed several times. The majority of the questions revolved around my intention of working in the UK. I denied these accusations and told them that I had only come to visit my family here in the UK.
4. The officer questioning me was not happy with my denials and kept on stating that my only intention was to come and work in the UK. I was asked about my family and how they acquired their status in the UK. When I informed the officer that they either had British nationality or permanent residence in the UK, I was asked why I had not applied for my British nationality as member of my family had done. I was accused that as I had not acquired the British nationality I was keen on coming and staying by any other means. I told them that as I was married at the time when my family applied for their British nationality I did not apply for it.
5. I told them I was happily married with two children back in India and had no intention of breaking any condition of my stay in the UK.
6. When I kept on denying the intention to work, I was repeatedly asked the same questions again and again and the officer kept on stating that my intention was only to work and earn money in the UK.
7. When I informed them that I am not even a skilled worker and I do not have any skill which would earn me money, they accused me that I would help my sister, who works as a curtain maker in a factory, to make curtains. I denied this accusation and told them that I do not know how to make curtains at all so how could I help my sister in her work? However, they were not ready to listen to me.
8. During the interview I also informed them that I was very tired as I have been travelling since more than 24 hours and was deprived of proper sleep and food and was in jetlag. I told the officer to let me go and meet my brother who would have come to pick me up. However he did not listen to me and kept on telling me that my only intention to come to the UK was to work as a curtain maker.
9. I told them that I would help my parents and sister in routine household work just like any daughter who comes to visit her parents' house would help however there is no question of receiving any monetary benefits by helping my parents or sister. Like a good guest I would help in the household work and reduce the burden on my host. This is Indian culture and I believe every sister would help her sister in any culture. The officer still did not believe me and kept on insisting that I would help my sister in her curtain making job.
10. After many interviews, I was informed that my entry to the UK is refused because I intend to work in the UK during my stay. I once again informed them that it is not true. I was also asked if I was aware of the fact that one cannot work in the UK while their stay on a visitor visa, to which I candidly told them that I was not aware of any such rules of visitor visa, however the rule is not applicable as I do not intend to work and earn money during my stay in the UK.
11. After the refusal I was informed that I do not have any right to appeal from within the UK and that I should leave immediately."
Details of these interviews were also given in the pre-action protocol ("PAP") letter written on her instructions by the solicitors she had just instructed, Urvi Shah during working hours on 25 May 2011, being the day after she had been detained. That letter contained these details:
"1. ... The applicant was interviewed at around 10.30 pm for the first time. Thereafter Mrs Patel was interviewed for many times on and off. The major questioning revolved around Mrs Patel's intention of working in the UK.
2. We have been informed by our client that during the interview she was provided by an interpreter and she was informed (not questioned) by the immigration officer that her intentions in the UK were to work. Our client was again and again told by the officer that the only reason she has arrived in the UK is to work. Our client kept on denying these accusations and asked the officer on what bases (sic) did the officer concludes that she would work.
3. During the interview Mrs Patel informed that her sponsor sister Ms Hansha Patel is working full time as a Taylor and she will be staying with her during her stay in the UK. The applicant's parents also live with her sponsor sister at [address given]. The applicant informed the officers that she was here on a visit to meet her parents and her sister.
4. However the officers for reasons know to them wanted the applicant to affirm that the applicant's sole purpose of arrival in the UK was to work.
5. After the interviews, the applicant's entry was refused and she has now been sent to Colnbrook detention centre till her removal from the UK."
Radha was therefore, according to her evidence, interviewed on many occasions and on each occasion the interview was conducted through a Gujarati interpreter. Since she does not refer to the interpretation being provided by a telephone link, it is to be inferred that her evidence was that the interpreter was in the room whilst each interview took place. In each of these interviews, she was shouted at and bullied and repeatedly told that she had entered the UK with the express purpose of obtaining paid employment sewing curtains and throughout she repeatedly denied that and maintained that her sole purpose in entering was to pay her family a family visit. Her evidence may be summarised by the submission contained in the renewed grounds for seeking permission to apply for judicial review which was:
"The whole process amounted to inhumane and degrading treatment, contrary to Article 3 or was a disproportionate violation of her privacy contrary to Article 8."
Interviews between 19.45 and 22.30 Summary grounds of defence. The SSHD's case in relation to these interviews was to be taken to be, given the complete silence about them or the allegation that they occurred, that they never took place. The only reference to Radha's allegations was to the effect that Radha had failed to particularise her complaints save for submitting that the processes employed were arbitrary, malicious or in clear excess of the IO's powers. These allegations were denied. The detailed grounds of defence did not address the allegations that she had been subjected to a repeated series of aggressive and bullying interviews.
(7) Further interview
The further interview Did IO Newton receive pre-interview briefings. IO Newton's stated in his first statement that he was handed Radha's case at 22.30 by a CIO but he could not remember which CIO it was who handed it to him. It seems unlikely that he could not remember which CIO had handed Radha's case to him and even less likely that he could not have ascertained from internal documents which CIO had handed it over to him. It is to be expected that he would have attempted to ascertain from internal records, or have asked others to have ascertained for him, which CIO had handed him her case. He gave no evidence of what briefing he was given or what documents and notes he was provided with when being handed her case, if that is what occurred. Had the case been handed over to him at that stage, it is likely that it was handed to him by CIO Davies and it is unlikely that he would not have been able to check the contemporaneous documents to find out who it was who handed him her case if he genuinely could not remember who it was. It is clear from the questions he recorded as having asked her that he had a good knowledge of what had occurred with Radha prior to the suggested hand over and had seen and was very familiar with the contents of the notes that had been made on the back of Radha's landing card and her passport.
If IO Newton was correct in stating that he only took over Radha's case at 22.30, he would have been provided with the information from the CID about the ECO's refusal of Radha's application for an entry visa and the FtT's determination allowing her appeal against that refusal. Furthermore, if IO Reeves or another IO had questioned Radha during the four hours that she had already been detained, it is inconceivable that that IO would not have discussed Radha's case with him or would not have provided him with the gist of her answers and that IO's views as to what the purpose of her visit was. IO Newton would have remembered such briefings and would, indeed, have recorded them on the CID had they occurred. The absence of any evidence from him and from any other source about what he was provided with at the hand over strongly suggests that no such hand over occurred and that IO Newton had been involved in her case throughout her time in detention.
Further evidence that IO Newton was already very knowledgeable about the case at the time of the start of the further interview is contained in the document entitled Summary and reasons for initial detention that he filled in soon after he had refused her leave to enter. This read:
"[Radha] sought LTE the UK as a visitor for 3 months and presented a visitor's visa. However, she stated that whilst here she would assist her sister sewing curtains for which she would receive payment for. She confirmed this during the further interview.
She was seeking entry with the expectation of employment for which she would receive payment and would therefore fail to comply with the terms of her visit visa."
As can be seen from the notes on the landing card, Radha was not reported as stating that she was expecting to be employed. As reported, she merely stated that she would help Hansha. She was not reported as being asked or as stating what the nature of such help would be. Thus, IO Newton's report that she had stated that she was expecting employment during that initial interview must have been based on his own independent knowledge of her case.
The overall conclusion from the absence of any evidence relating to the circumstances in which Radha's case was handed over to IO Newton at 22.30 is that the case was not handed over to him at that time, it had been with him from the outset and that he had invented this evidence so that it would look as if he had had no involvement with her in the earlier stages of her detention.
Further interview the interpreter. Radha's evidence was that:
"2. As my English is poor I was provided with a Gujarati interpreter".
That statement suggested that the interpreter was present at the interview. However, IO Newton's evidence was that:
"4. I then arranged for a Home Office qualified interpreter to assist via speak telephone so that I could conduct a further interview with Ms Patel.
8. The interview was recorded on the interview sheets as the questions were being asked and answered. They were also read back to Ms Patel. An interpreter was used throughout so Ms Patel understood the questions. She agreed that they were an accurate record and signed each page
In considering which of these two conflicting items of evidence was correct, IO Newton's significant failure to comply with the UKBA's standard practice concerning the recording of the name of the interpreter should be considered. The Interview Front Cover was filled out as follows:
"Must be Completed at the Start of the Interview
Date of Interview: 23/05/2011
Name of Passenger: Radha Naran Patel
Name of Immigration Officer: Paul Newton
Language of Interview: Guajarati
Name of Interpreter (where applicable): 00918
Names of any others present: None
Time interview commenced: 23.00
Do you understand the interpreter/
If at any time during the course of this interview you do not understand a question or are having difficulty in understanding the interpreter/me then please make me aware.
Are you fit and well & happy to be interviewed: Yes
Passenger's signature: R. N. Patel [signed in handwriting]
Date and Time: 23/05/2011 23.00
Must be completed at the end of the interview
Time interview terminated: 23.52
'I confirm that I have read/have had read to me the record of my interview, I understand all the questions put to me and I confirm that it is an accurate record'
Passenger signature: R.N. Patel [signed in handwriting]
Date and Time: 23/05/2011 23.52"
It can be seen that the interpreter was only identified by a number whereas the name of the interpreter should have been given. The interpreter did not provide a statement and no documents or logged details recording the engagement or name of the interpreter, the timings of the interpretation or the invoicing and payment for the interpretation were disclosed. There is therefore no corroboration of IO Newton's evidence that the interpretation was provided by telephone, who the interpreter was, whether Radha appeared to understand the questions or whether the interview notes of the questions and answers were read out, translated and confirmed at the end of the interview.
Further interview the available evidence. The evidence of what was said in this further interview and IO Newton's preceding interview of Laxman was evidenced by the interview notes written down by IO Newton, Radha's two statements, Laxman's statement, IO Newton's minute and his entry in the CID log about the interview and his and CIO Davies's two statements. CIO Davies's fuller reference to the interview with Laxman suggests that he was fully briefed by IO Newton about it.
Further interview Radha's evidence. Radha's evidence about the further interview was the same as her evidence about the preceding informal interviews. She stated that she never admitted and emphatically denied that she was going to be employed by, to work for or to help Hansha in sewing curtains.
Further interview Laxman's evidence. It is clear from all the evidence that IO Newton initially contacted Laxman by ringing his mobile number. His record on the CID log was that this contact occurred at about 22.45 whereas Laxman put it at about midnight. IO Newton arranged to meet him face to face there and then, probably in the arrivals area in Terminal 4. The explanatory statement asserts that this was a telephone interview, an assertion based on IO Newton's minute that stated that IO Newton questioned Laxman and that he contacted him on his mobile number which was identified in the minute. However, this note and Laxman's statement read together are more consistent with Laxman's evidence that he was initially contacted by mobile and then met his interviewing IO face to face than with the whole interview taking place over the telephone. There is further uncertainty arising from IO Newton's note in his minute sheet that he had two conversations with Laxman, the first immediately before the further interview of Radha and the second immediately after it was concluded.
Laxman's evidence was that IO Newton questioned him in a hostile and aggressive manner. He asked him for considerable detail about Radha, her husband and children in Gujarat and her family members in Harrow and the reasons for her visit. Laxman provided all details that he was asked for and explained that her purpose in visiting the UK was solely to see her family. He explained why Radha's husband had not come to the UK, who was looking after her two children and how it came about that their parents and Hansha had acquired UK citizenship and he had acquired ILR. His evidence was that he had particularly stressed in answer to questions about Hansha and Radha's intentions that Hansha worked in a curtain factory, that she did not and was not permitted to bring sewing work home and that Radha would not be sewing curtains or helping Hansha to sew curtains.
It is significant that IO Newton did not mention this interview or interviews in either of his statements and, in his Minute reproduced on the CID, his only reference to the interview is remarkably uninformative in only stating:
Spx Mr L Patel [mobile number] contacted. Main points were:
- [Laxman] here for 3 month family visit.
- he works in stock room, his wife ([Laxman's] sister-in-law) works in a curtain sewing factory.
- [Radha] is housewife, her husband works in SYC as a builder. 2 children in IND.
Further interview ended.
I again spoke to her brother who denied [Radha] would do any work and that NO work was conducted within the family home. "
It is also significant that the explanatory statement significantly downplayed this interview. It firstly, inaccurately, suggested that the interview was conducted soon after Radha had been detained. It then suggested that the only salient points made by Laxman during the interview were that Radha had arrived in the UK for three months for a family visit, had then added that she was a housewife in India and that her husband worked as a builder in the Seychelles and had then gone on to state that she had two children in India.
Laxman stated that he was telephoned a second time at about 02.30 to inform him that the UKBA were going to detain Radha and that it was his choice whether to wait or go home. Nothing else was discussed or stated during this call.
It is clear from the evidence of Laxman, that there was one meeting face to face immediately prior to Radha's further interview during which the main points made by Laxman were that Radha was not intending to work sewing curtains, that Hansha did not work sewing curtains at home and that Radha would not be helping her to sew curtains. It is clear from CIO Davies's statement that IO Newton told him of these significant points made by Laxman. Furthermore, it is more likely that there was one discussion as stated by Laxman rather than two as stated by IO Newton and that the second discussion that IO Newton referred to was confined to brief information that Radha was going to be detained.
Further interview IO Newton's evidence. Following his meeting with Laxman, IO Newton returned to the interview room where Radha was waiting and conducted a full interview for 52 minutes from 23.00 to 23.52. There was no-one else present save the interpreter if that person was present rather than being on the other end of a telephone call.
IO Newton's evidence in his first statement dated 28 July 2012 and served on 5 November 2012 about this interview is as follows:
"5. Before the interview commenced, I offered Ms Patel refreshments which would consist of drinks and food and asked if she was fit and well to answer questions. She declined any refreshments but state she was fit and well and able to continue.
6. The interview was conducted in the designated interview rooms in Terminal Four. There is no presumption of what the outcome might be. In the case of Ms Patel, the main point that needed to be explored was her statement upon arrival that she would help her sister sew curtains for which she would receive payment. I did this by asking her what she would do whilst in the United Kingdom and asked her to clarify what she meant be sewing curtains and receiving payment from her sister. I asked each question myself and wrote each one down on the interview sheets. It was then translated into Guajarati (sic) by the interpreter. Ms Patel would answer and the interpreter would translate this into English. I would then write the answer as it was said to me by the interviewer on the interview sheet next to my question as is standard practice. At the end of the interview, all the questions and answers were read back to Ms Patel via the translator. She agreed to them being an accurate record of what was said and she signed each page including the bottom section of the interview front cover. I also signed the interview pages. She was again offered refreshment, which she declined. I asked her again if she was fit and well. She replied that she was.
9. The interview was recorded on the interview sheets as the questions were being asked and answered. They were also read back to Ms Patel. An interpreter was used throughout so Ms Patel understood the questions. She agreed that they were an accurate record and signed each page. The notes made on the computer were made shortly after using the interview. They were a summary of the interview enabling another person involved with the case to ascertain what was stated during the interview. Unfortunately, this interview was fifteen months ago so I am unable to recollect every detail of the interview. However, Ms Patel was very clear that she was visiting her sister with the expectation of sewing curtains for payment."
10. I am satisfied that the interview was conducted in a professional manner with a fully qualified Home Office interpreter used throughout via speaker phone. At no point did I raise my voice or in any way intimidate or threaten Ms Patel. My role as the interviewing officer was to establish the purpose of Ms Patel's trip. Any unprofessional behaviour on my part would have been identified by the interpreter, other immigration officers and even the holding room staff. I have conducted hundreds of interviews during my six years of employment in the Home Office and I have never had any accusations of shouting or aggressive behaviour made against me.
I referred the case to CIO Chris Davies. I told him what Ms Patel had stated upon arrival and what she had stated during the further interview. He authorised the decision to refuse Ms Patel leave to enter the United Kingdom and cancel her visit visa with a curtailed right of appeal.
12. I am unable to comment on any dealings with Ms Patel before the case was handed to me. However, I am satisfied that I dealt with this case in an efficient, courteous and professional manner. I followed correct procedures throughout. I did not set out with a "refusal" agenda. A further interview is to enable more questions to be asked so that the intentions of a passenger can be better understood."
This statement was only prepared on 28 July 2012 many months after Radha had returned home to India so that she did not have the opportunity of responding to it.
Further interview the interview record. The further interview record made by IO Newton consists of 29 questions and answers. The questions that are underlined do not seem to be accurately worded since the answer as worded appears to be answering a slightly but significantly differently worded question and the answers in italics, which are those alleged to be Radha's admissions on which the cancellation of her entry clearance was based, but are answers which could and should have been but were not further explored. The entire record was as follows:
"1. Q. Why are you coming to the UK?
A. I have come to meet my Mum and my Dad.
2. Q. How long will you stay for?
A. 3 months
3. Q. Where will you stay?
A. With my mother and father.
4. Q. What visa do you hold for the UK?
A. A visit visa.
5. Q. Do you understand the terms and conditions of your visit visa?
A. I don't know the rules and regulations of the visit visa.
6. Q. What will you do for 3 months whilst you are in the UK?
A. I will be meeting my family.
7. Q. Do you have any specific plans for when you are in the UK?
A. My sister is sewing curtains at home so I will help her sew the curtains.
8. Q. Can you please explain what you will do for your sister?
A. I will help my sister. My sister works in a factory sewing curtains but she brings work home so I will help her.
9. Q. Will you receive payment for this?
A. Yes she will give me money for helping her. We have not decided a fixed amount. She will give me whatever she can.
10. 16. [Answers about her married life in India]
17. Q. What is the main purpose of your trip to the UK?
A. It is for a family visit. My visa was expiring so I wanted to use it. My children don't have passports so it would have taken time to get them.
18. Q. Did you have any trouble getting your visa?
A. I did not submit a document. I resubmitted it then got my visa.
19. 21. [Answers about the immigration status of her UK family members]
22. Q. Your return ticket is for October. So are you here for 3 months or 5 months?
A. Before my visa expires. My brother will arrange everything.
23. Q. Tell me what you have discussed with your sister regarding helping her with sewing?
A. She told me that I can help her with what work she can get. Sometimes she has some work to do quickly so I will help her out. There is not much work. Most of the time we will be going out.
24. Q. Does your sister own the sewing business?
A. I don't know. I know people bring sewing work to her home and tell her what they want. She sews the work and the people collect.
25. Q. As a visitor, any work paid or unpaid is not permitted. Are you aware of that?
A. I was not aware that I could not work.
26. Q. Do have any expectation of how much your sister will pay you?
A. This is my first time. I have no idea. I don't know how much I would get.
27. Q. What would you do if your sister gave you no money for your services?
A. My sister won't let me go empty handed. It is not just my sister. Everyone from my family will give me money.
28. Q. Will you be working full time for your sister?
A. We all will be in the same house so whatever help I will give her I will. Nothing has been arranged.
29. Q. Anything to add?
Further interview - the Border Force Operations Manual ("BFOM"). The Border Force had in force at the date of Radha's further interview an unpublicised Manual: Immigration Secondary Interviews which provided mandatory guidance to IOs as to how a further interview should be conducted. This guidance was only first disclosed at a late stage in the judicial review process. The respects in which the BFOM was not followed were as follows:
(1) Interviewing the passenger
(i) It would generally be appropriate to interview [Radha] to establish all the facts of the case.
(ii) Radha was interviewed at least once. IO Newton should have noted up each interview that took place or, in his evidence have expressly refuted that he interviewed her on other occasions, should have answered Radha's evidence and should have explained why the interview did not start for well over four hours after her arrest. Since IO Newton's credibility was in issue, he should have been offered for cross-examination and the interpreter should have provided a statement explaining what, if any, possible misunderstandings occurred which might have led to confusion as to what she said about helping sewing curtains.
(2) Fit and well to be interviewed
(i) Before commencing the interview, the passenger [Radha] had to be asked whether she was fit and well to be interviewed and her responses recorded.
(ii) The front cover merely provided a standard question: "Are you fit and well & happy to be interviewed?" The answer was "yes". Radha had been travelling for nearly 24 hours, was short of sleep and very frightened. She also stated in her evidence that she complained about being questioned given how tired and upset she was. It is unlikely that her answer would have been a laconic "yes" in those circumstances. IO Newton should have explained in the record why he was confident that she was fit, well and happy to be interviewed given these obvious facts.
(i) It was necessary to take question and answer notes on what was asked and [Radha's] reply should be noted wherever possible verbatim but definitely where a crucial question had been asked.
(ii) A careful comparison of the questions with the answers as recorded suggests that there was not a verbatim transcription or full and accurate summary of the questions or a verbatim transcription of the answers. This is particularly so with the underlined questions and italicised answers.
(4) Need to ask further questions of crucial admissions
(i) Where a crucial admission was made, further questions should be made in order to rebut any future contentions that a misunderstanding arose.
(i) The crucial admissions to which no further questions appear to have been asked but where further questions should have been asked are italicised. The particular passages in these crucial answers that needed further exploration were as follows.
(ii) Answers 7, 8, 9 and 23 Help sewing curtains. These answers referred to Radha providing help to Hansha to sew or in sewing curtains at home that Hansha brought home from work. These answers were subsequently relied on to draw the adverse conclusion that Radha was to be employed to sew curtains.
(iii) It is noticeable that no questions were asked about the nature of the work that Hansha brought home, about the frequency of such work being brought home, as to what aspects of the curtain making were brought home to work on and as to how such work was done in a small and overcrowded home where five adults and an infant were living.
(iv) Furthermore, there were no questions exploring how much work Hansha did that was brought to her directly at home and therefore presumably work additional to and outside the work for which she was employed.
(v) Radha was not asked to describe what help she would give to enable the conclusion to be drawn that she would be helping in a manner that would involve her in being employed by Radha as opposed to helping her in some less formal manner that did not involve her in being employed.
(vi) To explore this topic, she should have been asked questions along the following lines: Would you be working on both the work brought home by Hansha and the separate work brought directly to her by her own clients? What part would you play in the actual sewing? Would your help be less directly involved than sewing by, for example providing assistance to Hansha in pinning, measuring out, holding down, sizing, piecing or other related tasks? What was your previous experience in sewing curtains? Was the house large enough to enable both of them to sew curtains together or even for one of them to sew curtains there? Were there appropriate machines in the house to enable the materials to be cut and pieced? Would you be sewing on your own during times when Hansha was away from the house? What help was Hansha given by your parents, your brother and your sister-in-law? If your other family members did not help in sewing curtains, why were you going to help Hansha? Would your help be direct or indirect? Would your help be confined to, or include, helping with the domestic chores or other activities which Hansha might otherwise have been undertaking but which she would be spared so that she could concentrate on the sewing?
(vii) Furthermore, there no questions were asked which explored the working relationship between Radha and Hansha. That relationship had to be in the nature of an employment relationship even if there was not to be any or only a small amount of payment. Thus, it was not any work that was prohibited and such work as housework, domestic work or work arising out of a family arrangement would not count as employment. An employment relationship involved, at the very least, some element of control and responsibility by an employer in this case Hansha - which was not a domestic or private arrangement and which had at least a nominal structure, rules, boundaries and regularity and was being undertaken under a defined programme.
(viii) In short, the suggestion that Radha was coming to the UK to undertake employment sewing curtains and would overstay her visa and would be paid by Hansha for that employment was never put to her in terms.
(ix) Answers 9 and 23 Discussions between Radha and Hansha. These answers referred to discussions between Radha and Hansha. Radha was not asked when these discussions took place and to describe their number, length and content in a little more detail. Thus, the discussions could have been anything from a throwaway remark to detailed and regular conversations. Since Radha was living in Gujarat and Hansha in the UK and neither was particularly well off, the discussions would have had to have been by telephone or skype and were unlikely to have been detailed or frequent.
(x) Answers 9, 26 and 27 Payment for help. These answers only provided the vaguest reference to payment. Thus, it was not asked whether the payment was to be a reward for the help that was given, whether it was to be payment in cash or in kind or as part of Hansha's sponsorship and whether it was to assist her with spending money and as money to help her maintain herself whilst in the UK. Answer 27 is particularly ambivalent: "It is not just my sister. Everyone from my family will give me money". This answer suggested that the money Radha would receive was not directly related to her help or "employment" at all but was instead pocket or spending money provided by her parents and siblings to assist her in her extended family visit. Moreover, "this is my first time" (answer 26) suggests that this was Radha's first visit to the UK so she would not have seen her family for many years. In those circumstances, it would not be surprising if her sponsor and other family members collectively helped her out and that she would "become part of the family" whilst staying with them. Finally, she was not asked what she would do with such money as she received: spend it in the UK? Remit it to her parents-in-law? Bank it as savings for her return to India? Or what?
(xi) Answers 6 and 22 Length of stay. Radha was never asked directly why she stated in her visa application that she would be visiting for three months or less yet appeared to be staying for 4 months nor why her father-in-law bought the tickets for her and why he booked a 4-month visit when she only wanted a 3-month visit at most.
(5) Discrepancies between passenger and sponsor
(i) Where a sponsor had been interviewed prior to the interview of the passenger [Radha], any discrepancies between the two statements should be put to the parties concerned and their responses duly noted fully.
(ii) The answers given by Laxman were never put to Radha and vice versa. Moreover, since there was no denial by IO Newton of Laxman's account of the many questions he was asked and answered that are not referred to in IO Newton's notes or witness statements, it is likely that Laxman's account of that interview was correct. If so, his answers were significant and the failure to put them to Radha was particularly striking. Similarly, Radha's answers were not put to Laxman which was a serious oversight since he would have been able to provide detailed answers that would have shown up these apparent answers as being seriously incorrect.
(6) Passenger's opportunity to comment
(i) At the conclusion of the interview, the passenger [Radha] should be allowed to add anything that she thought might be of assistance and the interviewer should confirm that she had understood everything the interviewer had discussed and again her response should be recorded. Once again the notes should be dated, signed and timed.
(ii) IO Newton was unlikely to have received merely the monosyllabic answer "No" he recorded Radha to have given to his question "Anything to add?" if she had appreciated that her answers would be taken to amount to an admission that her purpose of entry was to be employed sewing curtains. She should have been given an informed and unforced opportunity to add her comments through the interpreter.
(7) IO to communicate with sponsor
(i) The interviewing IO should himself communicate with any sponsors in the UK or the hosts of [Radha] as the person detained where this would assist his enquiries. Any discrepancies between the two parties statements should be put to the sponsor as well as to [Radha] and all the sponsor's answers should be noted much like the Q & A with [Radha].
(ii) IO Newton reasonably treated Laxman as Radha's sponsor or host. However, on his evidence, he only asked Laxman a limited amount of questions prior to Radha's interview and did not return to Laxman after it had been completed and put Radha's admissions to Laxman or note down his questions and Laxman's answers to these additional questions.
(8) Interviewing IO to establish no comprehension difficulties with interpretation
(i) Before the interview started, the interviewer should establish that [Radha] and the interpreter understand one another.
(ii) There was no evidence that this was done. Furthermore, the interpreter was not named in a legible way, the only identification that was provided was his number and no documents have been disclosed to identify him or to show that he really was engaged or even existed. There was no evidence that the entire interview notes was read back to Radha through the interpreter and her acceptance that each answer was accurate. Furthermore, there would not have been enough time, 52 minutes as recorded, for the entire interview as noted to take place through an interpreter and for the entire interview then to be read back to Radha through an interpreter.
(9) Verbatim translation
(i) During interview, all interpreters should be required to provide verbatim translation.
Further interview Hansha's evidence. In assessing the evidence about the further interview, it is relevant to take account of Hansha's evidence that was available to the IOs who were making enquiries about Radha's intentions. Firstly, the evidence included in Hansha's sponsor's statement dated 5 July 2010 should be considered. This statement had been submitted with Radha's original visa application, it was before the FtT at her first appeal that led to the granting of her visa application and would have been available to IO Newton when he searched the CID following her temporary detention.
(ii) There was no evidence that IO Newton made it clear to the interpreter in Radha's presence that his questions to Radha and her answers to them should be translated verbatim into and out of Gujarati.
That statement included the following evidence:
1) I hereby sponsor my eldest sister Mrs Radha Naran Patel.
My sister will travel to the UK this summer. This is her first ever family visit to meet and stay with us in the UK. She will also have a holiday in the UK. She intends to stay in the UK for 3 months.
The UK Accommodation
I live here with my parents. Our house is a terraced property with 5 rooms. There is adequate accommodation for my family and the guest to stay with me.
4) My parents who are the owner of
are supporting me in my sponsoring of my sister Radha.
The sponsor's employment
5) I am a Taylor by profession working for .. . We are manufacturers of soft furnishings such as curtains and blinds. I earn about £1,100 net of tax. My annual income is about £14,300 net of tax.
6) I have savings of about £9,150.
7) I confirm that I will pay for Radha's entire travel cost to the UK which includes the cost of visa, plane tickets and their entire cost in the UK. I estimate that the cost of her holiday/family visit in the UK will be about £2,000.
8) I confirm that Radha will live with me at my home for the duration of this holiday/family trip to the UK. I confirm that I have adequate accommodation and means to maintain her as my guest in my home.
10) I believe that the facts in this witness statement are true."
Secondly, it would also have been possible for IO Newton to telephone Hansha whilst making his enquiries during the evening of 23 May 2011. He would have obtained the following confirmatory information which was contained in her witness statement that was subsequently served in September 2011 for use in Radha's third appeal to the FtT:
"5. I confirm that I had never asked [Radha] to help me in making any curtains. I also state that my sister cannot work for me or help me in making curtains as she is not a professional Taylor or curtain maker and also I cannot to bring work at home. Therefore the UKBA is absolutely wrong in concluding that my sister's purpose to come to the UK is to help me in making curtains.
6. My sister's only intention to come to the UK was meet all of us and spend a few days with her family and then go back to her own family consisting of two children in India. My sister has left behind two young children aged 7 and 9 with her in-laws and would never consider staying back in the UK leaving behind two young children. No mother would do that."
Further interview IO Newton's post-interview summary. IO Newton summarised Radha's interview in his minute sheet which was placed on the CID log:
By her own admission she was seeking LTE with the expectation of employment for which she would receive monetary reward. ... However, [Radha] clearly stated that she had discussed employment with her sister for payment. I referred the case to CIO C. Davies who authorised RLTE the UK and cancellation of her visa with NO RIGHT OF APPEAL."
It can be seen that, as noted by IO Newton, Radha stated in four separate answers during the further interview that she would help Hansha but that she never stated that she would work for her or be employed by or that she had an expectation of employment or that any payment made by Hansha would be related to her employment. It can also be seen that IO Newton's referral of Radha's case to CIO Davies and his authorisation was on the express basis that her visa was to be and was cancelled with no right of appeal. This clearly showed that the cancellation was being made under the IA because her purpose in seeking entry was different from the stated purpose of her visit which was a decision which carried no right of appeal.
Further interview FtT's findings. The immigration judge in his determination of Radha's third appeal was not satisfied that Radha made the admissions contained in the notes of evidence, could not be presumed to have had a full understanding of the handwritten English contained in them and attached no weight to her having signed the notes. The SSHD has since led no evidence, particularly from IO Newton, that sought to show that that finding was incorrect or to explain why Radha's evidence to the FtT was incorrect or why no evidence was adduced by the SSHD during the FtT third appeal. Equally, the SSHD made no attempt to obtain from the FtT judge who heard the third appeal that judge's notes of the oral evidence given by Radha to the judge. No transcript or recording of that evidence would have been made but it would have been possible for the SSHD, through the Treasury Solicitor, to apply to the judge for a typed-up version of the notes made by the judge in his notebook. Given the circumstances of this case, an attempt should have been made by or on behalf of the SSHD to obtain a typed-up version of the immigration judge's notes of Radha's oral examination.
CIO Davies's and IO Newton's decisions. Following this further interview, IO Newton discussed her case with CIO Davies who took the following four related decisions:
(8) Refusal and immigration detention decisions
(1) Her leave to enter would be cancelled because she was seeking entry for the purpose of assisting Hansha to sew curtains which was a different purpose from the purpose of visiting the United Kingdom specified in her entry clearance;
(2) She would be refused leave to enter;
(3) She would be served with removal directions for her removal on a flight to Mumbai that was to leave at 21.00 on 24 May 2011; and
(4) She would be detained until her removal.
Overall conclusion the interview as recorded in the summary. My summary of the available evidence shows that the SSHD's case has no foundation. This is particularly so insofar as it is based on the submission the admissions recorded as having been made by Radha were either made by her or could reasonably be read as having been made by her. This is also so in relation to its further case, which only arises from inference, that Radha was not questioned in any other interviews at all and was never questioned at all in a bullying manner with the aim of forcing an admission from her that her purpose in entering the UK was to take employment sewing curtains. There are four strands of evidence that need to be considered in the round when this presumed defence or denial case is evaluated.
Firstly, it is necessary to take as the starting point, the FtT's conclusion that Radha was a credible and patently honest witness. This finding was made after Radha had given detailed evidence that verified her full witness statement and she had been questioned at length by her counsel in chief and by the immigration judge. The SSHD made no attempt to obtain the immigration judge's notes of that oral evidence and did not attempt to challenge it in the hearing of this judicial review. It is also necessary to take account of the immigration judge's conclusions that Radha did not admit any intention of undertaking paid work in contravention of the terms of her visa and that no weight could be placed on her signing the notes. These findings were reached after the SSHD had decided not to be represented at the hearing nor to adduce any evidence at the FtT despite it being fully aware of the nature and extent of Radha's case and having been given unusually clear warning of the need to adduce rebutting evidence by the immigration judge when adjourning the first hearing. The SSHD has since provided no explanation for taking these decisions and did not contend that the evidence it has now adduced could not reasonably have been adduced to the FtT earlier
Secondly, the two interviews did not appear, even in the terms that they are set out, to show that Radha was intending to take employment. This was clearly the view of CIO Khan when he reviewed the decisions on 28 May 2011 and for the reasons set out above, Radha was doing no more than accepting that she would help Hansha which IO Newton then interpolated without explanation in subsequent decisions and in the explanatory statement as being an admission of intended employment. In reality the help she was reported to have admitted was a family arrangement at best.
Radha's two statements with the supporting evidence could not be clearer in what she was alleging and the only rebuttal evidence from IO Newton did not address Radha's evidence of being bullied or of being repeatedly interviewed, did not attempt to explain why reliance could be placed on the reported content of her preliminary or further interviews or the other shortcomings in the further interview and did not explain why he interpreted the admission he stated that Radha had made that she would help Hansha as meaning that she would be employed by Hansha. Furthermore, he was evasive to the point of being untruthful about his part in the preparation of the explanatory statement and did not seek to explain its errors and admissions although these were within his own knowledge.
CIO Khan's role in the attempted cover-up of the circumstances under which the further interview was conducted and in the absence of any evidence that Radha was intending to be employed is of considerable significance. These matters are dealt with below.
When this evidence is considered as a whole, only one conclusion is possible: Radha's evidence in relation to this interview is to be accepted in its entirety and the SSHD's case about it is to be rejected. Radha was bullied, she never made the admissions attributed to her, she continuously denied she had any intention to work or to help or assist Hansha in sewing curtains and the notes were deliberately written up to record her so-called admissions when it was known that she had not provided answers in that form and was vehemently denying any intention to take employment or to do anything other than visit her family.
Terms of the decisions. In reaching the decision to detain Radha until her removal, IO Newton carried out a risk assessment to determine whether she should be admitted on temporary admission or detained pending her removal. The risk assessment contained a summary of the case that stated:
"Upon arrival and during the further interview, [Radha] stated that she was expecting to work with her sister sewing curtains for which she would receive payment. This is a purpose other than that specified by her visa. CIO Davies authorised RTLE and cancellation of her visa with no right of appeal."
[Radha] had very strong family ties with the UK and they had given a different account as to why [she] was visiting the UK undermining their credibility for suitable TA sponsors."
The risk assessment was countersigned by CIO Davies.
The decision refusing her leave to enter was prepared on an IS 82A form which was signed by IO Newton. This stated:
"Immigration Act 1971 and Nationality, Immigration and Asylum Act 2002
Notice of Refusal of Leave to Enter
You have presented an entry clearance endorsed "VISIT" which has the effect as leave to enter on 15/04/2011 but your purpose in arriving in the United Kingdom is for employment, which is different from the purpose specified in the entry clearance. I therefore cancel your leave to enter. Upon arrival you stated that you were seeking entry for three months to visit your family. By your own admission, you stated that you would assist your sister sewing curtains at the family home for which you would receive monetary reward. You again confirmed this during the further interview. However, any work, whether it be paid or unpaid is not permitted under the terms and conditions of your visit visa which clearly states "NO WORK". You are therefore seeking entry for a purpose other than that specified by your visit visa. Furthermore, there are discrepancies between your statement and the statement given by your sponsor with regards to your length of your stay and what you intend to do whilst here. In the light of this and that you are seeking entry with the expectation of employment, I am satisfied that you will fail to comply with the terms and conditions of your visa."
Comments about the wording of the decision. The decision was clearly being taken in reliance of powers set out in schedule 2 to the IA on the basis that Radha's stated purpose for seeking entry was to be employed to assist Hansha in sewing curtains which was a different purpose from the visit purpose specified in her visit visa. Furthermore the discrepancies between what Radha had stated to be the length of her stay and her intentions as to what she was to do in the UK and Hansha's statements on these matters showed that Radha would not comply with the terms and conditions of her visa.
Defects in the IS 82A form. The wording of these decisions was prepared by IO Newton soon after he had finished interviewing Radha but there is no evidence that the notice of refusal of leave to enter set out on the IS 82A form was explained to or served on her as should have happened. IO Newton does not state that he explained or served the notice on her in his statements and Radha stated that all she was told was that she was being detained as her entry was refused because she intended to work.
Radha's evidence was that she was informed by the IO at the time she was detained, presumably by IO Newton, that she had no right of appeal. However, this was erroneous, if it had been stated to her, because she had a human rights appeal arising from her claims under articles 5, 8 and 14 of the ECHR. This was an in-country right of appeal. These claims potentially arose in four separate ways. Firstly, the stated purpose of her visit, which she stated in her evidence that she had repeatedly stated to the IO during the various interviews she was given, was an extended visit to her English-based family that included her parents, her two siblings, her brother's infant and her sister-in-law. She therefore had an obviously potential article 8 claim for disproportionate interference with her family life. Moreover, she was being detained and the stated policy of the SSHD was that there was a presumption against detention in circumstances similar to Radha's. There was, therefore, a possible claim under article 5 for unlawful detention since her detention appeared to engage article 5. Finally, it was, or arguably should have been, known to IO Newton that Radha had potential complaints about the way she was interviewed which, if her complaints had any foundation, engaged or potentially could have engaged articles 5 and 14.
Radha's rights of appeal in-country arose in two related ways. If she could establish a breach or breaches of her human rights arising from the decisions to cancel her leave to enter and to detain and remove her, she had grounds for appeal under the IRs since, even if the decision otherwise conformed to the IRs, the decision would be incompatible with the ECHR and would therefore be "not in accordance with the law" and was unlawful which are two of the stated grounds of appeal permitted and arising from the NIAA. This appeal could be brought in-country even if the decision in all other respects conformed to the IRs. A human rights claim could only arise under the NIAA if the underlying decision was an immigration decision. The decision to refuse her leave to enter was such a decision. The notice setting out an immigration decision, in this case the IS 82A form refusing Radha leave to enter, was subject to a mandatory provision that it should include or be accompanied by a statement which advised her of her right or appeal, whether or not it could be brought whilst she was in the UK, the grounds on which it could be brought and the facilities available for advice and assistance in connection with such an appeal. Non-compliance did not render the decision invalid but a failure to comply could render action taken under it to be of no effect if that failure had led to consequences such as deportation which might have been avoided had notification of appeal rights been given in conformity with the notice.
In this case, Radha contended that she had not been served with the notice and no attempt had been made to explain the notice save to tell her that she was being detained and deported and had no right of appeal. Since IO Newton was speaking to her directly in English, it seems likely that he only gave her limited information. There is no internal evidence in the disclosed documents that this notice was served on her. The copy of the decision in the hearing bundle shows that the decision was recorded on an IS 82A form. This is a copy of the document faxed to Radha's legal representative on 25 May 2011 by Colnbrook Serco. This copy appears to have a page missing from it, the pages of the decision that were sent or received did not contain any notification of Radha's rights of appeal on human rights grounds.
The IS 82A form and its service therefore had the following defects:
(1) The decision made it clear that Radha's leave to enter was being cancelled and she was being refused leave to enter under the provisions of schedule 2 to the IA. Refusal of leave to enter following such a cancellation did not carry an in-country or an out-of-country right of appeal. However, the decision was set out on an IS 82A form which was the wrong form since it was only appropriate where the passenger sought to enter with entry clearance where her circumstances had changed such that her leave to enter should be cancelled, a decision which carried a right of appeal from abroad. The correct form to have used was an IS 82D form, being that appropriate were no right of appeal existed.
(2) Furthermore, the form did not refer to Radha's right to appeal in-country on Human Rights grounds (subject to it being certified in which case it was an out-of-country appeal) which it should have done.
(3) Radha was erroneously informed by IO Newton that she had no right of appeal and her solicitors were also erroneously informed over the telephone by an IO when the solicitor called Terminal 4 on 24 May 2011 enquiring about Radha. This query was said to have been referred to CIO Norris and he is said to have instructed that the solicitors should be called back and informed that the decisions would stand and there was no right of appeal.
(4) The relevant decisions were not served on Radha or explained to her as they should have been.
24-hour detention review. CIO Davies also signed his authorisation of IO Newton's 24-hour detention review which to all intents and purposes authorised the cancellation of Radha's leave to enter, the refusal of her entry and her continued detention in the same terms as the risk assessment. In doing so, IO Newton was deciding and CIO Davies was authorising the confirmation of the decisions taken immediately following Radha's further interview and the basis of those decisions. These IOs were therefore, in reality, authorising the cancellation of Radha's entry permission, the refusal of her leave to enter, her immigration detention in the form of a 24-hour detention review and the issue of removal directions for her removal to Mumbai as soon as possible. Their reasons set out in the review document were:
(9) 24-hour detention review
"[Radha] sought LTE the UK as a visitor for 3 months and presented a visit visa. However, she stated that whilst here she would assist her sister sewing curtains for which she would receive payment. She confirmed this during the further interview.
She was seeking entry with the expectation of employment for which she would receive payment and would therefore fail to comply with the terms of her visit visa. I referred the case to CIO C. Davies who authorised RLTE and cancellation of her visa with no right of appeal.
RD's set for 24/05.2011 at 21.00 on IT008 Mumbai. CIO Davies requested [Radha] be detained until removal."
This review was premature. It should have been undertaken 24 hours after Radha's detention which occurred at about 00.25 on 24 May 2011. Had that happened, it would have been undertaken in Colnbrook IDC by a different CIO unconnected with Terminal 4 and it is possible that that fresh and independent consideration might have led to the same conclusion as was reached 3 days later by CIO Khan, namely that the decisions were unsustainable.
The only contemporaneous record of his reasons is provided in the brief note made by IO Newton in the CID soon after the further interview had been completed and his detention risk assessment and in the Summary and Reasons for Initial Detention document signed by CIO Davies. These three documents were all prepared in the early hours of 24 May 2011.
(10) CIO Davies's explanation for refusal and detention decisions
Explanation of the decisions in the explanatory statement and CIO Davies's first statement. The lawfulness of the decisions taken on 24 May 2011 must stand or fall on the reasons given for them in the decisions themselves. However, insight into IO Newton and CIO Davies good faith and the genuineness of their belief in the reasons given for these decisions is obtained by comparing their stated reasons for these decisions contained in the documents that they issued and the significantly enlarged reasoning contained in the two documents produced retrospectively. The first, in the form of an explanatory statement, was prepared by CIO Khan and IO Newton on 25 June 2011 for use at the then forthcoming hearing of the second FtT appeal on 30 June 2011. The second was CIO Davies's first statement dated 28 July 2012 and served on 5 November 2012 that was prepared for the substantive hearing of this judicial review.
Explanatory statement. The provenance of this document must be taken into account. It was prepared on 25 June 2011 by CIO Khan with the assistance of IO Newton immediately before the hearing of the second FtT Appeal. CIO Khan signed and IO Newton countersigned the copy of this document that was placed on Radha's file. However, neither IO signed the version of the document which was disclosed to the FtT or to Radha's solicitor and counsel and the document was only first served on them as part of the hearing bundle prepared by the SSHD's hearing team that was served on the morning of the hearing when the presenting officer arrived at the tribunal hearing room. The explanatory statement was prepared for service before and use at the hearing. That hearing would, as they believed, be examining the circumstances that were taken into account in reaching the decisions taken in the early hours of 24 May 2011 and neither of these potential witnesses, as each of them knew, was giving evidence at that hearing. An explanatory statement is intended to provide an accurate statement of the relevant background evidence as known to the SSHD so that it should have set out the full range of considerations taken into account in reaching the 24 May 2011 decisions, should have been authorised by the served copy being signed by the CIO and IO who had prepared it and should have been based on sources that they identified.
The salient part describing IO Newton's thinking with regard to whether Radha's leave should be cancelled and her entry refused read as follows, the numbers in brackets refer to the numbered comments about those passages that follow:
"10. Officer Newton then considered the facts of the case. The considerations were as follows:
• [Radha] was successful on appeal, however upon reading the determination attached to the decision, it is clear that the learned immigration judge had still expressed significant concerns regarding [Radha's] financial circumstances in India (1). The appeal had instead been allowed on the basis that [Radha] would have a significant availability of funds through her various family members living in the United Kingdom.
• The initial concerns from the Entry Clearance Officer (as well as those expressed by the immigration judge) became evident once again (1). During the initial interview [Radha] firstly could not provide a consistent account of the length of her visit. This continued into the further interview where she alternated between stating that she would stay for three months, or five months, or until the expiry of her entry clearance (2). This served to cast doubt on her intentions once again. Though it was accepted that her entry clearance could only be cancelled under the grounds laid out under Paragraph 321A (3), this inconsistency caused doubt to be cast on the [Radha's] intentions once again (4).
• The most significant concern was evident from the [Radha's] clear statements during both her interview on the Primary Check Point as well during further interview. She had stated that she intended to work with her sister in the United Kingdom, and in return, receive financial reward (5).
• In regards to visitors, the Immigration Rules give very specific prohibition to employment. A visitor to the United Kingdom could not engage in any form of employment, whether contractual or casual, and whether paid or unpaid. [Radha] had stated that she was not aware of the conditions outlined by her entry clearance, nor was she aware that she could not work (despite the conditions being physically printed on the entry clearance vignette in her passport). During the initial desk interview she stated that she would work in the United Kingdom and be paid by her sister (5). In the further interview it emerged that the arrangements between herself and her sister had gone beyond potential conversation, and appeared somewhat advanced (6). [Radha] was aware that her sister worked as a seamstress, and that she would bring work to her home to complete (7). She also stated that her sister would also work on the basis that she would take orders from customers, who would collect their orders once completed (8). As such, it was clear that the matter had been discussed in some detail, and that [Radha] had arrived in the United Kingdom to undertake employment (9). This view was reinforced when the circumstances of [Radha's] attempts to obtain her entry clearance were taken in the round (10).
These statements are inaccurate in the following significant respects:
(1) Passage in the ES:
1. "It is clear that the learned immigration judge had still expressed significant concerns regarding [Radha's] financial circumstances in India".
2. Neither the immigration judge nor the ECO had expressed concerns regarding Radha's financial circumstances in India. Both found that her application was not supported by sufficient documentation to verify her current financial circumstances. The ECO had concluded that the copies of Radha's bank books that she had submitted were not sufficiently recent and the immigration judge had held that the documents she had submitted did not clearly show that the sums being remitted by Radha's husband from the Seychelles to fixed deposits that Radha had access to could be readily withdrawn by her.
3. The ECO, in error, had not considered the evidence of Hansha's financial circumstances but the immigration judge, in allowing the appeal did and concluded that she, as Radha's sponsor, had sufficient funds to pay for Radha's air fare and upkeep in the UK and for the costs of her return. There was, therefore, nothing revealed by these decisions that could reasonably support the inference that Radha would not comply with the conditions of her visa.
(2) Passage in the ES:
4. "[Radha] firstly could not provide a consistent account of the length of her visit. This continued into the further interview where she alternated between stating that she would stay for three months, or five months, or until the expiry of her entry clearance."
5. As has already been explained, the notes of both the preliminary and further interviews can reasonably be read as stating that Radha accepted that she had stated in her application that she intended to stay for 3 months and that her return ticket date was 3 October 2011 so that she now intended to stay for 5 months and that this change of plan occurred because she had left her travel arrangements entirely to her father-in-law who bought the ticket on his own initiative without reference to her or to Hansha.
(3) Passage in the ES:
6. "Though it was accepted that her entry clearance could only be cancelled under the grounds laid out under Paragraph 321A
7. The reference to paragraph 321A of the IRs as being the only basis for cancelling Radha's entry clearance was a material error and both IO Newton and CIO Khan must have known that this statement was erroneous. The basis for cancelling entry clearance was in fact provided for under paragraph 321 whereas paragraph 321A provided for cancellation of leave to enter. It was never in prospect that Radha's entry clearance would be cancelled.
Both paragraphs were concerned with the situation where there had been a change of circumstances since the leave was given such that it should be cancelled. However, SI Newton had cancelled Radha's leave to enter under paragraph 2A(2A) of schedule 2 to the IA on the basis that Radha's purpose in arriving in the UK was different from the purpose specified in her entry clearance.
The essential factual difference between these two different bases of cancellation was that change of purpose would involve a measure of dishonesty in the application for entry clearance since the changed purpose would usually have been known about when the application was first made whereas a change of circumstances would have occurred after the entry clearance had been granted.
8. Prior to the decision being made, it was clear from the terms of the decision and other documents already referred to that IO Newton was seeking to cancel Radha's leave to enter not her entry clearance and that that cancellation was on the grounds of changed purpose for which there was no right of appeal whereas in compiling the explanatory statement some 6 weeks later, he suggested that the cancellation was of her entry clearance and was on the grounds of changed circumstances which carried a right of an in-country right of appeal.
CIO Khan had, on 28 May 2011, withdrawn the decision under paragraph 2A(2A) and it would seem that both he and IO Newton were seeking to recast the cancellation of Radha's leave to enter on the grounds of a changed purpose to cancellation of her entry clearance for changed circumstances for tactical reasons associated with the forthcoming FtT appeal.
(4) Passage in the ES:
9. "This inconsistency [as to her length of stay in the UK] caused doubt to be cast on the [Radha's] intentions once again."
10. There was no apparent inconsistency in what she is reported as having stated about her length of stay in the UK that could reasonably cast doubt on Radha's intentions as to the purpose of her visit. She had been granted a 6-month visa so that she could lawfully remain as a visitor for that length of time even though she had indicated in her original application that she was only intending to stay for 3 months. As has been shown, she left her travel arrangements in their entirety to her father-in-law and he, without reference to Radha, booked her return flight on a date 5 months after the outward journey but within the permitted 6-month leave to enter that she had been granted. She does not appear to have prevaricated or provided anything other than straightforward answers on this topic in both interviews.
(5) Passage in the ES:
11. "She had stated that she intended to work with her sister in the United Kingdom, and in return, receive financial reward."
12. As has been shown, Radha was not reported to have referred to an intention to be employed or to work with her sister in sewing curtains. Throughout, she is quoted as referring to helping her sister in what was, or was consistent with being, a family arrangement. The financial reward she was noted as having referred to was consistent with the general financial assistance Hansha was to give her as her sponsor as "spending money".
(6) Passage in the ES:
13. "In the further interview it emerged that the arrangements between herself and her sister had gone beyond potential conversation, and appeared somewhat advanced."
14. The answers that Radha was reported to have given about the arrangements between herself and Hansha to sew curtains did not appear to be somewhat advanced. She merely said that she would help Hansha and that she had no idea how much money Hansha would pay her. It is significant that she was not asked to describe the help she would give Hansha.
(7) Passage in the ES:
15. "[Radha] was aware that her sister worked as a seamstress, and that she would bring work to her home to complete."
16. This passage overlooked the terms of Hansha's contract which forbad her to bring work home. These terms had been supplied to the SSHD on 25 May 2011 and were, or should have been, on Radha's file held by the Heathrow CCU. Moreover, Radha was not asked how much work she brought home or to describe the work that was brought home. This is significant since the house was a four-bedroom house that was occupied by five adults and a baby. There would therefore have been very little room to sew curtains so that the amount of sewing undertaken at home could not have been extensive.
(8) Passage in the ES:
(9) "She also stated that her sister would also work on the basis that she would take orders from customers, who would collect their orders once completed."
(10) Hansha was prohibited from taking orders from customers who were not customers of her employer. Moreover, her annual salary was £13,200 net of tax as shown by her sponsor's statement which was available to CIO Khan. This shows that she was not undertaking any significant amount of work outside her employment.
(9) Passage in the ES:
(11) "As such, it was clear that the matter had been discussed in some detail, and that [Radha] had arrived in the United Kingdom to undertake employment."
(12) The word "employment" was not reported to have been used during either the preliminary or further interviews. Moreover, there is no reported answer that showed or suggested that the matter had been discussed "in some detail".
(10) Passage in the ES:
(13) "This view was reinforced when the circumstances of [Radha's] attempts to obtain her entry clearance were taken in the round."
(14) It is not clear what is being referred to as Radha's "attempts to obtain her entry clearance were taken in the round". Her attempts amounted to her application and her appeal. There is little or nothing revealed by her reported answers that suggested that Radha was attempting to obtain her entry clearance for a purpose different from that she had on arrival at Heathrow.
Overall, this extended summary of what was reported as being the thinking behind the decision to cancel Radha's entry leave is significantly different to the far less detailed explanations provided in the decision notice and in the internal documents prepared by IO Newton. Of particular significance, is the absence of any reference to CIO Khan's decision to withdraw the cancellation decision or to comment on or refer to the doubts he had that the reported intended arrangement did not create an employment relationship, the erroneous reference to paragraph 321A of the IRs as the basis for the refusal decision, the misstatement about the doubts that the FtT immigration judge had about Radha's financial circumstances and her suggested confusion as to the length of her stay in the UK. Finally, and of particular significance were the statements that she had stated that she had discussed in some detail with Hansha that she would be employed by Hansha, would help her sew curtains when she had merely been reported as admitting that she would help her.
CIO Davies first statement. The relevant parts of CIO Davies's first statement read as follows, the numbers in brackets refer to the numbered comments about those passages in paragraph [ ] below:
"4. In considering this case, I was satisfied that there was such a change of circumstances in this case as to warrant refusal under paragraph 321A of HC 395 9 (as amended) and paragraph 320 (1). On that basis, I was satisfied that I could restrict the passenger's appeal rights under section 89 of the Nationality, Immigration and Asylum Act 2002 (2).
5. This individual had initially sought leave to enter for a period of three months, subsequently changing this to a period of five months (3). Ms Patel was interviewed by Immigration Officer Newton following which he referred the case to me. He explained that the passenger had sought entry as a visitor for which she held a valid visa. However, at the initial desk interview conducted by another officer, Ms Patel had said that she would be sewing curtains for her sister for payment (4). Mr Newton told me that a further interview which he conducted with the aid of a Home Office qualified interpreter, Ms Patel stated that she was unaware that she was unable to work in the United Kingdom. Mr Newton told me that this was put to her brother who was at the airport to meet her and that he denied that the passenger would do any work in the UK (5).
6. I then reviewed the information presented to me. I considered the discrepancy between what had been said by Ms Patel and what her brother had said in stating that she would be undertaking no work in the UK (6). I was of the opinion that he would be unlikely to confirm that his sister would work whilst here (7). Port-based decisions are based on the information obtained from the passenger and sponsors alike and reliance is placed on the interview notes which are signed by the interviewing officer and countersigned by the passenger as being a true account of the interview (8).
7. I read the interview notes, in particular questions 8 and 9, which stated that the passenger's sister worked in a curtain factory and brought work home and that she would help her sister sew these curtains and that she would be paid for this service. As the passenger had twice said that she would be working whilst here for monetary reward (9), I was satisfied that this was not the purpose for which her visa was issued and authorised her refusal (10).
In the absence of any competing compassionate circumstances, taking into account the discrepancies between the passenger and her sponsor and the time of the outbound flight, I deemed the passenger's detention to be appropriate and reasonable to effect removal."
These statements are inaccurate in the following significant respects:
(1) Passage in the statement:
1. "In considering this case, I was satisfied that there was such a change of circumstances in this case as to warrant refusal under paragraph 321A of HC 395 9 (as amended) and paragraph 320."
2. CIO Davies's recollection of this decision was wholly unreliable since he started his statement with the assertion that he was considering whether there was a change of circumstances warranting a refusal of leave to enter under paragraph 321A of the IRs. He was in fact considering whether there was a different purpose warranting the cancellation of leave to enter under paragraph 2A(2A) and (8) of schedule 2.
(2) Passage in the statement:
3. "On that basis, I was satisfied that I could restrict the passenger's appeal rights under section 89 of the Nationality, Immigration and Asylum Act 2002".
4. This is also a fundamental misapprehension. CIO Davies was not concerned with restricting Radha's appeal rights and this should not have formed any part of his consideration. A visa national whose leave to enter was refused had no rights of appeal. This was the consequence of section 89(1) of the NIAA since Radha's case was being considered on the basis of her purpose of entry specified in the entry clearance being different from that for which her purpose in entering.
(3) Passage in the statement:
5. "This individual had initially sought leave to enter for a period of three months, subsequently changing this to a period of five months."
6. Radha had stated in the preliminary and further interviews, as reported, that her application had been for entry clearance for a period of six months and she had indicated in the application that that she intended to stay in the UK on a family visit for a period of three months. However, she had left the buying of her return ticket to her father-in-law and he had, without consulting her, bought a return ticket for a date about five months after her arrival in the UK but on a date within the six-month period of her entry clearance. She appears to have been open and accurate in what she was reported to have said and that report showed that what she had said was different from the statement that she had sought leave to enter for three months or that she had subsequently changed this herself to a period of five months.
(4) Passage in the statement:
7. "However, at the initial desk interview conducted by another officer, Ms Patel had said that she would be sewing curtains for her sister for payment."
8. This is an inaccurate paraphrase of what was stated on the landing card. As reported, she stated that she would "help her sister sew curtains". As reported, she also said that "She will get paid". That statement did not necessarily directly link the payment to sewing curtains. At best, she stated, again as reported, that her sister would pay her for the unspecified help that she would provide. In fact her evidence was that her sister would be providing her with "spending money" whilst she was in the UK as part of her sponsorship of her family visit.
(5) Passage in the statement:
9. "Mr Newton told me that this was put to her brother who was at the airport to meet her and that he denied that the passenger would do any work in the UK."
10. IO Newton's report of what Laxman told him made no mention of any denial that Radha would be working in the UK. Laxman's evidence was that he explained at some length to IO Newton that Hansha was not permitted to bring sewing work home and that Radha would not be sewing curtains or helping Hansha to sew curtains. Moreover, there would have been on Radha's file a copy of her solicitor's PAP letter dated 25 May 2011 which included a copy of Hansha's contract of employment which contained a prohibition on her bringing work home or undertaking similar work for other clients at home. Thus, whatever CIO Davies was told by IO Newton, it does not appear to have been a full and accurate account of what he was told. It follows that this is a further passage on which little reliance can be placed.
(6) Passage in the statement:
11. "I considered the discrepancy between what had been said by Ms Patel and what her brother had said in stating that she would be undertaking no work in the UK."
12. Given the discrepancies in the evidence, it is impossible to identify what CIO Davies is contending to be the discrepancies he was considering. Moreover, despite the evidence by then available as to what Radha's evidence was, and in particular her evidence that she never stated that she would be helping Hansha sew curtains, would work sewing curtains or would be employed sewing curtains, CIO Davies gives no evidence as to why reliance could be placed on the notes of either of the two interviews that were noted up.
(7) Passage in the statement:
13. "I was of the opinion that he would be unlikely to confirm that his sister would work whilst here."
14. There is no explanation as to why Laxman would be unlikely to confirm that Radha would work. This comment appears to suggest that Laxman's statements about Radha's intentions could not be relied on in any circumstances. CIO Davies needed to weigh up all the available evidence presented to him but his statement suggests that he either took no account of the evidence he was given that pointed to the conclusion that Radha had no intention of sewing curtains or he was not provided with that evidence so that his decision was flawed on that basis.
(8) Passage in the statement:
15. "Reliance is placed on the interview notes which are signed by the interviewing officer and countersigned by the passenger as being a true account of the interview."
16. There is no indication that CIO Davies considered the possibility that the interview notes were inaccurate and did not, in any event, disclose that Radha was intending to obtain employment sewing curtains as opposed to some lesser form of involvement in the curtain sewing which did not amount to either work or employment.
(9) Passage in the statement:
17. "As the passenger had twice said that she would be working whilst here for monetary reward."
18. Radha, as reported in the notes of both interviews, never referred to "working for monetary reward". Instead she said "She will give me money for helping her" (answer 9), "I don't know how much I would get" (answer 26).
(10) Passage in the statement:
19. "I was satisfied that this was not the purpose for which her visa was issued and authorised her refusal."
20. This concluding statement typifies the unreliability of the statement. It suggests that CIO Davies was considering a change of purpose case and not, as stated at the beginning of the statement, a change of circumstances case. At no stage did he explain why what Radha said that she would help or work sewing curtains amounted to employment or why he disagreed with CIO Khan's view as reflected in his notes placed on the CID log that the decision to refuse Radha leave to enter had been withdrawn because it was not possible to show that Radha intended to be employed.
Conclusion - CIO Davies's first statement. Overall, this statement was drafted 14 months and served 18 months after his decision and after all Radha's evidence was available and not long before the anticipated hearing of this judicial review. It is highly inaccurate and provides a significantly different basis for his original decision to cancel Radha's leave to enter and refuse her leave to enter. It has all the hallmarks of a hurried attempt to find an after-the- fact justification for that decision.
It is noteworthy that CIO Davies did not appear to take account of, or give any weight to, the decision of the immigration judge in the first FtT appeal that Radha's purpose in visiting the UK was for a family visit and that she would comply with all the terms of her visa. Clearly, it was open to the IO investigating her purpose in coming to the UK to take a different view but only after all the evidence had been weighed up and a conscious decision taken that the immigration judge's decision was either mistaken or that he had been misled. However, there appeared to be no basis or evidence for either view to be taken of the immigration judge's decision.
(11) PAP letter
PAP letter. As soon as he was able to on 24 May 2011, Laxman contacted a firm of immigration solicitors on her behalf who immediately contacted the Heathrow Central Caseworker Unit of Border Force and asked for a copy of the decision refusing her leave to enter. The IO that the legal representative spoke to informed her that Radha had no appeal rights. Given that the stated purpose of Radha's visit was a family visit, it was or arguably should have been known to the IO that Radha had a potential in-country right of appeal on human rights grounds. The decision was faxed to the legal representative. As a result of this intervention, Radha's removal directions were varied so that her removal was postponed until 21.00 on 26 May 2011.
Urvi Shah wrote a PAP letter that was served Terminal 4 Heathrow Central Caseworker Unit on 25 May 2011. The letter was written without Radha or her solicitors having at that stage seen a copy of the interview notes made of either the preliminary interview or the further interview. The salient points made in the letter were:
(1) Radha was interviewed on at least six or seven occasions during which she was not questioned but informed again and again that the only reason she had arrived in the UK was to work. Radha had throughout denied these accusations which had caused the interviewing IO to get even angrier than he had been before.
(2) Radha informed the immigration officers interviewing her that her sole purpose in coming to the UK was to visit and stay with her family.
(3) Radha never informed the immigration officers that she would assist Hansha to sew curtains for which she would receive monetary reward. This was not factually possible since Hansha worked for Pat Giddens Ltd and the terms of her contract with that employer forbade her from taking work home and from engaging in similar work from home. A copy of her employment contract was enclosed with the letter confirming these firm requirements.
(4) Radha had no choice but to sign the interview notes even though she was not aware of what she was signing.
(5) The UKBA should have considered and taken account of the fact that the immigration judge allowed her appeal against the ECO's visa refusal decision because he was satisfied that Radha would comply with her conditions of entry and leave the UK at the end of her visit. It should also have taken account of Laxman's statements to the immigration officer that Radha's purpose was to pay a family visit and repeatedly denied that her purpose was to work in the UK.
(6) The SSHD's refusal decision was given mala fide, was contrary to the Immigration Rules and was unlawful If the SSHD was not prepared to reconsider that decision, she would file a claim for judicial review and she should be released on temporary admission until the final outcome of that claim.
(12) Refusal to withdraw decision
UKBA's refusal to withdraw decision of 25 May 2011. A duty officer considered the letter. The name of that IO was not revealed by the illegible signature on the letter sent in reply to the PAP letter although an internal minute sheet signed by IO Ghudial suggests that he is the signatory. The CID entry for 25 May 2011 and Duty Officer Ghudial's minute sheet stated that the PAP letter was referred to CIO Norris but there is no other independent evidence that it was. Duty Officer Ghudial stated laconically that "It was decided that the decision would stand as the passenger sought entry for employment". As a result, Duty Officer Ghudial informed Urvi Shah the same day that the refusal decision would stand, TA would not be granted and the removal directions for 26 May 2011 would be proceeded with. Whichever IO, if any, considered the PAP letter, there is no disclosed record of the decision itself and no evidence of what if any material was considered. At best, Duty Officer Ghudial, on instructions from CIO Norris or some other IO or on his own initiative, merely read the terms of the decision and perfunctorily dismissed the application. No, or no adequate consideration appears to have been given to the terms of the PAP letter which set out in detail why the refusal and detention decisions were unlawful in terms that have never substantially altered.
(13) Radha's JR claim
Radha's JR claim. Urvi Shah then filed this judicial review claim on 26 May 2011 supplemented by detailed grounds seeking a renewed application for permission to apply for judicial review dated 14 October 2011. The claim sought a judicial review of the decisions to detain her by way of declarations that these were unlawful and a claim for interim relief by way of her being granted bail and release from immigration detention. The claim also sought damages arising from her alleged false imprisonment and unlawful detention. It further sought damages for misfeasance in public office, abuse of process and breaches of the Human Rights Acts ("HRA") arising from her treatment by the SSHD and by IOs in deciding to detain her and in the decisions taken in relation to her unlawful detention. The claims repeated the allegations in the PAP letter and claimed general, aggravated and exemplary damages.
These claims contended that the assessment of damages should take account of what was contended to be the outrageous circumstances of her unlawful detention, the SSHD's abuse of process in failing to give effect to the decision of the immigration judge allowing her first appeal, the arbitrary and malicious treatment that she was subjected to whilst in detention, the unfair and oppressive manner in which the inter-linked decisions refusing her entry and detaining her had been reached and abusive, malicious, intimidating, hostile, humiliating, degrading and offensive treatment meted out by the SSHD when interviewing her and in resisting her attempts to seek compensation, vindication and just satisfaction for the unlawful detention and related treatment that she had suffered.
The claim included these passages:
she was interviewed repeatedly and then detained and subjected to enforced removal because she is alleged to have said in interview that she would be sewing curtains for her sister at home. There is no evidence of the claims made by the defendant and they are completely denied by the claimant.
26(iv) The decision was reached unfairly and in an oppressive manner
Serious allegations were made against her when the claimant should have felt assured by her successful appeal. Her experience of then being detained was completely alien to her and she was then subject to removal directions. The whole process amounted to inhumane and degrading contrary to Article 3 or was a disproportionate violation of her privacy contrary to Article 8."
In the summary ground of defence dated 9 August 2011, the SSHD denied all her claims and justified her detention of Radha by reference to her alleged admission to IOs during her preliminary and further interviews that she would be assisting Hansha sewing curtains at the family home for financial reward.
Radha's evidence also detailed her time in immigration detention in her first statement dated 11 March 2011. This was to the following effect:
(14) Radha's time in immigration detention
15. During my stay in Colnbrook detention centre I was once again repeatedly told that I will be removed any time and I should not rely on my legal representation and that my lawyer will not be able to get me out. I felt that they were making sure that I stayed stressed and back out and decide to go back to India. My lawyer was constantly in touch with me and my brother. Every half an hour two officers would come and tell me that I will be removed in next 15 minutes so I must get ready. I was getting more and more distressed. I did not have any mobile phone with me by which I could stay in touch with my family. [Laxman] informed me that it was very difficult in fact next to impossible to contact me and then he was made to wait for around 30 minutes before his calls were transferred to me.
16. On 25 May 2011 in the evening suddenly officers came and without telling me anything took me in a van and transferred me to another place. I asked them if my family is being told about this transfer. No one was ready to tell me anything. At that moment I was very scared and had very negative thoughts in my mind, like maybe they will put me in prison without informing my whereabouts to my family.
17. I was transferred to a different detention centre at Yarl's Wood Immigration Detention Centre.
18. In the meanwhile I was informed by the officers once more that my application for temporary admission was refused and that as I did not have any in country appeal rights my flight tickets were booked once again and that I will be leaving for India in next 30 minutes. I once again panicked and when my brother called me, I was crying uncontrollably, however he assured me that a Judicial Review application was being filed on my behalf in the High Court and we were waiting for its decision. I spoke to my solicitor about my case and I was reassured that my application in Administrative Court will be filed ASAP. My brother also gave me such assurance and asked me to be strong and fight the injustice done to me. I was getting very difficult for me in the detention centre as I had difficulty in food which was being given and I did not have proper sleep or rest since my arrival.
19. On 29 May 2011 I was released on temporary admission with conditions attached to it like going for signature at Eaton House, Hounslow, every week. It is very unfair of the UKBA to deny me entry after I won my appeal. The immigration officer did not have any regard to the Immigration Tribunal determination dated 9 March 2011.
I have been in the UK since 23 May 2011 and my intention was to visit my parents and my siblings for a period of three months and thereafter go back to India to my family and specially my two minor children. Now due to the injustice done to me I have been away from my two minor children for over 9 months. It is submitted that as my appeal in the tribunal was pending I could not leave the country or else my appeal would be considered as withdrawn. During this time, my family especially my two young children have suffered a lot without their mother. It is highly unfair on the part of the home office not to have allowed me to enter as a visitor and meet my parents and siblings. I feel as if I am in a prison and not allowed to go back home. I had come to spend time with my parents, brother and sister, however this visit has ended in a nightmare. Now I wish to return back to India as also my sister, who is also my sponsor, is getting married in April 2012 and my whole family is going to India, however due to this ongoing litigation I may not be able to go back to India on time to attend my younger sister's wedding. Moreover, my passport is still with the UKBA.
Not only have I suffered mental agony, stress and anxiety but my family here in the UK and in India suffer mental agony, stress and anxiety due to my ordeal. My brothers and sister have also incurred huge expenses in the form of appeal fees paid to the lawyer. Now that the Immigration Judge has also after considering evidence from both sides has confirmed that my refusal of leave to enter was unlawful.
Laxman in his witness statement served in September 2011 stated that he and his family had incurred huge expense and lots of stress as a result of their experience arising from Radha's refusal of leave to enter, detention and the subsequent on-going litigation and constraints of temporary admission. He explained that Radha had been crying for days and was very apprehensive about coming back to the UK to see her elderly parents.
(15) CIO Khan's withdrawal and temporary admission decisions dated 28 May 2011
CIO Khan's withdrawal and temporary admission decisions dated 28 May 2011. On receipt of the notification of the claim, Border Control suspended her removal directions and the file was passed to CIO Khan at Heathrow Central Control Unit to again review the file. On 28 May 2011, CIO Khan, reviewed the decisions and decided that the decision to withdraw the decision to cancel her leave to enter. His reasoning as noted in the CID was that:
"There are two strands to this review (both of which are inextricably linked):
1) The defensibility of the decision
2) Whether to maintain detention in light of the above.
I can only review the file in the light of the information before me on the file itself, as well as that contained in the legal representations and claim form. The central tenet of the refusal is that the passenger's [Radha's] leave as a visitor has been cancelled on the basis that she had stated that she would undertake paid employment in the United Kingdom.
Her representatives argue that she did not make the admissions as stated on the refusal wording and are now contesting the veracity of the transcripts. This contention is not so much my concern as in my mind the interview transcript clearly documents her responses attesting to these admissions. The question is over the employment itself. She has stated that her sister would be her employer and would give her payment for working at home helping her 'sewing curtains'. I imagine that given the family connection, the passenger's sister will also contend that there was confusion over the issue of employment and indeed this has already been intimated in the claim form. There is no formal employer as such to contact, which I foresee to undermine our position. Furthermore, during the interview she also states that she has primarily come to the United Kingdom to visit her family members.
I also note that the passenger's entry clearance was granted on appeal and at present, I do not have sight of the allowed determination, which I consider to be an important piece of evidence that at this moment is unavailable.
My initial view is that the decision to cancel leave was correct, but the limitation of appeal rights and the transpired judicial review of the decision would be difficult to defend against on scrutiny. As such, the most likely option will be to offer an alternative remedy be serving a fresh decision to cancel leave and afford suspensive appeal rights under section 92 of the 2002 Act. Nonetheless, I am unwilling to do this until I have seen the allowed determination regarding the passenger's successful challenge against the entry clearance refusal.
In an effort to avoid the matter going to the TSols and the ensuing public costs this will entail (even in the preliminary stages), I have written to the legal representatives advising that the decision has been withdrawn and the matter is being reconsidered. I have also served the representatives with a copy of the interview transcripts. Hopefully this will serve a de-facto 'consent order' and they will be amenable to this proposal.
Given the above, I am not of the view that detention can be maintained until these issues are ironed out. As such, I am authorising temporary admission
for three months, no work and weekly reporting."
This note by CIO Khan on the CID shows that he withdrew the decision cancelling Radha's leave to enter. It can be seen that his reasoning was in summary that the evidence in the notes of the preliminary and further interviews did not show that Radha intended to take employment sewing curtains but instead showed that she merely intended to help Hansha out as a family arrangement. However, he considered that it was possible that, on seeing the immigration judge's determination allowing her appeal against the ECO's refusal of her visa, he would conclude that there would be sufficient to justify the issuing of a fresh decision refusing her entry in a way that would enable her to appeal that refusal in-country. He would only issue a fresh decision if it appeared from reading that determination that there was some basis for taking that course.
There is no evidence on the CID log that CIO Khan checked the FtT's determination of Radha's appeal against the ECO's refusal decision. However, that checking would have only taken a few minutes since it could have been done on-line. It is to be inferred that he made that check there and then and decided that there were no grounds for issuing a further decision with the result that his withdrawal decision stood.
Confirmation that CIO Khan withdrew the decisions taken on 24 May 2011 and that no further decision was issued soon afterwards is provided by this file note dated 1 July 2011 that was made by the case presenter who presented the SSHD's case at Radha's second appeal which was placed on Radha's file:
"I took instructions from SCW [the Case Work section of UKBA] about what immigration decisions were current live and SCW reviewed CID. I was instructed that the minute of 28 May 2011 clearly stated that the decision (presumably whichever was valid) had been withdrawn and the solicitors had been notified."
The legal effect of CIO Khan's decision was that, from 29 May 2011 namely from 24 hours after the withdrawal decision was made, Radha was deemed to have been granted leave to enter as a visitor in the UK for six months. A decision in those terms should have been promulgated and served on her, her passport should have been returned to her with the reissued visa stamped in it and she should have been discharged from immigration detention and temporary admission on that basis and granted leave to enter for six months. Instead, following CIO Khan's decision to withdraw the cancellation of her leave to enter and to grant her temporary admission, Radha was discharged from immigration detention during the morning of 29 May 2011 on temporary admission subject to a condition of weekly reporting and the SSHD retained her passport. Since the withdrawal decision was not itself withdrawn, there was no legal basis for only granting her temporary admission or to impose a weekly reporting condition and she should have been granted 6 months permission to enter as a visitor, her passport should have been returned to her stamped appropriately to make it clear that her visa had been reinstated and it should have expired after entry had been granted by the withdrawal decision of 28 May 2011 and her temporary admission and reporting obligation should have been cancelled.
Radha's solicitors received a letter from CIO Khan dated 28 May 2011 which informed them that:
"Having considered your client's case, I am minded to withdraw the decision to refuse your client entry and examine her case afresh.
the most likely circumstance will be that your client will still be refused entry, but now afforded a right of appeal from within the United Kingdom. At the current juncture, my team will be conducting some residual enquiries and once completed, a new decision will be made and communicated to both you and your client.
In view of the forgoing, I would be grateful for your views in respect of withdrawing from the judicial review as an alternative remedy will be available for your client, namely that her matter will be independently considered by the Immigration and Asylum Chamber. I believe this will be a pragmatic and sensible way forward and will avoid unnecessary litigation and costs. I am optimistic that our enquiries will be completed within the coming week."
This letter inaccurately stated that CIO Khan was minded to withdraw the cancellation decision. In fact, he had already withdrawn it and he did not issue a fresh decision following the fresh examination of her case, let alone one with the right of an in-country appeal. Indeed, there is no evidence that he did undertake any examination of the reasons given by the ECO for refusing her application for a visa or for the FtT immigration judge for reversing that decision on appeal Furthermore, the proposal did not provide an alternative remedy since Radha already had an in-country right of appeal against the decision refusing her entry by virtue of her human rights claim and her other claims seeking declarations and damages for misfeasance, abuse of power, breaches of the HRA and unlawful imprisonment could be claimed and recovered in the judicial review but not in the FtT appeal. It would appear that CIO Khan had no intention of reviewing his decision to withdraw the cancellation decision or of issuing a new decision and was offering the suggested "pragmatic and sensible way forward" as a smokescreen in the hope that Radha's solicitors would withdraw the judicial review and thereby prevent the errors and serious misconduct that occurred when the withdrawal decision was made coming to light.
The explanatory statement added to the confusion by asserting as follows:
"On 28 May 2011, the matter was transferred from Heathrow Terminal 4 Central Casework Unit in order for all further action to be carried out in the matter. The matter was reviewed by CIO Khan who considered that in order to avert judicial review proceedings, he was prepared for to (sic) withdraw the limitation of appeal rights imposed by section 89 and reissue the decision and afford a suspensive right of appeal at the Immigration and Asylum Chamber. A letter was then sent to the representatives by facsimile and post reflecting this offer (as well as attaching copies of the interview transcripts); however no response was ever received from the representatives."
This statement, when carefully analysed, made no sense. This is for the following reasons:
(1) CIO Khan had in fact decided to withdraw the decision of 24 May 2011 and had then withdrawn it. It followed that he could no longer make a valid offer to withdraw that decision.
(2) The decision of 24 May 2011 could not be reissued so as to give suspensive rights of appeal since the decision had been to cancel the leave to enter for change of purpose which did not carry a right of appeal of any kind.
(3) The withdrawal or cancellation of the decision of 24 May 2011 could only lawfully have occurred if new information had come to light which justified the reversal of the refusal decision. A withdrawal was not something that could be "negotiated" where no new information had come to light.
(4) In this case, the 24 May 2011 decision was withdrawn or cancelled unilaterally by CIO Khan on 28 May 2011. Unless Radha had been served with notification of a grant of indefinite or limited leave to enter within 24 hours of that fresh decision cancelling leave and refusing entry, the cancellation notice would have been deemed to have given her 6 months limited leave to enter on Code C. Thus, in Radha's case, the only way that the SSHD could have dealt with her after 24 May 2011 would have been to cancel or vary her deemed grant of 6 months limited leave to remain for good reason as provided for in the IRs, which decision would have entitled her to an in-country right of appeal.
(5) The decision of 24 May 2011 was not subject to a limitation of appeal rights as stated. Although it was an immigration decision, it carried no appeal rights because it was based on the changed purpose of her entry in a way that brought into play section 89 of the NAIA that excluded any form of appeal save for her in country rights of appeal arising from the rejection of her human rights claim.
(6) A "suspensive" right of appeal that was referred to was one which was in-country and which, where it existed, suspended removal directions pending the appeal being pursued in the FtT. Such a right of appeal could not be provided by re-issuing the decision of 24 May 2011 with an adjusted right of appeal attached to it since it did not carry a right of appeal at all.
(7) The only way that Radha could obtain an in-country right of appeal (assuming she had no human rights claim) would have been for CIO Khan to have withdrawn the decision of 24 May 2011 which refused her entry because the purpose of her application for entry was different from the purpose provided for in her entry clearance and immediately issue a fresh decision of a different kind, namely that her leave to enter or her entry clearance should be withdrawn because there had been a change of circumstances between the grant of entry clearance and the present time. Such a decision would have carried an in-country right of appeal. However, the suggested way forward as summarised in the explanatory statement was not of that kind.
What has never been explained is why CIO Khan was contemplating reissuing the decision so as to give Radha a right of appeal at all. The decision was either sustainable and therefore carried no rights of appeal or, as he had decided, it was not sustainable and should be withdrawn. There was no halfway house save for him to have admitted that it was not sustainable that Radha had changed the purpose of her visit but that, having been granted entry clearance, there had subsequently been a change of circumstances which warranted the cancellation of her leave to enter. That change of circumstances would have had to have been something other than a change of purpose since if there had been a change of purpose, there was no reason to grant her a right of appeal she already had one.
Furthermore, it is incomprehensible for CIO Khan to attempt to negotiate the withdrawal of Radha's judicial review. He was solely concerned with the cancellation of her leave to enter and the refusal of leave to enter, neither of which formed part of the subject-matter of the judicial review. Moreover, it was not his business to become involved in the judicial review unless for ulterior purposes he wished to have it withdrawn. The on-going judicial review was the concern of the SSHD's legal representative, as an IO he was solely concerned with immigration matters including immigration detention which he had dealt with by granting Radha temporary admission and releasing her from detention.
It was also incomprehensible for CIO Khan to have granted Radha temporary admission having withdrawn the decision to refuse her leave to enter and not having issued a further decision re-imposing that refusal on different grounds. Since, as was subsequently held to be the case by the second FtT appeal, no outstanding decision was in place, it was not lawful to release Radha on temporary admission, she could only have been released with 6-months leave to enter.
CIO Khan's actions and motives on 28 May 2011 conclusions. In short, the explanatory statement appeared to be a further attempt to cover up the error in issuing the cancellation decision in the first place.
(16) FtT second appeal and explanatory statement
FtT second appeal initiated. Radha's solicitors, having been informed that CIO Khan was minded to withdraw the cancellation of Radha's leave to enter and the refusal of leave to entry decisions and replace them with similar decisions carrying a right of appeal, instituted Radha's second appeal on 1 June 2011, being an in-time appeal on human rights grounds against the decision dated 24 May 2011. Urvi Shah had reasonably concluded on the basis of CIO Khan's letter that the decision dated 24 May 2011 remained in place and that the letter was offering Radha nothing except the right to an in-country appeal of that decision which was a right that she already had. Neither Urvi Shah nor Radha was informed or was aware that the decision had been withdrawn until informed of this by the case presenter during the hearing of her second appeal.
The notice of appeal challenged the decision on the grounds that it was unlawful. This unlawfulness arose because the claimant was interviewed on several occasions maliciously and in an intimidating, hostile, humiliating, degrading and offensive manner. Although it was alleged by the notice of refusal of her leave to enter that she had admitted that she was not a genuine visitor and was seeking entry as a visitor but with the intention of working in interview, she had never stated in the various interviews that she had that she would assist her sister in sewing curtains. These denials were supported by the terms of her sister's contract of employment which had already been communicated to the SSHD which forbade her from working at home.
CIO Khan's "decision" which had the effect of "dismissing Radha's appeal". According to the explanatory statement, CIO Khan again reviewed the decision dated 24 May 2011 on or after 1 June 2011 after Radha's solicitor had lodged her notice of appeal against the refusal of leave to enter. This review took place, according to the explanatory statement, even though the decision being reviewed had already been withdrawn. The explanatory statement suggested that CIO Khan reviewed the file in great detail. There is no evidence on the file or on the CID log that this review took place and no reference to it was placed in the hearing bundle or provided to the FtT immigration judge at the hearing of Radha's second appeal. There is no evidence to support the suggestion in the explanatory statement that this review took place and the suggestion appears to have been made in an attempt to provide support for the conclusion that the original decision was lawful. In reality, it would seem that this suggestion that a further review took place is untrue and that the review that is referred to never took place.
This conclusion is reached in part because there is no other evidence that a review took place and because it is referred to as a "review of the matter" at the beginning of the report of the review and, at the end of that report, it stated:
"In view of the foregoing, it was considered that no new information had been offered that was persuasive to the decision being altered and that, in turn, that the appeal should be dismissed."
That comment suggests that the whole report of this non-existent review was an attempt to influence the FtT immigration judge to dismiss the second appeal on the grounds that the very careful review that it suggested had been carried out showed that the original decision was correct. No explanation has ever been provided by CIO Khan as to why there is no other record of this review being carried out and why he made no reference in this explanatory statement to his decision withdrawing Radha's leave to enter.
The service of the explanatory statement. The appeal was listed for a hearing on 30 June 2011. The SSHD served no statements or a hearing bundle prior to the hearing. The SSHD case presenter served at the outset of the hearing the explanatory statement. This explanatory statement was unsigned in the copies disclosed to the FtT and to Radha's legal team but the copy disclosed during this judicial review was signed by CIO Khan and by a signatory whose signature resembled the initials of IO Newton which he has accepted in his second statement were his. Moreover, the explanatory statement could not have been prepared save with the assistance of IO Newton since it contained a detailed account of Radha's further interview and the basis of the decisions taken on 24 May 2011 which no other IO could have provided.
The explanatory statement is one that plays an important part in the hearing of an appeal against an immigration decision. Its role and evidential function was explained in a decision in the Crown Office List (the forerunner of the Administrative Court) in R v Immigration Appeal Tribunal, ex parte Weerasuriya. It is intended to be a statement of the facts relating to the decision or action in question and the reasons for it that is prepared by the SSHD. It is capable of being evidence of its contents. Given that that is its purpose, the statement should identify the source of the facts it contains and provide copies of any supporting documents including statements. The explanatory statement should be prepared on the standard form devised for that purpose and signed by the IO who prepared it and counter-signed by a CIO who may have assisted in preparing it and who is approving and authorising the IO's input. Clearly, the signature should be accompanied by a printed or legible identification of the signatories.
The circumstances leading to the preparation of this explanatory document are significant. The relevant IOs involved in Radha's investigation, refusal decisions and detention were well aware that Radha was disputing these decisions and her detention on the grounds that they relied on admissions she had allegedly made which she vehemently denied making. From the outset, Radha and her solicitor were alleging that the statements attributed to her were falsely attributed to her and had been made up. Her defence was, therefore, that the evidence of her alleged admissions was fabricated. She had challenged her detention in this judicial review and CIO Khan had reviewed that detention decision and the other underlying decisions and had decided to withdraw them and release her on temporary admission. It is clear that he hoped and expected that that would be the end of the matter. No doubt to his surprise and consternation, he found within a day or two that Radha had intensified her attack by serving an appeal notice against the decisions, of course being unaware of their withdrawal since CIO Khan's withdrawal decision was never served.
It was in that situation that CIO Khan and IO Newton met on 25 June 2011 to prepare the explanatory statement for the hearing of an appeal which would be considering her allegation that IO Newton had falsified or fabricated the material parts of her further interview. A decision must, by then, have been taken that neither would be giving evidence or serving a statement. The somewhat coloured version of the relevant facts, in respects already described above, was prepared and served in an anonymised form, presumably so as not to identify them as its authors. Even if, as a result, it was not capable of being evidence in the FtT hearing, it is a source of evidence as to their states of mind, as to whether Radha's accounts of her further undocumented interviews took place and as to whether or not the relevant parts of the relevant interview summaries were genuine or fabricated.
Significant errors and omissions in the explanatory statement. The explanatory statement contained a number of significant errors and omissions. These included the following:
(1) The immigration judge did not, as suggested, express significant concerns regarding Radha's financial circumstances in India (paragraph 10).
(2) The preliminary interview was not conducted with the assistance of a Home Office Gujarati interpreter as suggested but was instead conducted with a Hindi-speaking WIO who acted as an interpreter for IO Newton.
(3) If the subsequent evidence of CIO Davies was correct, IO Reeves and not IO Newton as stated was at the Primary Check Point when Radha presented herself to immigration facilities on arrival (paragraph 2), conducted Radha's desk interview (paragraph 5), was not satisfied with Radha's answers and issued her with an IS 81 cancelling her leave to enter (paragraph 6) and inspected the Home Office systems in order to ascertain the basis upon which she had been granted leave to enter and a visitor's visa (paragraph 7). No explanation has been provided to explain how this substantial error occurred if it did occur.
(4) It made no reference to the several informal interviews carried out prior to the further interview.
(5) It suggested that a sponsorship interview took place with Laxman by telephone whereas it was carried out face-to-face, it infers that this interview only elicited very limited information from Laxman that did not include anything about Radha's intentions during her visit, Hansha's work and working arrangements or her purpose in coming to the UK whereas Laxman's evidence was that he gave a full explanation of all these significant and relevant topics and it makes no mention of the fact that this interview took place four hours after Radha had been detained for further investigations and it provides no explanation for this lengthy delay following her detention (paragraph 8).
(6) It suggested that IO Newton "upon her arrival" was of the view that that her matter fell to be considered under the change of circumstances provisions of paragraph 321A of the IRs (paragraph 10). In fact, her matter was considered both prior to and during her temporary detention and was decided at the end of her detention under paragraph 2A(2A) of schedule 2 to the IA in relation to her entry for a different purpose. The error was then compounded by the suggestion that IO Newton "accepted that her entry clearance could only be cancelled under paragraph 321A" and that IO Newton refused her leave to enter for change of circumstances under paragraph 321A of the IRs and then limited her rights of appeal due to her different purpose in entering. In fact, IO Newton concluded that the only basis for cancellation was for a different purpose and cancelled her leave to enter on that basis. This decision carried no right of appeal (save on human rights grounds) although it was erroneously suggested that it limited her right of appeal. These errors were significant and appeared to have been made so as to mask the actual basis of decision.
(7) It suggested that Radha had stated in interview that she would work in the UK and that she had discussed her future intended employment in the UK with Hansha (paragraph 10). In fact, as recorded in the notes of both her preliminary and further interviews, she only referred to helping Hansha. The notes do not record her as stating anything that could reasonably lead to the inference that she was to be employed, whether by Hansha or anyone else.
(8) It suggested that the only decision taken by CIO Khan on 28 May 2011 was to inform Radha's solicitors that he was prepared to consider reissuing the decision to afford Radha a right of appeal in order to avert judicial review proceedings (paragraph 12). In fact, CIO Khan considered that the SSHD would not be able to defend the actual basis of decision that her different purpose was to seek employment, that there was insufficient evidence to conclude that she was to be employed at all and he withdrew the cancellation of leave decision in its entirety and did not issue or reissue any decision thereafter to replace that decision (paragraph 12).
(9) It suggested that the matter was reviewed in detail again on a date between 1 and 30 June 2011 (paragraph 14 15). In fact there is no other evidence that the matter was reviewed in that period either in detail or at all.
(10) It suggested that the second appeal was struck out on the basis that the SSHD could offer a fresh decision (paragraph 16). In fact, the second appeal was struck out because the basis of the appeal had disappeared because the SSHD's different purpose decision had been withdrawn by the SSHD. Moreover, the second appeal decision did not suggest, permit or proceed on the basis that the earlier decision could be reissued. Instead, it directed the SSHD to grant Radha leave to enter forthwith or instead to issue a fresh decision on a lawful basis forthwith that would cause her entitlement to be granted leave to enter that had arisen following the withdrawal of the earlier decision to be cancelled or withdrawn.
(11) It suggested that IO Newton was entitled to conclude that Radha's intention was to seek employment after entry (paragraph 16). In fact, as CIO Khan had subsequently decided, there was no or insufficient evidence from her interviews that she was intending to seek employment and it is clear in any event that IO Newton was not entitled to conclude that she was so intending.
(12) The explanatory statement was unsigned in the copies that were served on the FtT and Radha's counsel at the FtT second appeal hearing although it was signed by CIO Khan and IO Newton on the copy left on Radha's file and subsequently disclosed in the judicial review.
(13) It provided no explanation for the issuing of a fresh decision on 9 August 2011 or why the SSHD was entitled to issue a decision that "largely reflected the previous notice of refusal" (paragraph 17). In fact, the fresh decision was based on change of circumstances whereas the previous decision was based on different purpose. Moreover, since Radha had been entitled to be granted leave to enter following the decision to withdraw the cancellation of her originally granted leave to enter, the fresh decision had to be but was not based upon circumstances that had changed since her grant of temporary admission.
(14) The revised explanatory statement failed to refer to the withdrawal by CIO Khan of the first decision withdrawing Radha's leave to enter (paragraph 17). It also failed to refer to the Treasury Solicitor being instructed to prepare summary grounds of defence by reference solely to the terms of the explanatory statement so that CIO Khan's withdrawal decision was not referred to in the summary grounds of defence with the consequence that the first permission decision refused Radha permission to apply for judicial review. In fact she had irrefutable grounds for being granted leave.
(15) The revised explanatory statement also suggested that Radha's grounds of appeal for her third FtT appeal are largely the same as those for her second FtT appeal which had been dismissed (paragraph19). In fact, her grounds of appeal were different and even stronger for her third appeal than for her second appeal and, not surprisingly, the third appeal was allowed.
(16) The revised explanatory statement was unsigned in the copies that were served on the FtT and Radha's counsel at the FtT third appeal hearing as well as by CIO Khan and IO Newton on the copy left on Radha's file and subsequently disclosed in the judicial review. However, the SSHD informed Radha's solicitors that it had been signed by the IO who had prepared the first version on 1 October 2011 without identifying that officer or those officers. The reasonable meaning of this comment is that whoever signed the first version had approved and signed the second version.
The second FtT appeal hearing. The presenting officer who was instructed to represent the SSHD at the hearing of the appeal on 30 June 2011 had not been provided with any papers and the SSHD had not served any papers. At the outset of the hearing on 30 June 2011, the immigration judge instructed the presenting officer to take instructions as to which of the two decisions, that is the composite decision taken on 24 May 2011 and the decision taken on 25 May 2011 confirming the first set of decisions, remained current and which had been voided. The presenting officer telephoned a Senior Case Worker who reviewed CIO Khan's entry on the electronic CID log and then informed him that the valid decision had been withdrawn. When the immigration judge was informed that there were no pending decisions, Radha's counsel, the presenting officer and the immigration judge agreed that there was no pending appeal and an order was promulgated dated 5 July 2011 that there was no relevant decision so that the notice of appeal was not accepted. In short, the FtT judge decided that because the decisions under appeal had been withdrawn, the leave to enter was reinstated and Radha was entitled to be granted leave to enter unless the original decision cancelling her leave to enter was reinstated.
The second FtT appeal decision. It is relevant to set out the salient part of the FtT decision dated and served on 5 July 2011:
the presenting officer considered the bundle and sought instructions. He informed the hearing having spoken to a senior caseworker that there were no pending decisions, which had (both) been withdrawn. It appeared that [Radha's] solicitors had not been so notified. It was agreed therefore that there was no pending appeal. The presenting officer state that he would be making further contact with the senior caseworker immediately after this hearing.
7. In the light of the above, I direct that the [SSHD] should take immediate steps to regularise [Radha's] status and notify [Radha] and her solicitors accordingly. If their decision stands, or is reinstated, [Radha] retains her right of appeal."
CIO Khan's erroneous description of this decision. In the amended explanatory statement prepared on 1 October 2011, CIO Khan described this decision in this way:
"The appeal hearing was subsequently struck out on 5 July 2011. This was on the basis that the [SSHD] be able to offer a fresh decision, as originally offered in Chief Immigration Officer's letter [to Radha's solicitors] dated 28 May 2011
This was an erroneous way of describing the decision of the FtT dated 5 July 2011. Firstly, it was the appeal in its entirety and not just the appeal hearing that was not struck out. The FtT judge ordered that the appeal should be treated as being withdrawn and the decision as promulgated directed that the appeal was invalid. Secondly, the basis of the decision was not as described by CIO Khan. The actual basis was that, following the unpublicised withdrawal by CIO Khan of the decisions dated 24 and 25 May 2011, Radha's leave to enter had already been reinstated and there was nothing left to appeal against. .
The third significant error was the suggestion that the FtT had authorised or granted permission to the SSHD to issue a fresh decision in the form originally offered in CIO Khan's letter to Radha's solicitors dated 28 May 2011. This suggestion was erroneous on two counts. Firstly, the letter was written after CIO Khan had withdrawn the decision dated 24 May 2011. Despite that withdrawal, the letter was written on the basis that that original decision was still in place. The letter suggested that he was prepared to strike a deal with the solicitors that, if he withdrew the decision and examined her case afresh, Radha would withdraw her judicial review claim. However, the letter made it clear that it was likely that, following that re-examination, Radha would "still be refused entry but now afforded a right of appeal". As already explained, CIO Khan did not have the power to provide a right of appeal for that changed purpose decision since such decisions did not carry one.
The second inaccuracy was the suggestion that the FtT had offered a fresh decision. In fact, the FtT had directed the SSHD to give effect to CIO Khan's withdrawal decision by regularising Radha's status which could only be done by granting her leave to remain being a grant that she was entitled to following the withdrawal of the 24 May 2011 decision. The FtT decision went on to direct that if the 24 May 2011 decision was reinstated or stood, the original appeal would still stand. This was not offering anything nor was it stating that the SSHD had the power to reinstate or confirm that earlier decision, but was merely confirming that if the 24 May 2011 decision was somehow brought back to life, Radha could appeal against it using the present appeal.
The third inaccuracy was the implication that the decision dated 8 August 2011 was made at the suggestion of the FtT's direction. However, the FtT's direction was that the SSHD should forthwith regularise Radha's status with a grant of leave to remain and not to issue a fresh decision. That decision was made without any prior warning solely on the initiative of CIO Khan and had nothing to do with the FtT's decision.
Effect of the second FtT appeal decision. The effect of the second FtT appeal decision is discussed below.
(17) JR proceedings
Steps subsequent to the FtT appeal decision. The SSHD did not comply with the FtT's direction to take immediate steps to regularise Radha's status. Indeed, it only regularised her status and returned her passport in March 2012 after it had lost the third appeal. Furthermore, it did not decide that the decision of 24 May 2011 should stand or be reinstated. Finally, it failed to inform the Treasury Solicitor of CIO Khan's decision to withdraw the decision of 24 May 2011 or the FtT's second decision so that the acknowledgement of service was drafted without taking these significant matters into account.
Next steps in the judicial review proceedings. The SSHD applied for and was granted an extension of time until 19 July 2011 for filing its acknowledgement of service. This had not been served pending the second FtT appeal decision. The acknowledgment of service was not forthcoming and the papers were sent to a judge to consider the permission application without an acknowledgment of service. On 1 August 2011, Mr Holgate QC ordered that permission would be deemed to be granted unless the acknowledgement of service was served by 9 August 2011. The order stated:
"The argument as to whether detention has been unlawful appears to depend upon the basis upon which the refusal of leave to enter was reached."
As a result, on 5 August 2011, CIO Khan was contacted and asked to provide material to enable the Treasury Solicitor to draft and serve the acknowledgement of service and a summary grounds of defence document in the judicial review proceedings as a matter of urgency. CIO Khan arranged for a copy of the explanatory statement to be faxed to the Treasury Solicitor on 5 August 2011. Given the significant inaccuracies and omissions from the explanatory statement, CIO Khan must have known that the instructions he was giving for the summary grounds of defence were inaccurate and would lead to an erroneous and unduly favourable document being served on behalf of the SSHD.
(18) Fresh decision issued by CIO Khan dated 8 August 2011
Fresh decision issued by CIO Khan. CIO Khan was galvanised into responsive action by what for him was the unexpected news that the SSHD had to serve a summary grounds of defence to the judicial review claim and the Treasury Solicitor's request for instructions to enable that document be drafted. In a further apparent attempt to forestall the judicial review scrutinising the detention decision-making process, CIO Khan issued a fresh decision on 8 August 2011 that was both unexpected and unexplained. It was served on Radha's solicitors without warning on 9 August 2011 under cover of a letter from CIO Khan which stated that Radha's case had "been reconsidered" and that "the previous decision has now been overtaken by the new decision attached." The letter also drew attention to Radha's right of a full in-country right of appeal and it enclosed a copy of the relevant appeal form.
The ulterior motive for issuing this fresh decision without prior warning can only be gathered from CIO Khan's explanation for it that he drafted and inserted into the revised explanatory statement drafted on 1 October 2011:
"16. The appeal hearing was subsequently struck out on 5 July 2011.
17. [Radha's] representatives subsequently pursued the judicial review matter that had been running concurrently to the previous appeal at the [FtT]. In the interim period a fresh decision was issued to [Radha] on Home Office form IS 82C. This notice of refusal largely reflected the previous notice of refusal; however, the decision now afforded [Radha] a suspensive right of appeal under section 92 of the Nationality, Immigration and Asylum Act 2002."
This statement does not begin to explain why the original decision, which had been withdrawn over ten weeks previously, was and was able to be reconsidered or why the fresh decision had been issued unannounced and immediately prior to the service of the outline defence to the judicial review claim. This outline defence was prepared by a lawyer in the Treasury Solicitors on CIO Khan's instructions and it relied heavily on this fresh decision as providing the principal ground of defence.
The reasons set out in the decision contained the following errors.
Firstly, the appeal hearing had not been struck out as was stated. Instead, the FtT had ordered that the appeal was to be treated as having been withdrawn because the decision that was being appealed had itself been withdrawn and had not been reinstated so that no live decision refusing Radha leave to enter remained in existence.
Secondly, Radha's representatives did not "subsequently pursue the judicial review matter" as stated. The judicial review was on-going but its progress had been delayed by the Treasury Solicitor who was acting for the SSHD's and who had delayed serving an acknowledgement of service until the file holder had received instructions from CIO Khan. These had not been forthcoming pending the decision in the second appeal. Thus, the correct position could have been stated thus:
The SSHD's representatives then received instructions from CIO Khan that had been delayed until after the FtT's decision in the appeal against the refusal decision of 24 May 2011. Following the FtT's order of 5 July 2011 that that appeal should be treated as having been withdrawn because the SSHD had withdrawn the refusal decision on 28 May 2011 without issuing a further decision or reinstating the refusal decision and on the subsequent receipt of these instructions on 5 and 8 August 2011, the Treasury Solicitor was able to draft the SSHD's summary grounds of defence in the on-going judicial review proceedings which was served on 9 August 2011".
Thirdly, there was no "interim period" as suggested. The fresh decision was prompted by the realisation that the judicial review was on-going. No-one prompted it, it appears to have been issued by CIO Khan on his own initiative.
Fourthly, the decision did not "largely reflect the previous notice of refusal". It was based on the identical facts that the earlier decision had been based on but was a fresh decision that had applied those facts to a changed circumstances decision instead of a different purpose decision.
Fifthly, the decision was not a reconsideration of the decision of 24 May 2011, it was a fresh decision issued at least 9 weeks after the earlier decision had been withdrawn and nearly five weeks after the FtT had decided, in effect, that that decision had been finally and definitively withdrawn.
Sixthly, it was issued on Form 82C which is appropriate for a decision carrying an out-of-country appeal whereas the appeal being offered was an in-country right of appeal.
Seventhly, the decision did not explain why it was being made. This was particularly significant since it was issued nearly five months after the earlier decision based on the same facts had been withdrawn and without any fresh facts being relied on.
Second refusal decision conclusion. The inevitable conclusion is that CIO Khan issued the decision in an attempt to manufacture a defence to a judicial review claim that he must have considered would otherwise be likely to succeed.
(19) SSHD's acknowledgement of service
Acknowledgement of service. CIO Khan's decision was stated on its face to have been served on 8 August 9 2011 but was dated 9 August 2011. There was no explanation for this obvious but surprising error. A copy of it was sent to the Treasury Solicitor who incorporated summary grounds of defence that were based on this decision. These grounds contended the judicial review claim had become academic because the SSHD had conducted a reconsideration of Radha's case and had issued the decision to give effect to that reconsideration. The outcome was that Radha now had an alternative right of appeal so that permission should be refused since the claim was now academic. No explanation was given in the defence as to why the reconsideration had taken place, why it was considered appropriate to issue what was in effect the same decision but in a form granting a right of appeal when no right of appeal had previously existed or that the decision should lead to the withdrawal of the judicial review claim even though no relief was sought with regard to the original decision dated 24 May 2011which had in any event been withdrawn and was incapable of being resurrected.
The defence document also asserted that the refusal of leave to enter was lawful because Radha had admitted to the IO that she would be "assisting her sister sewing curtains at the family home for which she would receive monetary reward." It also relied on the interview and landing card notes as accurately summarising what Radha had said. These admissions were stated to show that Radha had an intention to take, in breach of her visa: "paid or unpaid leave" (sic) "which was not permitted under the terms of her visa". The allegation that the IOs in interviewing Radha had employed arbitrary, malicious and excessive" interviewing techniques was denied in a bare denial.
It is to be inferred that this summary defence was settled by the Treasury Solicitor as stated within it on the basis of instructions conveyed by CIO Khan. The summary defence is significant in that it asserted that the granting of a right of appeal by the decision of 8 December 2012 had rendered Radha's judicial review academic, presumably because it was contended that she now had recovered the relief that she was seeking in this judicial review.
That ground is clearly an error. This error appears to have arisen due to the nature and content of CIO Khan's instructions which had included a copy of the decision and may also have included a copy of his letter to Radha's solicitors dated 28 May 2011. There can be no rational explanation for this obvious error which is incomprehensible. The decision is not concerned with any relief claimed in this judicial review relates which is seeking relief relating to Radha's allegedly false and unlawful detention and damages for breaches of her human rights and the UKBA's misfeasance. The decision of 8 August 2011 was concerned with her leave to enter which could only be challenged pursuant to a right of appeal in the FtT and which, since the decision had been withdrawn, was no longer capable of being challenged. Furthermore, it was not correct that Radha had admitted to "assisting her sister sewing curtains." Her admission if that is what it was was recorded as being to "help her sister sew curtains at home". It is the case that this extract from the landing card was quoted in the pleading in addition to the inaccurate paraphrase quoted above although there is no quote from the further interview notes.
This decision is however relevant in proving insight into CIO Khan's thinking about Radha's claims for damages based on her allegations of arbitrary, excessive and malicious interviewing techniques. He must have known that the decision had nothing to do with the judicial review. His only motive in sending a copy of it to the Treasury Solicitor can have been to provide a smoke screen in the hope that the judicial review claim would fail so that there would be no investigation of this allegation. The pleader on receipt of these instructions was clearly entitled to assume from them, as well as from a copy of his letter dated 28 May 2011, that that the judicial review was seeking relief against the decision that had refused her entry and that that relief was now academic because Radha had received the so-called reconsidered decision that had granted her an in-country right of appeal.
Since the judicial review was not seeking relief in connection with that decision and since CIO Khan had in fact withdrawn that decision, CIO Khan appears to have issued the reconsidered decision and then forwarded it to the Treasury Solicitor in an attempt to have the judicial review withdrawn because he was concerned to avoid the scrutiny of the IOs' behaviour when interviewing Radha. There is no other explanation, and certainly none has been advanced, to explain why CIO Khan had first issued the decision and then immediately forwarded it to the draftsman of the SSHD's defence with instructions that this decision had rendered the judicial review academic.
(20) Third FtT appeal
The third FtT appeal. On 17 August 2011, Radha's solicitors initiated the third appeal in the FtT against the decision of 9 August 2011. The notice of appeal contended that the fresh decision and the actions of the SSHD were unlawful and amounted to false imprisonment and detention and to contraventions of the Race Relation Act 1976 and the ECHR and to the tort of misfeasance in public office. It also alleged that the notice was defective. Finally, and most relevantly for the purposes of this claim, it "profusely denied" that Radha had stated that she would assist Hansha in her employment as a seamstress and receive monetary reward in return (as had been stated in the notice). It sought the setting aside of the decision and a direction that Radha should be granted leave to enter the UK as a visitor.
Refusal of permission. Higginbottom J decided in a written decision set out in an order dated 31 August 2011 that permission should be refused adopted the defence document's contention that the claim had become academic. The basis of this decision was that Radha's claim had sought to challenge the decision dated 23 May 2011 (sic) but that decision had been reconsidered and reissued with a right of appeal. In relation to the claims for damages, the decision merely stated that these "appear to be unarguable". There was no consideration of Radha's case that the interview notes had been concocted insofar as they recorded admissions that she intended to help or assist her sister sew curtains for reward or to work or obtain employment to undertake such sewing.
Radha's legal representatives had no opportunity to comment on the summary grounds of defence before the permission application was considered by the judge on paper or to draw the attention of the court to the obviously erroneous nature of the defence in relying on the decision dated 8 August 2011. The only reason given by the judge for refusing permission was that that claim had become academic as a result of the right of appeal granted by that decision. That basis of decision was clearly in error. In the revised explanatory statement, CIO Khan set out that part of the reasoning of the decision in a way that suggested that the refusal decision was correct. He had been the author of the decision dated 8 August and the instructions to the Treasury Solicitor sent on the same day so that he would have known that the refusal of permission was fortuitous and based on erroneous grounds.
Radha's evidence and the service of the unsworn revised explanatory statement. Radha's evidence, in the form of a witness statement from herself, Hansha and Laxman, were served in late September 2011. Radha's statement clearly took issue with the veracity of the two sets of interview notes that both decisions relied on. She stated that she had been interviewed many times on and off and that she kept denying the accusations being made that she intended to work whilst in the UK. The interviewing IOs were not happy with her denials and she was shouted at and brow beaten when she denied them. She stated that she had explained that she would help Hansha undertake routine housework but was incapable of helping her sew curtains since she lacked the necessary skills to undertake that type of work. The witness statements from Hansha and Laxman supported and corroborated her denials that she intended to work and that her purpose and intention in visiting the UK was always had been to visit her family.
No evidence was served by the SSHD prior to the hearing and no disclosure was given. However, the hearing bundle, served on the day of the hearing, contained a revised version of the explanatory statement. This was also unsigned in the version served on the FtT and provided to Radha's representatives. The explanatory statement in its revised form contained the previous statement substantially word for word with four new paragraphs added that dealt with the decision in the second appeal, the further procedural steps in the judicial review and the service of the second decision refusing leave to enter that had occurred in August 20111 and the order refusing permission to apply for judicial review and the current third FtT appeal.
This last reference was made in these terms:
"19. Subsequently [to the fresh decision] [Radha] chose to elect her right of appeal from the second decision served on her on 9 August 2011. Having perused the latest grounds of appeal against the fresh decision, they are largely identical to the previous grounds of appeal which have already been addressed above. As such, and in view of the foregoing, it was considered that no new information had been offered that was persuasive to the decision being altered, and that in turn, that the appeal should be dismissed."
No document has been disclosed that shows or records this "perusal" or the "consideration that no new information had been offered". In fact, the third notice of appeal did offer new information. It recited the fact that CIO Khan had withdrawn the original decision and that the FtT during the second appeal hearing was informed of this by the presenting officer having taken instructions. It also reiterated that Radha profusely denied that she had made the recorded admissions in the two interview summaries. Furthermore, by the time of this suggested perusal, the three witness statements of Radha, Hansha and Laxman had been served and these contained much fuller information about Radha's key allegations and the denial of the grounds for each of the two decisions. The explanatory statement was therefore incorrect to assert that the third notice of appeal was largely identical to the previous grounds or that no new information had been offered and no explanation was given as to how it was legally possible to reconsider the previous decision and re-issue it after it had been withdrawn and the FtT had in consequence ruled that there was no subsisting appeal that is that the original decision stood and could not be re-opened or reconsidered.
The first hearing of the third FtT appeal. The best way of explaining what occurred at the first hearing of the third FtT appeal on 5 October 2011 is to quote from the decision of the tribunal given following the adjourned hearing:
"16. The appeal
came before me on 5th October 2011. The [SSHD] was not represented. The [SSHD] had filed at the Tribunal a further unsigned explanatory statement dated 25th June 2011, but including a reference to matters occurring after that date. A copy of this explanatory statement had not been served upon [Radha].
17. In those circumstances, I made a direction that the [SSHD] do by 4pm on 26th October 2011 file and serve evidence by way of statements to explain the above discrepancies in the document or documents dated 25th June 2011. It appears that here was an oversight in that the directions were not sent to the [SSHD] until 2nd November 2011.
18. However, be letter dated 18th November 2011, [the SSHD] stated as follows:-
In response to the directions please note that the Immigration Officer reviewed the case and updated the explanatory statement on 01.10.11 from paragraph 15 onwards however, he forgot to update the date on the statement and as a result, there are two statements dated 25.06.11 with different information on them
The FtT judge heard Radha's case. She attended the hearing and gave oral evidence. She verified the contents of her witness statement, was asked further questions in chief by her counsel and was then questioned at length by the immigration judge who, of course, took a careful note of all of her oral evidence. Having heard her evidence, he raised with counsel the unsatisfactory situation that had arisen. Grave allegations of dishonesty and abuse of process were being placed before the Tribunal as a result of Radha's evidence to the effect that the summaries of two of her interviews were false in referring to admissions that she was said to have made and that she was interviewed on a number of other occasions in a malicious and bullying manner in an attempt to force her to admit that she had intended to take employment sewing curtains following her arrival in the UK. The SSHD had had full and sufficient notice of this evidence and of Radha's case yet had chosen to be unrepresented at the hearing, had served no witness statements from the IOs involved and relied solely on the terms of an anonymous explanatory statement which had only just been served and which included statements about matters that had occurred after it was dated.
In the light of those difficulties, and notwithstanding the opposition of Radha's counsel, the immigration judge adjourned the hearing. He made the direction set out above which was coupled with an explanation that it was necessary to resolve issues of credibility between the parties. It was anticipated that the SSHD would not only serve a signed explanatory statement identifying the officers responsible for drafting it and its revised version but would also serve witness statements which confirmed the accuracy of the interview summaries and which responded to Radha's evidence about the number and nature of her various interviews.
Regrettably, the directions were not served promptly on the SSHD by the FtT. That was, however, immaterial since the SSHD still had sufficient time to respond to the directions and prepare and serve any witness statements prior to the resumed hearing date on 29 November 2011. In fact, nothing was served save the letter already referred to. It followed that the explanatory statement remained anonymised and that the SSHD had taken a clear and deliberate decision not to serve any evidence and to rely exclusively on the unverified contents of the interview summaries.
The second hearing of the third FtT appeal. The SSHD was again unrepresented at the resumed hearing on 29 November 2011. Since it had not served a signed copy of the revised explanatory statement that clearly identified the authors of the statement, the FtT and Radha were unaware of who had prepared it. It only became clear that CIO Khan had prepared it when a signed copy of the original statement was disclosed prior to the first hearing of this judicial review. The revised explanatory statement has never been signed but it is clear from the terms of the SSHD's letter dated 18 November 2011 that CIO Khan was responsible for drafting and putting into circulation the revised version of his original explanatory statement. As has been dealt with already, the countersignature of the IO on the original explanatory statement is unclear as to the identity of the counter-signatory but the initials appear to be similar to those identified as being IO Newton's in other documents and IO Newton is the only likely counter-signatory since it is clear that IO Reeves, for whatever reason, had never played a part in Radha's visa and detention matters from their inception on 23 May 2011.
Since there was no representation from the SSHD, the resumed hearing was a very short one. Radha's counsel made a brief closing speech and the decision was then reserved.
The determination of the third FtT appeal. It is again helpful to set out the operative parts of the decision of the FtT which was sent out to the parties on 24 January 2012:
" 48. I note that the [SSHD] was in possession of the statements filed on behalf of [Radha], which I have quoted extensively above, in advance of the hearings on 5th October 2011 and 29th November 2011. However, no statements have been filed or served in response, notwithstanding that [Radha's] statements make very clear what her case is and that her case is in direct contradiction to key matters set out in the explanatory statement.
49. The explanatory statement stated in the letter of 18th November to be dated 1st October 2011, does not in itself constitute evidence and is clearly and in any event not capable of being evidence on the [SSHD's] key witness Immigration Officer Newton, because it refers to him in the third person. The explanatory statement is not signed; its author is not named; the letter of 18th November 2011 stating that it was created on 1st October 2011 is itself only signed with an illegible signature with no typed or otherwise legible author's name; and by its very nature the explanatory statement does not purport to constitute evidence.
50. The note, stated in the explanatory statement to have been made by Immigration Officer Newton concerning the desk interview, which is Annex D to the explanatory statement, is not signed for the purpose of proceedings. This is not a statement by IO Newton to the effect that this is a note which he made at the time.
51. The notes at Annex H to the explanatory statement, which are stated to be notes of the interview which commenced at 23.00 hours on 23rd May 2011, are not deposed to by the interviewing officer IO Newton as being accurate notes of the interview.
52. Although it has been made quite clear to the [SSHD] that the credibility of the Immigration Officer is in issue, but it has not been possible for [Radha] to cross-examine the officer.
53. As noted above, the explanatory statement alleges that [Radha], at the further interview at 23.00 hours alternated between stating that she would stay for three months, or five months, or until the expiry of her entry clearance. This does not appear from the transcript relied on by the [SSHD].
54. No response is offered to [Radha's] evidence that there were more interviews than those mentioned in the explanatory statement.
55. [Radha] has adduced evidence from all the witnesses who can give relevant evidence. That evidence is consistent and I am satisfied it is of weight.
56. Because of the above matters, I prefer the account given by [Radha] to that put forward on behalf of the [SSHD]. In particular I am not satisfied that [Radha] made the admissions contained in the notes of interview relied on by the [SSHD]. She required an interpreter and cannot, as I find, be presumed to have had a full understanding of the handwritten English contained in them. I attach no weight to her having signed the notes.
57. In those circumstances, I am not satisfied on the balance of probabilities that [Radha] admitted any intention to undertake paid work during her proposed stay in the UK in contravention of the terms of her visa. I am not satisfied that there is any other evidence on which such a finding could be made.
58. For this reason, [Radha's] appeal under the Immigration Rules must succeed.
61. I am satisfied that [Radha] was subjected to a very distressing experience, particularly in view of the fact that she had on arrival in the UK just completed a long and tiring journey, and that she was held in custody for a period of some four hours before her interview began at 11 p.m. However, I am not satisfied that this, or her subsequent treatment, amounted to inhuman and degrading treatment contrary to Article 3 of the European Convention of Human Rights, the threshold in that respect being a high one.
62. My decision under the immigration rules provides the remedy [Radha] seeks in the present appeal. Any separate finding under any other article of the Human Rights convention would be otiose.
63. Whether or not [Radha] will establish a claim to damages for false imprisonment or any other remedy sounding in damages is not a matter within the terms of the present appeal.
64. I am not satisfied that the decision made by the [SSHD] on 9th August 2011 was tantamount to a cancellation of the original decision so as to give rise to a grant of six months' leave to enter. So to find would in my judgment give rise to an absurdity. It would require acceptance of the proposition that a document in the form of a notice of refusal of leave to enter, with a statement as to removal directions, could have effect as a grant of leave to enter. Despite Ms Jeygarajah's attractive arguments, I cannot accept that proposition.
65. However, the appeal under the Immigration Rules clearly succeeds on the basis set out above."
This was a devastating judgment from the SSHD's point of view. It amounted to findings that Radha had established that she had not made the admissions attributed to her, that the SSHD had been aware that IO Newton's credibility as to the accuracy of the interview notes was in issue but had not tendered him for cross-examination or served a statement from him and that it had not been shown that any weight could be attached to her having signed the handwritten record of her further interview. As a result, she was entitled to be granted leave to enter and that neither a change of purpose nor changed circumstances had been shown to have occurred.
The immigration judge's finding in paragraph 64 of the determination was understandable since it appeared to have been submitted that the decision of 9 August 2011 was tantamount to a cancellation of the original decision. In fact and reality, the original decision had already been cancelled and withdrawn albeit that Radha was not notified of that until the presenting officer informed her of that fact during the course of the hearing of the second appeal on 30 June 2011. Since there was no earlier decision still in force, the effect of the immigration judge's decision was that Radha was in the country lawfully and was entitled to leave to remain pursuant to her entry clearance since that remained in force never having been cancelled. That is what, eventually on 14 March 2012 she was granted since, on that date she was granted 6 months leave to remain expiring on 14 September 2012.
The SSHD's application for permission to appeal. Remarkably, the SSHD applied to the FtT for permission to appeal the determination of the FtT on the grounds that the immigration judge had failed to give adequate reasons for findings on material matters, namely that he had preferred Radha's account to the SSHD's account and that he was not satisfied that she had made the admissions contained in the notes of interview relied on by the SSHD. This application was given short shrift and was dismissed. The reasons for dismissal referred to the SSHD's decision not to call the interviewing officer to give evidence and be cross-examined despite the well-rehearsed conflicts of evidence and issues of credibility. The refusal decision concluded that the immigration judge had heard Radha's evidence and was manifestly justified in accepting it. The grounds of appeal were unarguable.
(21) The renewed application for permission
Renewed grounds for seeking permission to apply for judicial review dated 14 October 2011 had been drafted and served. These sought renewal on the grounds that:
"(i) There is no evidence or reliable evidence to support the decision [to refuse Radha leave to enter] and so reasons are inadequate or flawed.
(ii) There have been prior judicial findings that C is a genuine visitor, that have not been taken into account or have been taken into account and ignored.
(iii) The effect of frustrating a judicial determination by refusing leave to enter is to render [Radha's] treatment an abuse of process and undermines the legitimacy of the system.
(iv) The decision was reached unfairly and in an oppressive manner because [Radha] had undertaken a long haul journey, was interviewed and was scared. Serious allegations were made against her when [Radha] would have felt assured by her successful appeal. Her experience of then being detained was completely alien to her and she was then subject to removal directions. The whole process amounted to inhumane and degrading treatment contrary to Article 3 or was a disproportionate violation of her privacy contrary to Article 8.
(v) The treatment meted out to [Radha] by the [SSHD] violated her dignity and created an intimidating, hostile, humiliating, degrading and offensive environment for her contrary to the Race Relations Act 1976.
(vi) Given the complete absence of any rational basis for the decision in the face of a successful appeal against a visa refusal on similar grounds [that [Radha] was not a genuine visitor] the only rational inference to be drawn was that such treatment was on racial grounds."
By the time renewal was sought, it was possible to add to these grounds the terms of the second and third FtT decisions. The grounds document also made it clear that Radha denied making the statements attributed to her in the interview notes.
(22) Radha's grant of leave to enter and the return of her passport
On 11 March 2012, a very detailed statement from Radha was served on the SSHD and was relied on in seeking permission. Had it not been clear before this statement was served that Radha was alleging grossly abusive conduct in the number and manner of her interviews and was challenging the truthfulness and accuracy of the interview summaries and the veracity and integrity of CIOs Davies and Khan and IOs Reeves and Newton, her witness statement should have dispelled those doubts.
On 14 March 2012, the SSHD granted Radha leave to enter for 6 months from 14 March 202 until 14 September 2012 and returned her passport to her suitably stamped.
On 16 March 2012, Mr Clive Lewis QC granted Radha permission to apply for judicial review.
Soon afterwards, Radha flew home to her children in Gujarat having been in the UK for 10 months instead of the anticipated 4 months.
(23) Substantive JR hearing
The preparations for the substantive hearing detailed grounds of defence. The detailed grounds of defence were served on 29 October 2012. The thrust of the defence then advanced was that the challenge being mounted was to two matters: (1) the lawfulness of the decision to detain pending the IO's investigations and (2) the lawfulness of the decision to continue Radha's detention. The challenge to both types of detention failed because it had not been shown that the detaining officers did not have reasonable grounds to suspect that Radha was someone in respect of whom detention and removal directions could be imposed since she had said on two occasions that she would be helping her sister to sew curtains at home for payment. It was irrelevant what the FtT had found in January 2012, the critical question was what it was reasonable for the detaining officer to conclude in May 2011 on the basis of the information then available to him. The findings of an inquisitorial tribunal eight months later on the basis of much fuller evidence and information were irrelevant. Similarly, the Hardial Singh principles were not breached during her detention since, until CIO Khan's review of the case on 28 May 2011, it was reasonably anticipated that Radha would be removed in the near future.
The detailed grounds did not seek to address and did not plead to, Radha's claims for damages or her allegations of bad faith, abuse of power and other shortcomings that she was relying on in support of those claims and for her claims for declarations.
The preparations for the substantive hearing The SSHD's witness statements and disclosure. The SSHD finally served witness statements, albeit only from CIO Davies and IO Newton. These were dated 28 July 2012 but were not served until 5 November 2012 either with or soon after service of the detailed grounds. The relevant substance of these two statements has already been dealt with. It is noteworthy that neither statement addresses Radha's allegations relating to the interviews she was subjected to other than the two covered by the notes, to any of the issues of credibility or to the findings of the FtT in the third appeal. Disclosure was also provided on the limited basis that has already been commented upon.
The first hearing of the substantive application application for particulars and further disclosure. At the substantive hearing that was listed for 30 April 2013, Radha's solicitors served a schedule on the Treasury Solicitor in the nature of a list of requests for further information and of further disclosure. This list of requests had been prompted by what was clearly inadequate disclosure and a lack of evidence from the two IOs' statements about the critical matters of fact that still remained in issued despite the findings of the FtT. At the hearing, a long argument developed as result of the lack of the lack of full disclosure and full particularisation of the SSHD's case.
The judge directed an adjournment of the hearing and made the following order:
"The [SSHD] do have permission to file and serve further witness statements addressing the legality of [Radha's] detention and the circumstances surrounding the investigation of that as an issue at the time of her entry into the UK, addressing in particular the questions annexed to this Order and disclosing any other documents relevant to these questions. Any such further witness statement and/or documents are to be filed and served by 4pm 31st May 2013."
Permission was also given to Radha to serve responsive witness statements if so advised. There were 20 questions annexed to the order.
The further evidence served by the SSHD. The SSHD served second witness statements from CIO Davies and IO Newton dated 22 August 2013, answers to the schedule of questions and a few further documents, in particular copies of Radha's entries on the CID. The witness statements did not address the critical questions relating to Radha's interviews or the credibility of the IO or IOs interviewing her. They did reveal that the explanatory statement was in error in stating that IO Newton had conducted the preliminary check point interview that had been conducted by IO Reeves.
There remained a dispute as to the extent to which the questionnaire and request for further discovery had been complied with. In one of her skeleton arguments, Ms Jegarajah contended:
"Of the 20 questions submitted by the representatives [of Radha], [the SSHD] simultaneously declined to answer two, one was answered with the response "unable to recall" from them both, eight had corroborating statements, and nine were either answered by one [of CIO Davies or IO Newton] and not the other, answers being inconsistent."
This was answered by counsel for the SSHD, Ms Jacqueline Lean, in a document entitled "Note in Response to the Claimant's Analysis of Disclosure" dated 17 October 2013, which was provided to Radha's counsel and the court on the day before the resumed hearing. Furthermore Ms Lean, in her opening skeleton, submitted that it was open to me in deciding this judicial review to consider whether, on the material before me, I am satisfied that Radha made the statements or admissions or statements or admission to the effect of these recorded on the landing card and the interview record.
The second hearing of the substantive application. I indicated during counsel's opening that I did not propose to decide whether full disclosure and full answers to the schedule of questions had been provided by the SSHD. Any absence of obviously relevant evidence, whether in oral or documentary form, was a matter of comment and could be taken into account in assessing credibility and in making findings of fact on the balance of probabilities.
The scope of the substantive application. It should be recorded that Ms Lean in her skeleton opening on behalf of the SSHD contended that the claim for breach of the Race Relations Act and Article 3 and for misfeasance in public office were no longer pursued. That was accepted by Ms Jegarajah. However, although Ms Lean also contended that the Article 8 claim was not advanced as a substantive head of claim and the conduct relied on to support the claims based on the three causes of action no longer pursued was no longer relevant, Ms Jegarajah contended that Article 8 and the totality of the conduct referred to in the evidence was relevant and relied on. It was contended that the criticisms and allegations put forward on Radha's behalf were still relevant to the question of both credibility and damages and were therefore part of her case. In particular, their relevance went to the appropriate award of damages given that I had to have regard to the conduct of the SSHD and any behaviour which might have exacerbated her distress.
4. Summary of the Relevant Legal Principals
(1) Basis of claim
Two types of detention. The SSHD contends that it is necessary to distinguish between Radha's period of temporary detention between 18.45 on midnight 23 May 2011 and 00.22 on 24 May 2011 and her immigration detention from that point until her release on temporary admission during the morning of 28 May 2011. The SSHD contends that both periods of detention the decisions taken in relation to them were necessary, reasonable and lawful.
Temporary detention. In relation to Radha's temporary detention, the SSHD contends that an IO, whether IO Newton, IO Reeves or some other unidentified IO, was entitled to and did randomly stop Radha on entry to examine her for the purpose of establishing whether her leave to enter should be cancelled on the grounds that her purpose in arriving in the UK was different from the purpose specified in her entry clearance. He was also entitled to suspend her leave to enter until this examination was completed and, having suspended her leave to enter, was entitled to detain her pending the completion of her examination.
Radha's case in relation to her temporary detention is that although the decision to stop her and to subject her to a preliminary check point examination was lawful, the subsequent decisions to subject her to further examinations and to suspend her leave to enter had to be reasonable in the light of her answers provided in the preliminary check point interview, that her temporary detention had to be reasonably necessary to enable her further examination to be concluded and had to be exercised in accordance with the SSHD's policy that temporary detention should be a last resort and should be for as short a period as was reasonably necessary and that these decisions could not be taken for an ulterior or extraneous purpose.
She contends that in fact, the decisions to suspend her leave to enter, to temporarily detain her and to maintain her detention for the following six hours was unlawful as being taken for an ulterior purpose and as being Wednesbury unreasonable.
Immigration detention. In relation to Radha's immigration detention, the SSHD's case is that Radha was detained because she had been served with removal directions because IO Newton was reasonably satisfied that her leave to enter should be cancelled and that she should be refused leave to enter because he had reasonably concluded that the purpose of her visit to the UK was that she would be employed for monetary reward which was a different purpose to the purpose for which she had been granted entry clearance. That reasonable conclusion was based on admissions she had made in her further interview to that effect. As the direct consequence of that decision, IO Newton was entitled to conclude that Radha should be refused entry, served with removal directions and detained pending her removal in pursuance of such directions and was entitled to and did obtain the approval of a CIO to implement those decisions.
Radha's case in relation to her immigration detention is that she did not make the admissions she is alleged to have made and the notes of that interview were deliberately inaccurately written up IO Newton in a way that was intended to show that she had accepted that she was going to be employed even though he knew that she had not said that. He had, therefore, deliberately falsified the notes. Furthermore, Radha did not intend to obtain employment. It followed that IO Newton did not believe that Radha was going to be employed or that she had admitted that she would be employed. His cancellation of her leave to enter was unlawful because it had no statutory authority and had been made for an unlawful ulterior purpose. Furthermore, he had no grounds and no reasonable basis for cancelling her leave to enter, for serving her with removal directions, for believing that her lawful removal was imminent or for detaining her.
Because IO Newton knew or ought to have known that there were no grounds to cancel her leave to enter, that decision and the consequent removal directions and detention decisions were unlawful and void from the outset since they were taken without jurisdiction and in abuse of power.
Even if he had had a reasonable belief that Radha had made the admissions attributed to her in her further interview and had not denied that she had an intention to be employed, Radha contends that IO Newton's decisions to cancel, to remove and to detain were all unreasonable, albeit taken within jurisdiction, since there was no reasonable basis for him to conclude that the words that he had recorded meant that she was intending to take employment. In such circumstances, these three decisions were unlawful on those grounds.
(2) Relevant decisions
These claims involve a consideration of a series of decisions taken by decision-makers employed by or with the authority of the SSHD. These are:
(1) Decisions directly related to Radha's detention:
(i) The five inter-related decisions taken together on 23 May 2011 to detain her temporarily for further questioning.
(ii) The four inter-related decisions taken together on 24 May 2011 to cancel her leave to enter, refuse her leave to enter, remove her to Mumbai forthwith and detained until her removal.
(iii) The 24-hour detention review taken on 24 May 2011.
(iv) The decision taken on 25 May 2011refusing to withdraw the detention decision.
(v) The decision taken on 28 May 2011 to grant Radha temporary admission and to withdraw the decision to cancel her leave to enter.
(2) Decisions taken with the apparent purpose of covering up the unlawful purposes of decisions directly related to Radha's detention:
(i) The decision to sign and then to issue unsigned the explanatory statement dated 25 June 2011.
(ii) The decision to give instructions for the SSHD's summary grounds of defence that were materially inaccurate
(iii) The decision taken on and dated 8 August 2011.
(iv) The decision that the SSHD would not participate in the third appeal
(v) The decision to issue unsigned the revised explanatory statement on 1 October 2011.
(vi) The decision to contest the judicial review only on the basis that the decision-makers taking the decisions on 23 and 24 May 2011 had reasonable grounds for believing that Radha had admitted in her preliminary and further interviews that she intended to take employment sewing curtains whilst in the UK
(3) Decision to grant leave to enter:
(i) The decision to grant Radha leave to enter dated 14 March 2012.
(3) False imprisonment, unlawful detention and protected rights under Articles 5, 8 and 14 of the ECHR.
False imprisonment. The tort of false imprisonment is committed by the unlawful imposition of constraint on another's freedom of movement from a particular place. The commission of this tort is established by proving both the fact of imprisonment and the absence of lawful authority to justify the imprisonment. The tort is only committed whilst the defendant is wholly deprived of her liberty. It is not a defence to the commission of the tort that the servant or agent who imposed and maintained the defendant's detention had a reasonable belief that he had the necessary authority to detain the defendant or to keep the claimant in detention. It is sufficient that the detention was unlawful for the defendant to be liable for false imprisonment.
Unlawful detention. The IA provides the SSHD with the power to detain a passenger or someone unlawfully present in the UK for specific purposes and the power may only be used for those purposes. The relevant purposes in this case that would have permitted Radha's lawful administrative detention, whether temporary detention or in immigration detention were that it was necessary to detain her pending further investigations or further examination of in order to determine the purpose of her visit or possible change of circumstances since she had been granted leave to enter or pending a decision on the grant, refusal or cancellation of leave and the giving of removal directions and removal from the UK.
The limits of this power to detain were spelt out in R v Governor of Durham Prison, ex p Hardial Singh. These limits were that the power might only be used for the purposes spelt out above and might not be used for any other purpose; the detained person or deportee might only be detained for a period that was reasonable in all the circumstances; if before the expiry of the reasonable period it became apparent that the SSHD would not be able to reach a decision as to whether to refuse entry and removal within that reasonable period, the SSHD should not seek to exercise the power of detention and should act with reasonable diligence and expedition to effect removal. Furthermore, as a matter of policy, the SSHD should only exercise the power to detain administratively as a last resort which, in this case would be where there was a risk that Radha might abscond or that her removal was reasonably imminent and detention was necessary to facilitate that removal
Article 5. Article 5(1) of the ECHR provides that no one shall be deprived of his liberty save, as relevant to this case, in order to secure the fulfilment of any obligation prescribed by law and against whom action is being taken with a view to deportation. Detention must not be arbitrary and must be in accordance with the procedure prescribed by law.
Policy. The IDIs make it clear that there is a presumption in favour of temporary admission or release and that, wherever possible, alternatives to detention should be used. However, detention would usually be appropriate in order to effect removal; initially to establish a person's true identity or the basis of their claim; or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. Furthermore, interviewing IOs had to comply with the policy set out in the BFOM concerned with Immigration Secondary Interviews.
Article 8. Article 8(1) of the ECHR provides that everyone has the right to respect for his private and family life, his home and his correspondence. Article 8(2) provides that there shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of, amongst other matters, economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
The right to private life includes the entitlement to have and to develop relationships with others, to have a settled and secure place in the community, not to be subjected to an act or measure which gives rise to severely adverse interference with that person's physical and moral integrity or to their privacy and not to exclude that person from a country where her close relatives reside. The right can also extend to conditions of detention where those conditions intrude disproportionately on a person's physical and moral integrity or their privacy. The right to family life includes the right to enjoy, participate in, maintain and develop family relationships with close family members. This is particularly so in relationships involving children or, to a lesser extent, parents. Where an expulsion or detention decision taking effect in the UK impinges upon the claimant's ability to enjoy her relationship with her husband or children in India, the state-sponsored or public authority act or omission in the UK that impinges on that ability is a breach of article 8 if it is sufficiently serious and disproportionate.
In determining whether the state has breached an individual's right to enjoy private and family life, it is necessary to undertake a proportionality assessment in five successive stages. These are:
(1) The proposed detention or other act or omission must interfere with the claimant's right to respect for her private or family life;
(2) If so, the interference must have consequences of such gravity as potentially to engage the operation of article 8;
(3) If so, the interference must be in accordance with the law;
(4) If so, the interference must be necessary in a democratic society in one or more of the defined interests; and
(5) If so, the interference must be proportionate to the public end sought to be achieved.
Article 14. Article 14 provides that the rights and freedoms in the ECHR shall be secured without discrimination on any ground such as sex, race, colour, language, national or social origin or other status. Radha's claim as originally pleaded relied on Radha's alleged treatment as amounting to discrimination on grounds of sex, race, colour or national or social origins and on her having been targeted in relation to the detention decisions and interviewing techniques on these grounds. The claim on those grounds was withdrawn at the hearing, no doubt on account of the exemption from the Equality legislation provided for IO interviews. On the facts of this case, the allegations on which a discrimination case might have been based amount equally to claims under articles 5 and 8. However, although not pleaded specifically, the facts put forward in relation to the nature of Radha's interviews and the concoction of interview notes gives rise to a possible claim for discrimination on the grounds of status, being the status of someone who is detained or imprisoned. The basis of that claim would be that because there is no comparable legislation for those detained under the IA to the PACE provisions applicable to those being questioned and imprisoned in the Criminal Justice System, particularly with regard to the tape recording of interviews and the conditions under which a person is questioned, Radha's rights to be protected from inhuman and degrading questioning and investigations, to be detained lawfully and to respect for a private life could not be secured due to discriminatory treatment compared to those imprisoned under the PACE regime.
(4) Employment, work and assistance
The IRs do not define employment and do not make it clear how to differentiate between employment and work or other assistance even though neither work nor assistance necessarily involves employment. It follows that the word "employment" must be given a common-sense interpretation. Since the word connotes a contractual relationship involving an employer and an employee, the relationship that constitutes the changed purpose in a case such as this one must have a rudimentary quasi-employment basis even if there is no payment involved. Thus, there would need to be a hierarchical relationship between two people where defined work or activities were carried out for the employer by the employee pursuant to a minimal framework of rules and with a duty of care, however minimal, owed by employer to employee.
Regrettably, although the IR refers to employment as the prohibited relationship, Radha's visa, in common with visa conditions generally, refers to "work" as the prohibited activity. The IOs who are responsible for enforcing this prohibition are clearly aware of the difference, albeit overlapping similarity, between employment and work. CIO Khan refers explicitly to the differences in his internal note explaining why the SSHD had difficulty maintaining its refusal decision in Radha's case. Moreover, the subtle shift from "help" as the concept referred to in the interview notes to "work" and then to "employment" in the internal documents and the relevant decisions speaks volumes about the IOs' wish to transform what at best was a doubtful change of purpose into a clear-cut one. Further indications of the difference between work and employment can be gleaned from a consideration of those work relationships that are not also employment relationships. These include voluntary work, domestic work, homework, family arrangements and work when used to describe chores (as when a person states "I've got work to do").
Clearly, helping or assisting someone is even less like employment. Sometimes, particularly when described as a "helper", a person is employed when helping or assisting someone else. However, in the context in which Radha is said to have used that word, in stating that she would be helping her sister, it seems unlikely that such help as was being referred to, was to be provided in an employment or quasi-employment relationship.
(5) Different purpose and change of circumstances
The two concepts in play in this case, being different purpose and change of circumstances, also overlap but are not necessarily identical. Helpful guidance is to be found from this passage in the judgment of Pitchford LJ in Boahen:
the then current Home Office guidance (on 8 June 2009 when the first-instance decision of Collins J was handed down) (IDI, chapter 9, section 3A, paragraph 3), since replaced,
envisaged that, while the visa holder's intention may remain to enter for the authorised purpose, the factual basis upon which the visa purpose was founded has been undermined. Accordingly, leave to enter to take up employment may have been undermined by withdrawal of the offer of employment; [other examples of change were given]
. Consideration of cancellation on the ground of change of circumstances required an assessment from the immigration officer of all the circumstances including, for example, whether there remained a legitimate purpose for the visa holder's visits which the visa holder could and should be entrusted for the remainder of the period of validity. The purpose of the power of cancellation is to ensure proper immigration control, and the use of a visa by a visa national for a visit whose purpose is unauthorised is, on the face of it, a serious matter."
On the facts of this case, there appeared to be no difference between the facts on which a different purpose had been detected from those on which a change of circumstances had been detected. There were therefore no obvious changes from the circumstances in which Radha's visa had been applied for and ultimately provided by the decision of the FtT in the first FtT appeal and those which were regarded as constituting a change of circumstances in the second decision dated 8 August 2011 save that the first decision carried no right of appeal (save as one piggy-backed onto Radha's human rights appeal) whereas the second carried that right. That, however, is not a change of circumstances but a consequence of a decision that there had been a change of circumstances.
In short, a change of circumstances in this case, in order to have occurred would have had to have occurred as a result of a change occurring after the award of the visa which turned the family visit intended by the grant of a family visa into a visit involving a change from a family visit to an employment relationship involving the sewing of curtains. No such change was identified in the second decision dated 8 August 2011.
(6) Scope of the claim
Radha's claim is in two distinct albeit overlapping parts. The SSHD contends that her claim based on her unlawful detention and false imprisonment and on articles 5 and 8 arising from that detention is confined to what occurred to her between 23 and 28 May 2011 whilst she was actually being detained. Clearly, her claim for detention is based on that 5-day period. However, she is claiming general, aggravated and exemplary damages and has pleaded and put in issue the entire period from 23 May 2011 until her discharge from temporary admission when granted leave to enter on 14 March 2012. She is also claiming damages for breaches of her articles 5 and 8 rights for the entire period or, by way of a gloss of that claim, for the consequences of her detention arising from the SSHD's unlawful conduct in covering up the unlawful nature of that detention and in harassing her in two subsequent FtT appeals and this judicial review that were concerned with it by pursing those legal processes unlawfully, maliciously, dishonestly and in abuse of process.
Since Radha contends that her detention was unlawful from the outset because it was not for the purpose of ensuring her removal but was for other unlawful purposes and because the procedure that was adopted was unlawful in that she was interviewed in a grossly unlawful manner and that the SSHD then covered this unlawful behaviour for many months by defending the three separate pieces of litigation in an unlawful manner, her claim is clearly based on the entirety of the conduct associated with or related to her detention including the SSHD's conduct in each of these subsequent pieces of litigation.
(7) Burden and onus of proof
In this case, Radha challenges both the lawfulness of the decisions to temporarily detain her and to impose on her immigration detention and the application of the relevant policies to detain her. I will deal with the two periods of detention separately. It is clear that on general principles, the onus of establishing the lawfulness of Radha's detention lies with the SSHD. In Lumba, Lord Dyson stated:
"53. I turn to the position at common law. It is not in dispute that the right to liberty is of fundamental importance and that the courts should strictly and narrowly construe general statutory powers whose exercise restricts fundamental common law rights and/or constitutes the commission of a tort.
All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so."
Temporary detention. There is a three-fold test that must be applied:
(1) Was Radha directly and intentionally detained by the SSHD? Radha must establish that she was. There was no dispute about this issue.
(2) Was Radha detained in excess of jurisdiction? For immigration detention, that question became: Was Radha detained arbitrarily or for an ulterior motive or was she detained lawfully in the sense that she was detained pending her removal for having entered with a different purpose? It was for the SSHD to establish that she was detained for the stated purpose. Radha contended that it was irrational for the SSHD to consider that she could and should be detained for the purposes of being examined under schedule 2 to the IA and that the real purpose of her detention was to put pressure on her to admit that she intended to take employment with Hansha sewing curtains so that she could and should be returned to India without the right of appeal.
(3) Was it reasonably necessary to detain her for that purpose? The test is one of Wednesbury reasonableness, that is had the SSHD shown that the decision-maker had taken account of all matters he should have done and/or vice versa or was the decision to detain one that no reasonable IO properly advised would have taken. The SSHD contended that the test of Wednesbury reasonableness was satisfied, Radha contended that each of the three limbs of that test were clearly not satisfied since the decision-maker knew or ought to have known that there was no evidence that she had said that she intended to seek employment.
Immigration detention. A similar three-fold test must be applied:
(1) Was Radha directly and intentionally detained by the SSHD? Radha must establish that she was. There was no dispute about this issue.
(2) Was Radha detained in excess of jurisdiction? For temporary detention, that question became: Was Radha detained arbitrarily or for an ulterior motive or was she detained lawfully in the sense that she was detained pending the completion of her examination? That was the power to detain relied on by the SSHD to uphold her lawful detention. It was for the SSHD to establish that she was detained for the stated purpose. The SSHD contended that that was the purpose of her temporary detention, Radha contended that it was irrational for the SSHD to consider that she could and should be detained for the purposes of being removed since she had not admitted that she intended to take employment with Hansha sewing curtains and the decision-maker had only caused her to be detained after he had deliberately lied by saying that she had admitted this when he knew that she had not.
(3) Was it reasonably necessary to detain her for that purpose? The test is one of Wednesbury reasonableness, that is had the SSHD shown that the decision-maker had taken account of all matters he should have done and/or vice versa or was the decision to detain one that no reasonable IO properly advised would have taken? The SSHD contended that the test of Wednesbury reasonableness was satisfied, Radha contended that each of the three limbs of the Wednesbury test was clearly not satisfied. SSHD contended that it was not necessary for it to establish that Radha did not intend to take employment sewing curtains since the decision-maker reasonably understood that she had stated in her interviews that that was her purpose. However, Radha contended that she had never stated that, that the decision-maker knew that she had never stated that and that he also knew or ought to have known that she had no intention to take such employment.
(8) Issue estoppel and abuse of process
On behalf of Radha, it was contended that it was no longer open to the SSHD to challenge her case that she had been unlawfully detained because the FtT in its third appeal decision had found that she had not stated that she intended to seek employment sewing curtains. The basis of this contention was that that finding estopped the SSHD from relitigating that issue or that it was an abuse of process for her to do so.
This submission is not correct for two reasons. Firstly, these two doctrines do not strictly speaking apply because the first piece of litigation was a hearing in a tribunal and the second is a hearing in the High Court. Secondly, the issues are not exactly the same. In the FtT, the relevant issue was whether Radha had stated that she intended to take employment. The FtT decided that she did not. In the judicial review, Radha is stating that the decision-makers concocted the evidence that she had stated this by deliberately making mendacious notes that that is what she had said on two occasions and that their motive for taking that course of action was to try and force her by bullying her to make that admission but she refused to do so.
It is therefore necessary for this further issue to be litigated. However, it was incumbent on the SSHD to explain why the FtT's finding was wrong since, on the basis of that finding, the SSHD was not entitled to detain Radha or to cancel her leave to enter. No such explanation was attempted. Thus, even without analysing the evidence in detail, Radha starts the trial knowing that she has already established that she did not say what was attributed to her. Her task in this trial was to establish that the decision-maker or makers had an ulterior motive in trying to mislead the court into thinking that Radha had stated that she intended to take employment sewing curtains even though the same decision-makers knew that she had not said that. In short, Radha seeks to establish that the decision-makers were lying and did so for an ulterior purpose.
(9) Temporary admission
A person seeking entry to the UK who the SSHD is unable or unwilling to grant leave to enter but who may not remain in immigration detention because their removal is not reasonably possible in the near future may be granted temporary admission pending their removal. A person may be granted temporary admission pending removal if they are liable to be removed. If a person is admitted on temporary admission, they have not been given leave to enter and are deemed not yet to have entered the UK. If there comes a point when there is no realistic prospect of removal, or they become entitled to the grant of leave to enter, they should be granted leave to enter to replace their temporary admission. Since the SSHD had cancelled the withdrawal of Radha's leave to enter thereby reinstating her leave to enter and since the SSHD did not within 24 hours of that reinstatement, withdraw her leave to enter again, Radha was deemed to have been granted leave to enter at that point and was no longer liable to be removed. She should therefore not have been discharged from immigration detention with temporary admission but should instead have been discharged with leave to enter or, if she had been granted temporary admission before the cancellation decision on 28 May 2011, should have had it replaced by leave to enter on 30 May 2011 at the latest.
(10) Explanatory statement
The purpose and evidential nature of an explanatory statement has already been explained. The original explanatory statement was prepared and signed by CIO Khan and, it would appear from the contents of the document and the illegible signature on the original document, by IO Newton. This signed copy was not provided to the FtT or to Radha's legal representatives but it was served unsigned with the intention of being used as an explanatory statement and it was open to the FtT to make use of it for that purpose even though it was unsigned. In fact, the FtT did not need to consider its contents since it decided that the appeal should be struck out since the SSHD had previously cancelled all decisions including the decisions under appeal. The explanatory statement was reserved following a direction from the FtT hearing the third appeal that it should be legibly signed by the CIO and IO who had prepared it. The reserved explanatory statement had been amended by adding further details but it remained unsigned. An official from the UKBA subsequently wrote to Radha's solicitors to inform them that "the Immigration Officer reviewed the case and updated the explanatory statement". It is to be presumed that that is a reference to CIO Khan and IO Newton. However, neither was identified and the amended explanatory statement remained unsigned. It was, however, considered at the subsequent hearing at which the SSHD were not represented and its contents were not accepted since the FtT allowed Radha's appeal.
The explanatory statement and its revised version are both highly relevant documents since they provide considerable insight into CIO Khan and IO Newton's intentions, motives and knowledge with regard to Radha's detention and their actions with regard to that detention and its associated decisions. These documents also provide insight into the lengths that those IOs appear to have been prepared to go in order to misrepresent the basis on which Radha had had her leave to enter cancelled and had been detained.
A defendant to a judicial review where permission for a substantive hearing has been granted is subject to the requirement to provide standard disclosure unless a contrary direction is given by the court. In this context, standard disclosure means the mandatory disclosure by the SSHD of the documents on which it relies, which adversely affect its or Radha's respective cases or which supports Radha's case.
It was perfectly clear from the various documents and pleadings served by Radha during the 30-month period between the filing of her claim form and the substantive hearing and from the decisions of the FtT in both the second and third appeals that Radha was contending that she had not made the admissions attributed to her in the two interviews that had been noted, that those notes had been deliberately entered erroneously so as to suggest that she had made those admissions, that she had been bullied in a number of unrecorded interviews in an unsuccessful attempt to force her to make these admissions and that the SSHD had attempted to mislead Radha, Radha's legal representatives, the FtT in both the second and third appeals and the Administrative Court in the permission stages and the substantive hearing of this judicial review. Thus, the SSHD should have disclosed all documents relating to the interviews, her time in temporary detention and each of the decisions that are relevant to this hearing. Notwithstanding the gravity of the allegations being made against the IOs concerned, significant documents were never disclosed.
Thus, by way of example, no disclosure was ever given of the timesheets, logs or other internal records of the four IOs and one WIO named as being involved in Radha's temporary detention or of the names and timesheets of the interpreters involved in each interview, of the names of the CIOs and IOs responsible for preparing the explanatory statement and its revised version or of the time sheets and records showing all other IOs or members of staff who were involved in Radha's detention or in security arrangements or in looking after her during the six hours she was in temporary detention. The absence of such disclosure in the circumstances of this case is itself of evidential value since these documents were clearly highly relevant, had clearly existed, were likely still to be in existence and whose non-disclosure was unlikely to have been accidental or by way of innocent oversight.
(12) Lawfulness of CIO Khan's decision and actions on 28 May 2011
CIO Khan issued a decision dated 28 May 2011 withdrawing the decision dated 24 May 2011 and the decision dated 25 May 2011 confirming the decision dated 24 May 2011. The effect of CIO Khan's decision was to reinstate Radha's entry clearance. That decision was lawful and, indeed the correct decision to have taken given his doubts expressed in his internal note dated 28 May 2011 that what Radha was noted to have said during her interviews did not amount to an admission that she intended to seek employment.
However, CIO Khan acted unlawfully in not issuing a formal decision and in not notifying Radha or her legal representative that he had withdrawn the earlier decision. The decision was not an immigration decision but Radha should have been granted leave to enter as soon as the withdrawal decision was taken unless a fresh cancellation decision was to have been issued and was issued within 24 hours of the withdrawal decision. Thus, Radha was entitled to be served with a notice granting her leave to enter and the failure to serve that notice was, in effect, a refusal of leave to enter which was an immigration decision.
CIO Khan also acted unlawfully in serving Radha with temporary admission or in not withdrawing temporary admission on 30 May 2011 by the latest since Radha was, on and after 30 May 2011 entitled to leave to enter, was not liable to be removed and it was unlawful to serve her with, or to fail to withdraw, temporary admission.
(13) Effect of the second FtT appeal decision dated 5 July 2011
The FtT decided that the SSHD's decisions dated 24 and 25 May 2011 had been withdrawn. It directed the SSHD to regularise Radha's status by either serving her with leave to enter forthwith or by notifying her forthwith that the withdrawal decision of 28 May 2011 had itself been withdrawn or that the decision of 24 May 2011 had been reinstated. If the first occurred, the appeal would be treated as being withdrawn, if the latter occurred the appeal would be reinstated to enable Radha to appeal the decision of 24 May 2011. Instead, the SSHD did neither. This was an unlawful inaction since it left Radha with temporary admission in a situation in which she was not liable to be removed and was entitled to be issued with leave to remain.
(13) Lawfulness of decision dated 8 August 2011
The decision dated 8 August 2011 was unlawful since it purported to refuse Radha leave to remain on the grounds of change of circumstances since she had been granted leave to enter. However, those changed circumstances had previously been the subject of a refusal of leave to enter on the grounds of entry for a different purpose than that for which entry clearance had been granted, that refusal decision had been withdrawn and Radha was then granted deemed leave to enter. Therefore, in order lawfully to cancel her deemed leave to enter, there had to be reliance on a change of circumstances occurring after 28 May 2011 when she had been deemed to have been granted leave to enter whereas the change of circumstances relied on had occurred, if they had occurred at all, prior to 28 May 2011 and had, in any event been withdrawn as circumstances to be relied upon.
Furthermore, the decision was not issued because Radha's circumstances had changed but in order to attempt to avoid an adverse decision in the judicial review that Radha was pursing and in which summary grounds of defence had just been served.
Finally, the decision-maker was, or should have been, aware that there was no basis for the decision since he knew that Radha's circumstances had not changed in the way contended for in the decision.
5. Findings of Fact
Introduction. I will firstly summarise my relevant conclusions about the evidence that I have set out above. I will then make findings of fact. I will then apply those findings to Radha's contentions and reach my conclusions as to liability.
Radha's grant of entry clearance. The evidence shows that Radha lived in respectable but modest circumstances in Gujarat in a close family unit comprising her husband, two children and her parents-in-law. She was also close to her own family members, particularly her parents and her sister Hansha and brother Laxman who had emigrated from Gujarat to the UK in March 2003. She had seen little of them in the intervening years and had, with the encouragement of Hansha, decided to pay what was probably her first trip outside India to visit them on an extended family visit. She could not afford the trip and in any case did not wish to leave her children for any length of time although they would be well looked after by her parents-in-law who lived close by. Her UK family lived together in respectable and modest circumstances and their wish to see and have a visit from Radha was such that Hansha sponsored her visit by paying for all her travel and living expenses for what was intended to be a visit of approximately 3 months. Radha left all the arrangements for the appeal against the ECO's refusal of her visa application to Laxman, payment to Hansha and travel arrangements to her father-in-law. She had lived as a housewife since her marriage and had no previous experience of sewing anything elaborate, particularly curtains. In short, she planned to make the family visit of a lifetime.
The ECO refused her application for a visitor's visa on the erroneously narrow basis that she had failed to prove that she had sufficient resources to pay for her visit. On appeal, the FtT judge found that finding was correct but that the ECO had totally failed to consider the alternative basis for a grant of a visitor's visa, namely that her sponsor could and would fully provide for her. The immigration judge also found that she was trustworthy and would leave the UK and return to Gujarat when or before her visa expired. These findings were readily available to the IOs who examined her on arrival in the UK, were considered by them but were not given any weight or significance. Indeed, they were inaccurately summarised in an unduly adverse manner by the IOs as is reflected in the summary of them in the explanatory statement. Moreover, insufficient weight was placed on them and on the telephone interview summary of the interview conducted of Hansha by a member of the ECO's team prior to the initial refusal. The evidence submitted by Radha and Hansha's sponsor's statement as supplemented by the telephone interview clearly pointed to an applicant who appeared reliable and fully entitled to a visitor's visa.
Preliminary check point interview. The preliminary check point interview was conducted by IO Newton using Hindi interpretation provided by an Hindi-speaking WIO who happened to be on duty nearby. IO Newton was entitled to pick on Radha randomly and it is likely that that is what he did, albeit that the only basis for him to have picked on her may well have been because she was an adult female travelling on her own from Mumbai. Although was permitted to pick her out randomly in order to interview her, he was required to interview her in a fair and reasonable way and in a way that enabled her fully to understand the questions being asked and to answer them properly and in a way that fairly expressed her meaning and intentions. Regrettably, the preliminary interview was neither fairly conducted nor reliably noted down on the landing card. The interpreter was not an official Home Office interpreter, the language in which the interview was conducted was Hindi which she barely spoke, no attempt appears to have been made to ensure that she and the WIO providing interpretative facilities understood each other, she had no opportunity to check what had been noted and, in any event, the noted answers did not suggest, if carefully considered, that she intended to undertake employment sewing curtains and, in any event, the notes were probably written up long after the interview had been completed. In short, there were no grounds for IO Newton to conclude that Radha had admitted that she intended to take employment or that it was necessary to conduct further interviews and inquiries in temporary detention.
What seems to have happened is that IO Newton had an initial hunch or prejudiced assumption that Radha's purpose in coming to the UK was to obtain unlawful employment and to remain unlawfully in the UK after her visa had expired and that her answers as translated to him which appeared to deny any intention to work or obtain employment or to overstay were lies. There is no evidence that he had any factual or evidential basis for this hunch or of there being any other reason for him to have decided to further interview Radha in temporary detention. IO Newton also appears to have decided that he would be unlikely to justify cancelling her leave to enter or refusing her leave to enter even if he undertook a further interview. The evidence suggests that he was determined to cause her removal forthwith and that this could only be achieved if she was temporarily detained in order to give him an opportunity to cajole or bully her into admitting a change of purpose so that she could then be instantly removed without further difficulty or trouble.
It appears that, in making this assumption, IO Newton both before deciding to detain her temporarily and subsequently whilst investigating her case whilst she was in temporary detention, placed no weight on the fact that she had obtained her visitor's visa following an appeal to the FtT. This was unreasonable and irrational given the findings of the FtT determination that was readily available to him on the UKBA information retrieval system. He was aware of this determination and consulted it as can be seen from what is stated in the landing card notes and the explanatory statement. The immigration judge's findings were to the effect that she was a genuine visitor whose proposed family visit was sponsored by her sister and who could be relied upon to leave the UK before the end of her lawful visit in order to return to her two young children who would remain in Gujarat whilst she was in the UK.
IO Newton therefore instructed her to be temporarily detained. There is no evidence that he filled our or caused other IOs to fill out the relevant forms giving effect to this decision at that stage or that Radha was informed of why she was being detained. The only obvious inference of what occurred was that he subsequently invented the involvement of IO Reeves and CIO Norris, illegibly initialled the relevant forms after Radha's further interview without identifying who had initialled them and added the names of these two IOs to the notes on the landing card to make it appear that other IOs had been involved in the decision temporarily to detain her. There is no other reasonable conclusion given the complete absence of a statement from IO Reeves and CIO Norris and of any internal documents that established that those two officers were involved in Radha's case or were on duty attending to her case between 18.30 and 22.30.
In addition to detaining her temporarily, IO Newton impounded Radha's passport. This was unlawfully retained by the SSHD until 14 March 2012 despite the decision of 28 May 2011 withdrawing the decisions taken on 24 May 2011which she was not notified of and which provided her with leave to enter and despite the FtT's direction dated 5 July 2011 that the SSHD should regularise her status forthwith. The SSHD even continued to impound her passport for a period after the third appeal decision of the FtT which confirmed unequivocally that Radha had never admitted to a change of purpose and that her original leave to enter remained in place. Radha was unable to leave the UK until her passport was finally restored to her 14 March 2012 following which she flew home to India as soon as she was able to arrange for her return.
A further consequence of the irrational and unreasonable conclusion that Radha had entered the UK unlawfully and with an unlawful intention to seek paid employment was that IO Newton decided to exercise his power temporarily to detain her. There were a number of reasons why Radha's temporary detention was unlawful. Firstly, the power to detain was being exercised for an unlawful purpose, namely in order to attempt to bully Radha into turning her denials that she intended to take employment into an admission that that was her real purpose in seeking entry despite the apparent reasonableness of her denials. Secondly, there was no evidence that she would either abscond if asked to remain for a further interview or that she would not co-operate with any further inquiries that IO Newton intended. Thirdly, there was no evidence that she would breach any of the terms of her visa save for IO Newton's unreasonable predetermined and unshakable belief that Radha was lying. Fourthly, the final decision as to whether or not to cancel her leave to enter could be taken very quickly given that Radha's brother was outside and available for immediate questioning as to her purpose, the computerised records of the FtT determination relating to her visa were readily accessible, a Home Office interpreter could be arranged within minutes for a telephone further examination which would inevitably be short since the range of possible questions was very limited.
In short, Radha's detention was unlawful since it had been imposed for an ulterior purpose that was not authorised, it was based on evidence that had been unfairly and unlawfully obtained and which had been concocted and it was unreasonable, irrational and unnecessary. It was therefore ultra vires, unlawful, irrational, unreasonable, based on extraneous considerations and in breach of the SSHD's policies concerning administrative detention.
Interviews and investigations between 19.45 and 22.30. The period between 18.45 and 22.30 remains a complete blank so far as the SSHD is concerned. No document has been disclosed which relates to this period. Temporary detention over a period of six hours would inevitably accumulate much relevant documentation and an explanation of why the detention lasted for such a lengthy period. That period might be explained by a lack of resources to deal with the passengers waiting to be further interviewed but, if so, that difficulty, the available Border Force manpower and interviewing facilities and the number of those awaiting a further interview would all have been documented. Furthermore, it would have been inevitable that relevant Border Force officials within Terminal 4 maintained a detention log, timesheets and personal logs of all officials concerned with Radha's detention whether as interrogators, investigators, security or administrative staff or staff attending to those detained in interview rooms in Terminal 4 for sustenance, medical reasons or general welfare. Border Force would also have maintained standing instructions, guidance and policies concerning the conditions under which passengers should be temporarily detained. Finally, IOs investigating or interviewing Radha would have kept personal notes of their inquiries or interviews and there would have been records made that related to the booking and invoicing of interpreters providing telephone interpretation that included their names and the timing of the bookings and telephone interviews. No such documentation has ever been disclosed and it seems likely that it never existed or has since been disposed of. Whatever the explanation for this non-disclosure is, it suggests that there has been a deliberate policy of withholding relevant documentation that would be supportive of Radha's case that she was repeatedly bullied in this period in order to force her into admitting that she intended to obtain employment, a case that the SSHD was well aware of almost from soon after her initial detention.
Likewise, there is no statement from IO Reeves, IO Norris, WIO Menon, CIO Khan or any interpreter or official who interpreted for or attended on Radha in this lengthy period of temporary detention and no SSHD evidence of what occurred or by way of challenge to Radha's evidence. This silence is all the more remarkable given that IO Newton has provided two witness statements neither of which attempts to deal with this lengthy period if only by way of hearsay evidence of what had occurred before he took over with and an explanation as to why the other relevant witnesses had not made a statement and what briefing he was given and by whom on taking over Radha's case.
This silence is Nelsonian in its extent, particularly as there is no mention of this period or of Radha's allegations in its pleadings or submissions. Its entire case at the hearing and in its submissions is based on a denial that Radha was unlawfully detained given her admissions recorded in the preliminary and further interview notes. The case ignores Radha's denials of those admissions, the FtT's findings which negate the SSHD's apparent denial of Radha's evidence on this topic, the claims for aggravated and exemplary damages for the unlawful detention and all claims for damages under articles 5, 8 and 14 of the ECHR.
I have concluded that Radha's evidence is credible and reliable. I am supported in this conclusion by the finding to the same effect of the immigration judge in the third FtT appeal having read her witness statement and listened to and observed her during a lengthy questioning at the hearing. The SSHD did not seek to challenge this finding or the credibility of her evidence and made no attempt to obtain the immigration judge's notes of evidence from the immigration judge who had conducted her third immigration appeal.
I am also fortified in reaching this conclusion by the conduct of IO Newton and CIO Khan in their various and repeated efforts to hide from two FtT appeals and this judicial review the salient facts relating to the unlawful, unfair and irrational behaviour of IO Newton in undertaking the preliminary and further interviews and Radha's treatment during her six hours of temporary detention.
It follows that I find that Radha was subjected to the bullying, hectoring, intimidator and unlawful treatment that she recounted in her witness statements. It is not strictly necessary to make a finding as to which IO was responsible but, in this case, the evidence points inexorably to IO Newton as the perpetrator.
The further interview. Radha's credible evidence and IO Newton's evasive, self-serving and unreliable evidence relating to the further interview, the inadequate evidence of the interpretation facilities that were provided and the evidence of what was said that is to be found in IO Newton's note-taking and of the decision-making process following its conclusion have already been set out at length. It can be seen that the interview record, as recorded, discloses significant and serious breaches of the BFOM, a significant failure to take account of Hansha's evidence provided in the visa application process, significant failures in noting and reporting Laxman's evidence and in taking the entirety of that evidence into account and the inadequacies of the explanatory statement prepared as it was with IO Newton's input all support Radha's account and demolish IO Newton's exculpatory account of the further interview and what Radha said.
In reaching this conclusion, I take account of the repeated and unlawful interviews that Radha had been subjected to prior to her further interview in what can only be described as a softening-up exercise to ensure that a further interview took place with her providing what from IO Newton's point of view could be described as satisfactory admissions. The further interview was, therefore, unlawful from the start but it is clear that Radha maintained her denials of any intention to seek paid employment or to stay unlawfully in the UK once her visitor's visa had expired and that her answers that are relied on as showing that she had made appropriate admissions were concocted so that the unlawful nature of the further interview and the absence of any evidence obtained from Radha to support the refusal of her leave to enter was compounded and exacerbated by the interview process that she was subjected to.
It is also clear from my analysis of the evidence of CIO Davies and IO Newton, of the terms of the decisions that were taken, of the defects in the IS 82 form and of the explanatory statement that the decision-making was flawed and that the decisions were based upon what were contended to be Radha's admissions which, as the decision-makers knew, she had not made, on interviews that had been unlawfully administered and on notes of what Radha had allegedly said that had been concocted by the principal decision-maker.
It follows not only was Radha credible in stating that she had never made any relevant admission during this interview, as the immigration judge found in the third FtT appeal, but that the decision that she had made those admissions was based on unlawfully and concocted evidence obtained by the principal decision-maker. Thus, the relevant decisions to cancel her leave to enter, to refuse her leave to enter, to detain her in immigration detention, to continue to impound her passport and to remove her as soon as possible from the UK were all ultra vires, unlawful, irrational, unreasonable, based on extraneous considerations and in breach of the SSHD's policies concerning administrative detention.
SSHD's subsequent decisions and actions. The relevant facts, decisions and actions founding Radha's claims for damages flowing from her unlawful detention and from breaches of the ECHRs may be summarised by reference to the following matters taken in chronological order.
The 24-hours review. As has been noted, this review was premature. It should have been undertaken 24 hours after Radha's detention which occurred at about 00.25 on 24 May 2011in Colnbrook IDC by a different CIO unconnected with Terminal 4. It would appear that IO Newton and CIO Davies decided to implement a premature 24-hour review at the same time as taking the decision to detain Radha to preclude an independent 24-hour review in Colnbrook IDC and ensure that Radha would be removed before any further review was required. It is noteworthy that a further review was required and, at that review on 28 May 2011, CIO Khan concluded that Radha's detention and the related decisions were unsustainable.
The refusal decision of 25 May 2011. The decision to refuse Radha's solicitors' request to review the decisions taken on 24 May 2011 is not recorded in any disclosed document including the explanatory statement. There is no evidence that the earlier decisions were reviewed at all and certainly were not reviewed objectively and dispassionately. I conclude that, despite the terms of Duty Officer Ghudial's minute sheet, no such review took place. This purported review of the detailed PAP letter was, on the face of it, an attempt to mislead Radha and her solicitors in the hope that her complaints would disappear and she could be removed without further difficulty.
CIO Khan's withdrawal decision dated 28 May 2011. CIO Khan's withdrawal decision was correct. It is recorded in the CID that he had withdrawn the refusal decision albeit that he would reconsider the decision with the view of replacing it with a fresh decision based on change of circumstances. That reconsideration decision had to be taken within 24-hours of the withdrawal decision otherwise Radha would be deemed to have been granted 6 months leave to enter. No reconsideration decision was taken and the FtT in the second appeal decision decided that the withdrawal had taken place so that there was nothing to appeal.
There are however, three unlawful and highly unsatisfactory aspects to CIO Khan's decision. The first is that he purported to reconsider the decisions "in an effort to avoid the matter going to the TSols and the ensuing public costs this will entail (even in the preliminary stages)". This is an obvious reference to Radha's judicial review claim that had by then been issued. However, it was no business of CIO Khan to tailor his decision to withdraw to the unrelated judicial review claim. If the refusal decision was unsustainable, CIO Khan's duty was to withdraw it and the detention decision. Since he gave no reason, internally or in correspondence with Radha's solicitors, that it was arguable that there had been a change of circumstances even though there had been no change of purpose thereby justifying the substitution of the original decision with a change of circumstances decision, the fresh decision would have been issued for an ulterior purpose and would have been unlawful.
Secondly, the judicial review was concerned with a claim for damages for historic unlawful detention and historic breaches of the ECHR so that any decision relating to the refusal of leave to enter would not have any direct bearing on her claims save, possibly, to improve them.
Thirdly, Radha already had a full right of appeal to the FtT in view of her human rights appeal and she had already intimated that this would be pursued. Thus, CIO Khan, who was or should have been aware of that forthcoming appeal, was offering or providing nothing by his suggestion that he would consider providing her with a right of appeal.
The unlawful nature of CIO Khan's decision to withdraw the earlier decisions but not to properly inform Radha of that decision or serve her with a copy of it and then to proceed on the basis that the earlier decisions had not been withdrawn is highlighted by two matters. Firstly, CIO Khan released Radha on temporary admission despite her having leave to enter and by not withdrawing that temporary admission with a grant of leave to enter immediately after the 24-hour period within which to reissue a decision had passed.
Secondly the explanatory statement which CIO Khan prepared and signed with IO Newton erroneously suggested that CIO Khan did not withdraw the decisions but instead had offered to do so in a letter to Radha's solicitors who had never responded. This course of action was justified by the assertion that the failure to withdraw the original decision was the result of Radha's solicitors' decision to lodge a notice of appeal on 1 April 2011 against the decisions to the FtT. In consequence, so it was alleged, CIO Khan undertook a further and detailed review of IO Newton's original decisions that culminated in his deciding that the original decisions were correct. During that review, it was stated that he considered Radha's ECHR grounds of appeal because insufficient detail was available to conclude whether the claims under articles 3 and 14 were well-founded although he was able to conclude that the claim under article 8 was unsustainable in view of the proportionate decision that had been made.
This reasoning is no more than an unjustified re-writing of history and it showed that CIO Khan was attempting to gloss over and hide the consequences of the original decisions and his own withdrawal decision. In particular, he spelt out the details of a further review which never took place, at least there is no other evidence of it taking place, he maintained that he had not withdrawn the earlier decisions when he in fact had done so and he concluded that the earlier decisions were correct even though he had a few days earlier concluded that they were unsustainable.
The only conclusion that can be drawn is that CIO Khan was attempting to back-track from his decision that IO Newton's decisions were unsustainable presumably at the request and with the assistance of his co-signatory IO Newton and was also attempting to mislead the forthcoming FtT appeal into concluding that the earlier decisions were correct, thereby avoiding a detailed consideration of all the unlawful aspects of those earlier decisions.
The explanatory statement. This has already been dealt with at length. Its shortcomings, its many misleading passages and the obvious intention to keep its authorship confidential are clear evidence that CIO Khan and IO Newton were intent on keeping the details of the many unlawful features of the decisions away from the FtT and the judicial review or at least covering up their involvement in those decisions and the subsequent decision that they were unsustainable.
The second FtT appeal. The attempt to mislead the second FtT appeal by the contents of the apparently anonymous explanatory statement was compounded by the decision to serve no evidence and to instruct a presenting officer to present the SSHD's response to the appeal on the basis that the original decisions were correct and were based on Radha's noted admissions in her preliminary and further interviews. This attempt failed only because of the astute intervention of Radha's counsel at the hearing who had discerned that there appeared to be no surviving decisions despite the failure to notify Radha of that withdrawal decision. This was coupled with the integrity of the presenting officer and the officer who examined Radha's file who combined to provide the immigration judge with the correct information that the relevant decisions had been withdrawn and had not been reinstated or replaced.
The FtT decision giving effect to this conclusive withdrawal was served on the SSHD and it directed the SSHD either forthwith to regularise Radha's immigration status by granting her leave to enter for six months or to issue a fresh decision reinstating the original decisions or replacing them with a new decision which would have had to have been based on changed circumstances since the original decisions had been promulgated. Furthermore, the temporary admission should have been withdrawn immediately unless a fresh decision had been issued immediately. CIO Khan and the SSHD did none of these things, evidently as a result of a conscious decision that it would ignore the FtT decision since the only way it could comply with it would have been to issue Radha with leave to enter.
Acknowledgement of service. The summary grounds of defence were drafted and served on 8 August 2011 on the express instructions of CIO Khan. His instructions were clearly misleading since they consisted of the terms of the explanatory statement coupled with a fresh decision also dated 8 August 2011. No explanation was given for the fresh decision and it was clearly prompted by the realisation that the SSHD had to provide a summary defence to Radha's judicial review claim. The gist of this defence was to ignore the withdrawal decision dated 28 May 2011, to ignore the second FtT appeal decision, to appear to make a lawful fresh decision which granted Radha a right of appeal without relying on any fresh evidence and to assert that the judicial review had, in consequence become academic. Unsurprisingly, the summary defence drafted by the Treasury Solicitors in a great hurry due to the final order imposed by the Administrative Court, adopted this erroneous line of instructions with the consequence that Radha's application for permission to appeal was dismissed on the papers by the Administrative Court.
The explanation for the nature and content of CIO Khan's instructions to the Treasury Solicitor can only be that he was again seeking to cover up the unlawful nature of the decisions taken by IO Newton.
Fresh decision. The fresh decision should never have been issued and was, as the third FtT appeal demonstrated, unlawful in any event. It should never have been issued since its ulterior purpose was to be used as a means of misleading the Administrative Court, it had no prospects of success since it was based on the same facts as the original decisions yet it could only be justified if fresh facts had come to light since the decision of 28 May 2011 which showed that there was a change of circumstances since the deemed leave to enter had been granted on 28 May 2011 and it was issued by CIO Khan with full knowledge that the only evidence that Radha intended to seek paid employment was concocted and unlawful.
Third FtT appeal. CIO Khan appears to have orchestrated a series of steps intended to mislead the FtT in relation to the appeal against the decision of 8 August 2011, steps taken with the active participation of IO Newton. In summary, the two IOs decided that they and the SSHD would not participate in the FtT appeal, would reserve the anonymous explanatory statement with all its misleading statements intact and would instruct that no presenting officer should attend the hearing. When the FtT immigration judge adjourned the hearing with a direction that the SSHD should serve an up-to-date explanatory statement with the names of the CIO and IO who had prepared and were authenticating its contents should be clearly and legibly stated on a copy which also contained their signatures, on receipt of those directions after the directions had been served on the SSHD after an initial delay caused by an initial failure by the FtT to serve the directions CIO Khan and IO Newton re-issued the original explanatory statement with a further misleading passage to cover events since the first statement had been issued. Despite the directions of the FtT, both CIO Khan and IO Newton chose to remain anonymous and an unsigned re-issued explanatory statement was then issued. The decision not to participate in the hearing and not to instruct a presenting officer to attend was again taken and the FtT proceeded to a conclusion which accepted Radha's case and found, in effect, that the preliminary and further interviews misleadingly suggested that Radha had made adverse admissions during these two interviews when she was to be believed in denying that she ever made those admissions. Remarkably, the SSHD, again presumably on CIO Khan's instructions, applied to the FtT for permission to appeal on the grounds that the decision was against the weight of the evidence.
Further steps in the judicial review and the return of Radha's passport. Radha's renewed oral application for permission to apply for judicial review was heard soon after her detailed evidence in support of that application had been served on 11 March 2012. Permission was granted on 14 March 2012 and on the same day the SSHD withdrew Radha's temporary admission and granted her leave to enter for 6 months expiring 6 months later on 14 September 2012. Then, and only then, did the SSHD relent and return Radha's passport on 16 March 2012. The passport had been retained because the SSHD consistently maintained until permission to apply for judicial review had been granted that Radha was liable to be removed, was subject to temporary permission and was not entitled to the return of her passport.
The SSHD, evidently on CIO Khan's instructions, maintained this trilogy of unlawfulness, namely the assertion that she remained liable to be removed, she was still subject to temporary admission and she was not entitled to the return of her passport because of the misguided attempts to obtain decisions from the FtT and the Administrative Court that would justify the original decisions and cover up their unlawful nature. This pretence was finally abandoned when Radha obtained permission for a substantive hearing of her judicial review claim.
Core findings of fact. In the light of the evidence and my conclusions about that evidence, I have concluded that each of Radha's factual allegations is correct. My findings are as follows:
6. Core findings.
(1) Radha never had any intention to help her sister to sew curtains or to work or take paid employment sewing curtains.
(2) She consistently denied any such intention throughout the lengthy series of interviews that she was subjected to on her arrival at Heathrow Terminal 4 from Mumbai on an intended family visit pursuant to a visitor's visa that she had obtained prior to leaving her home state of Gujarat.
(3) She never made any of the core admissions attributed to her in the noted summaries of what she was alleged to have said during her preliminary and further interviews that took place soon after her arrival. These core admissions were to the effect that she intended to help her sister sew curtains and would work and take paid employment sewing curtains during her visit and would not leave the UK once her visitor's visa had expired.
(4) The noting officer was IO Newton and he had deliberately worded the core admissions that were attributed to her in the way he did although he knew that he was falsely noting down what she had said and that she had consistently denied in all her interviews that she had any intention to work or seek employment or fail to leave the UK before the expiry of her visa.
(5) She was subjected to at least five further informal interviews which were neither documented nor subsequently referred to in the SSHD's evidence.
(6) In her two formal and the various informal interviews, unsuccessful attempts were made by IO Newton to bully, frighten and cajole her into making these core admissions which she repeatedly declined to do.
(7) She was initially temporarily detained at about 18.45 on 23 May 2011 for further interviews and investigations although there was no apparent basis for that detention or for further interviews and investigations. This detention was therefore unlawful.
(8) Having been repeatedly questioned in a hostile and aggressive manner for over 5 hours whilst in temporary detention with the intention of forcing her to make the core admissions and despite her not having wavered in her denials, her leave to enter was cancelled, she was refused leave to enter, she was detained in immigration detention pending her removal from the UK, her passport was confiscated and retained by the United Kingdom Border Agency ("UKBA"). These decisions were taken soon after midnight in the early hours of 24 May 2011 and each one was unlawful. These decisions were confirmed in a 24-hour review decision taken soon after the decisions had been taken and in a decision declining to withdraw them taken on 25 May 2011. These decisions were unlawful.
(9) Each decision was based on the decision that her purpose in coming to the UK had changed from coming for a family visit to coming in order to obtain employment sewing curtains and with no intention of leaving when her visitor's visa expired. That decision was itself based on the core admissions that had been attributed to her in the summaries of the preliminary and further interviews despite her repeated denial of them. These core admissions were false and IO Newton who had written them up in the notes of these interviews and who had also made the relevant decisions had concocted them and fabricated them in the notes knowing that they were false.
(10) The relevant decisions to cancel her leave to enter, to refuse her leave to enter, to detained her pending her removal and to remove her were withdrawn in a decision taken on 28 May 2011 because it was realised by CIO Khan to whom they had been referred that they could not be maintained.
(11) However, she was not informed of or served with a copy of this withdrawal decision and was instead unlawfully released on temporary admission to await her judicial review claim to review her detention decisions and her appeal to the First-tier Tribunal against the original decision to refuse her leave to enter. This release on temporary release was unlawful since she should have been served with a copy of the withdrawal decision dated 28 May 2011 and immediately have been released with leave to enter.
(12) Following her release, CIO Khan and IO Newton subsequently sought to cover up the unlawful nature of the decisions to cancel her leave to enter, refuse her leave to enter and detain her in the evidence submitted in the form of an explanatory statement for use in three separate hearings in the two First-tier Tribunal appeals that she had to pursue and in the summary and detailed defences served for and the evidence adduced in witness statements in this judicial review that she also had to pursue.
(13) These actions and omissions were assisted by CIO Davies in serving two witness statements in the judicial review proceedings that he knew, or ought to have known, were false and untrue in material respects.
(14) All these actions, decisions and omissions were intended by the CIOs and the IO or IOs who were responsible for them intended to procure unlawfully decisions from the FtT and fro this judicial review that would have confirmed the unlawful decisions that they had previously taken and to cover up the unlawful features of those decisions.
(15) Throughout her stay in the UK from 23 May 2011 until about 16 March 2012, the SSHD unlawfully impounded and retained her passport. Furthermore, the unlawful actions of the CIO and IO in relation to the FtT appeals and this judicial review necessitated her involvement in those three separate sets of legal proceedings despite the SSHD having no sustainable defence to her claims. This unlawful action involved both IOs in supporting the SSHD's defence in both the FtT and the judicial review with knowingly false evidence and instructions.
(16) In consequence, her visit was greatly disturbed and was also prolonged against her wishes by a period of 5 months from October 2011 until March 2012. She was unable to leave earlier both because her passport was unlawfully retained by the UKBA throughout that period and because of the need to remain in the UK pending the resolution of her FtT appeals and her obtaining permission to bring this judicial review.
(17) The total effect of these actions and omissions was to greatly interfere with her family visit, cause her to be falsely and unlawfully detained, humiliate, bully and harass her, cause her considerable stress and anxiety over a 10-month period, further harass her by using unlawful means to involve her in three different sets of legal proceedings, greatly to interfere with her family life with her parents and siblings in the UK and with her husband and two children in Gujarat and prevent her returning to her family against her will for a period of 5 months after the conclusion of the planned period of her family visit.
Decisions. The various decisions dated 23 May 2011 and 24 May 2011, 25 May 2011, 28 May 2011 and 8 August 2011 were unlawful as being ultra vires, taken for an ulterior purpose, unreasonable, irrational and taken without taking all relevant factors into account and wrongly taking irrelevant or non-existent factors into account.
Unlawful detention. The decisions to detain Radha in both temporary and immigration detention were unlawful as being ultra vires, taken for an ulterior purpose, unreasonable, irrational, in breach of the SSHD's policy concerning administrative detention and without taking all relevant factors into account.
ECHR breaches. The following breaches of the ECHR occurred:
(1) Article 5. The unlawful nature of the detention between 23 and 29 May 2011 amounted to a significant breach of article 5 since Radha had leave to enter the UK, entered lawfully and was then detained in decisions which were ultra vires, unlawful and taken for an ulterior purpose. This caused Radha considerable distress, stress and anxiety and amounted to a flagrant breach of her right only to be detained lawfully and for reasonable cause.
(2) Article 8. Radha's right to respect for her private life was interfered with by her unlawful detention and by the series of unlawful acts between 29 May 2011 and 16 March 2012 which caused her to be harassed by two appeals to the FtT and by a judicial review, to be subject to temporary admission which restricted her movements and to the retention of her passport which prevented her from returning home. Her right to respect for her family life was significantly interfered with. Her visit to and her association with her parents, her two siblings, her sister-in-law and her infant nephew were significantly interfered with as was their collective and individual respect of family life with her. Moreover, her enforced absence from her husband and two children between 3 October 2011 and 16 March 2012 also constituted a severe interference with her family life and that of her 3 immediate family members.
(3) Article 14. The absence of any facilities to tape record or digitally record her further interview constituted an additional breach of article 14 given that those interviewed in custody as part of the criminal process are subject to PACE procedures including the right to have all interviews under caution recorded.
7. Damages and declarations
Introduction. It is first important to determine what it is that Radha is claiming for and is entitled to claim for. Her claim is based on the remarkable history of her case. She was detained in particularly extreme and unlawful circumstances in that the detaining officer from the outset was clearly determined to detain and remove her without the slightest evidence available to him to support that course of action. Throughout, he was determined to create grounds for removal and detention where none existed and he resorted to a series of unlawful stratagems to achieve his ends. He arranged for her to be interviewed in her preliminary interview in a language she was barely familiar with, she was detained without explanation and with no decision being served upon her, she was a single, obviously vulnerable and easily frightened woman in her early 30s who had rarely travelled, was tired and anxious and was known to have a brother waiting for her to whom she could turn for assistance had that been allowed.
She was bullied and harassed without explanation for several hours in an attempt to get her to admit that she was intending to act in an unlawful manner although she had no such intentions and made her lack of intentions clear repeatedly and to the obvious anger of her interrogator. She appears to have been kept in the company of a male interrogator and was not provided with a female IO who could have ensured that her treatment was kept within reasonable bounds, who could have brought a realistic and common-sense understanding of the likelihood of her sewing curtains in a private home for paid employment with no experience and limited available resources in a cramped private house. She was terrified throughout, she was provided with no access to outside assistance, she was formally interviewed in significant breach of the relevant guidance, admissions were invented and then attributed to her and the relevant documents were created after she her leave had been terminated and she had been detained.
She continued to be aggressively bullied throughout her time in firstly Colnbrook IDC and then Yarl's Wood IDC, she was transferred without warning from one to the other, kept on permanent fright and without any sufficient means to contact her family save for an inadequate number of telephone calls. The obvious and overriding intention of the IOs who dealt with her case was to remove her as soon as possible from the UK having first bullied her into admitting that she had unlawful intentions, who concocted evidence against her and who left her at the end of her ordeal in a state from which she would take a very long time to recover from. Her reputation must have suffered, at least with the UKBA since she would undoubtedly wish to return to visit her aged parents, siblings and other close family members with her children but who might no longer obtain appropriate visitor's visas and who would find it very difficult to fly to the UK for fear of receiving similar treatment all over again.
In addition, she suffered considerable emotional stress and financial loss as a result of her wish to obtain appropriate redress for her false imprisonment and unlawful detention allied to the other decisions which were intimately bound up with the decision to detain her. For 10 months she faced a series of deliberate ploys which were unjustified and unlawful attempts to prevent her succeeding in showing that the refusal of entry and the consequent detention had been unlawful, that her treatment in detention had been scandalously and maliciously unlawful and that she had been the victim of a serious miscarriage of justice based on concocted evidence, untruthful statements, unlawful decisions and actions calculated to mislead the FtT and the Administrative Court into finding against her and keeping the unlawful behaviour that she had suffered under wraps.
As a final series of indignities, her family visit of a lifetime was ruined, she and her elderly parents and siblings went through agonies for days whilst she was detained and for many weeks whilst she was attempting to obtain satisfaction from the FtT and the Administrative Court and whilst she was kept unlawfully on temporary admission with her passport impounded and her reputation in tatters. She was unable to return to her two young children and she and they must have suffered particular anguish given the circumstances in which she could not return, the uncertain length of her forced separation and the continuing uncertainty as to whether or not she would vindicate herself and her family from what she rightly regarded as a monstrous series of miscarriages of justice.
Meanwhile, the IOs concerned appeared and still appear to be indifferent to the suffering they had caused over a 10-month period, oblivious to the enormity of the abuse of their powers that Radha and her family had experienced and blind to the miscarriage of justice that they were perpetrating. The misinformation that they put into circulation, the misleading nature of their participation in the various proceedings concerned and the clear and continuing intention of avoiding the consequences of their unlawful and dishonest conduct appeared to be both criminal, culpable and a serious abuse of power.
The SSHD's response. In seeking to downplay the SSHD's liability in damages, it was contended that the principle defence to the claim for damages was that Radha had not particularise her ECHR claims and had not identified how her claims arose from the alleged unlawful detention. Neither of those claims are justified given the lengthy and repeated identification of her case through the PAP letter, the particulars of claim, the two notices of appeal in the second and third FtT appeals, the renewed application notice for permission to initiate judicial review proceedings, the witness statements served in the third FtT appeal and the judicial review, the detailed request for particulars served at a late stage of the judicial review and the skeleton arguments prepared by her counsel in the renewed application for permission and the opening of the substantive hearing in the judicial review. Given this wealth of material, it was either wilful blindness or deliberate obfuscation for the SSHD to contend that it was unaware of the nature and extent of Radha's claim.
Radha's entitlement to claim for the post-detention unlawful conduct. The SSHD also contend that the claim is only concerned with a claim for unlawful detention between 24 and 28 May 2011, that there is no claim for damages under the HRA for even that claim, that any event, decision, act or omission occurring after Radha's release from detention including the actual release decision is irrelevant to her present claims, that even that claim is confined to an assessment of general damages which should result in a very modest recovery for a period of only 4 days detention and that the basis of Radha's case has not been set out or particularised.
Each of these contentions is unsustainable. It is true that the claim as pleaded in the claim form is limited to a claim based on her unlawful detention. That claim was initiated whilst she was still in detention at great speed and it had only been made possible because Laxman had arranged with great perspicacity and determination for Radha to be represented by an immigration solicitor and experienced immigration counsel within hours of her detention. From the outset, her claim for damages included claims based on the bullying and unlawful conduct of the IO who is now known to have been IO Newton. However, her claim developed as the unlawful events and decisions unfolded. The first focus of her attention was the continuing threat to her of what she understood was the continuing decisions cancelling her leave to enter and refusing her leave to enter. Unless those decisions were set aside, she would have no claim for damages for unlawful detention and she would be redetained and removed without further ado. She also had to pursue her judicial review claim through its stages involving her application and renewed application for permission to bring the claim at a substantive hearing. Her case developed through these various stages and involved her in not only presenting her claims for her treatment unto the point of her release from detention but also in relation to the SSHD's attempts to cover up its unlawful actions as part of its response to her appeals and claim.
It is clear therefore that her claims are now based on all unlawful conduct that the SSHD through CIO Khan and IO Newton subjected Radha to. That conduct is directly related to her unlawful detention because that was based on the other unlawful decisions that she was subjected to and to the unlawful conduct that occurred after her release from detention. Her case is fully explained if all the relevant documents and statements that have been produced on her behalf are considered. The SSHD has declined to engage with her case at any stage until the substantive hearing and then only to a limited extent. Any failure of it to appreciate and address the full extent of Radha's case arose from its refusal to engage with it or to address the remarkable, extensive and inexcusable series of unlawful acts and omissions and their attempted cover up.
The heads of damage. Radha's claims may be considered in this way:
(1) General damages for unlawful detention for the period 23 29 May 2011;
(2) Aggravated damages for unlawful detention in the same period to take account of the very serious series of unlawful acts, the harassment she experienced, the stress and long-term potential consequences of her experience to her health particularly the psychological consequences, potential for PTSD and recurrent flashbacks and nightmares and the damage to her reputation;
(3) General and/or aggravated damages and/or damages under the HRA for the irrecoverable costs of her representation in two successive FtT appeals and other legal costs not recoverable in the judicial review proceedings;
(4) General and/or aggravated damages and/or damages under the HRA for the additional travel costs arising from the need to pay for her return trip for a second time;
(5) General and/or aggravated damages and/or damages under the HRA for the additional costs of her remaining in the UK for 5 months longer than planned;
(6) HRA damages for breaches of article 8 for the considerable interference with her private and family life including the interruption of her family life with her husband and 2 children, her parents, her two siblings and her sister-in-law and infant nephew or niece;
(7) HRA damages for breaches of articles 5 and 14;
(8) Exemplary damages.
The inter-relationship between damages for unlawful detention and for breach of section 6 of the HRA. There is an obvious overlap between heads 2 5 since these damages may be characterised under both heads of general and aggravated damages and damages under the HRA; between heads 1 5 and head 6 since the loss and damage occurring after Radha's release from detention can be said to arise under the claims for unlawful detention and/or the claims for breaches of the HRA and also between heads 1 5 and heads 6 7 since much of the recoverability that is sought is recoverable under both sets of heads of damage. It will be necessary to ensure that there is no double recovery and that the overall sum to be recovered is not, in the round excessive in size or by reference to what might be regarded as comparable personal injury damages.
General and aggravated damages for false imprisonment. I was referred to a number of cases involving damages for false imprisonment and unlawful detention. These provide some but only limited assistance as comparables. This is a case where the actual period in detention was relatively short but the nature of the breaches and unlawful acts giving rise to that detention, the absence of any excuse or justification for the callous and deliberate behaviour or of any remorse or even acknowledgement of that behaviour, the continuing attempts to cover up knowledge of that behaviour, the blamelessness of Radha as the victim of that unlawfulness and the potentially very severe consequences to her and her family all point to an increased award compared to an award based on a daily rate for 4 days of detention.
Taking all that into account, I propose to award £20,000 in general damages and a further £30,000 in aggravated damages.
Special damages for false imprisonment. There is no evidence of the sums spent on legal assistance but this involved two separate appeals to the FtT in circumstances where those costs were irrecoverable despite the complete vindication of Radha that arose from both appeal decisions. Moreover, there were clearly additional costs in the very early stages of representation that were reasonably incurred but not directly attributable to either the FtT appeals or the judicial review.
I propose to award £10,000 for the costs that Radha incurred in the third FtT appeal, £7,500 for the second FtT appeal and £2,500 for the irrecoverable additional costs involved in the early stages of instruction.
Damages under section 6 of the Human Rights Act. Radha's family visit was clearly a one-off visit to pay her respects and to be reunited for a short period with her elderly parents, her two siblings, her sister-in-law and her infant and not previously met nephew or niece. It is clear from the circumstances of her family life and that of her UK-based and Gujarat-based families that this was a one-off not to be repeated family visit. It was no doubt contemplated that she would, if possible, bring her two children to meet their UK-based family in the foreseeable future if circumstances and finances permitted this. Nonetheless, the interference in the family life of a close-knit family that the 10 months of unlawful behaviour gave rise to must have been very considerable.
Of equal seriousness was the interruption of Radha's family life with her husband and, in particular, her two children. She was prevented from returning to them for 5 additional months and the anguish that they, and she, must have experienced throughout that period must have been considerable. Less is known of the effect on her family life with her husband who may well have remained working in the Seychelles in that period. However, there must have been some stress and anxiety on both sides.
Radha's private life was also badly disregarded by her treatment at the hands of IO Newton, by the harassment caused by CIO Khan and by the concocted evidence and disregard of the procedures concerned with the decision-making process and the issuing and serving of decisions.
I particularly regard her treatment at the hands of IO Newton and of his unlawful concoction of evidence as amounting to breaches of article 5 arising from the particularly severe nature of the unlawful detention gives Radha an entitlement to additional damages under article 5.
It is most regrettable that further interviews are not tape recorded or recorded in some other manner and that there are not published guidelines as to how preliminary and further interviews should be conducted. Had there been, it is likely that none of the unlawful conduct experienced by Radha would have occurred. This is particularly unfortunate when compared to the PACE requirements governing police interviews. The failure to provide for the recording of further interviews amounts to unlawful discrimination between detained passengers in immigration detention and detained prisoners and suspects detained in police stations and it is sufficiently serious in this case that Radha is entitled to additional damages under article 14.
I assess her overall entitlement to damages under articles 5, 8 and 14 to be £40,000. This is made up as £20,000 for interference with her family life in relation to her 6 family members in the UK and 3 family members in India and £10,000 for interference with her private life and £7,000 for interference with her article 5 rights and £3,000 for interference with her article 14 right.
I consider that these sums awarded under the HRA totalling £40,000 are additional to, and not overlapping, the sums that I have awarded under other heads.
Exemplary damages. Exemplary damages are recoverable where the abuse of power by public officials is particularly oppressive and arbitrary. IO Newton's behaviour and CIO Khan's cynical attempts to cover up that behaviour fall into that category. I award £15,000 exemplary damages.
Conclusion recoverable damages. My conclusion is that Radha should be awarded £110,000 in damages and £15,000 in exemplary damages.
Declaration. Radha is entitled to declarations that: (1) she was unlawfully detained and falsely imprisoned between 23 and 29 May 2011 (2) that the decisions to detain her were ultra vires, unlawful, taken for an ulterior motive and unreasonable; and (3) that she was entitled to and was awarded substantial damages for unlawful detention, false imprisonment and under section 6 of the HRA for several and various breaches of her ECHRs in relation to her detention and the unlawful consequences of that detention.
Costs of judicial review. Radha is, subject to argument, also entitled to her costs of the judicial review on an indemnity basis.
8. Overall conclusion
This case is a precautionary tale since it has arisen because an IO and a CIO considered that it was appropriate to manufacture evidence to secure what they considered to be the rightful outcome of an unlawful entry even though there was no basis for that belief and no evidence to support the proposed outcome of instantaneous removal of someone who had arrived in the UK with leave to enter. This outrageous behaviour was assisted by the unusual exemption granted for particular types of immigration control from the provisions of the Race Relations Act then in force that have been reproduced in the Equality Act since enacted and from a continuing failure to provide recording facilities for schedule 2 interviews. It was also assisted by lax implementation of measures designed to control unlawful behaviour by IOs and CIOs in implementing schedule 2 investigations and interviews.
It is to be deeply regretted that this behaviour was meted out to a wholly blameless family visitor who was an adult, female, vulnerable lone traveller whose sole purpose in entering the UK was to pay an extended family visit to her parents and other close members of her family who were permanently resident in the UK and three of whom were British nationals who she had not previously visited in the UK. For her, it was intended to be a family visit of a lifetime that turned into a nightmare of unimagined proportions. That nightmare was only rescued and brought to an end by her courage and determination and that of her family members with the assistance of the professional expertise of her counsel and legal representative. It is to be hoped that Radha and her family can now put these events behind them and resume a happy and contented family life albeit split between two continents.
HH Judge Anthony Thornton QC
30 July 2014
Note 1  EWCA Civ 585, CA. The judgment was delivered by Pitchford LJ. [Back]
Note 2 Paragraphs 2A(1) (9) of schedule 2 of the IA. [Back]
Note 3 ibid., paragraphs 2 and 4(1). [Back]
Note 4 Article 3(2) of the Order. [Back]
Note 5 ibid., paragraphs 2A(2A) and 2A(2) respectively. [Back]
Note 6 Now the Equality Act 2010. [Back]
Note 7 Published internally on 10.12 2007. Surprisingly, this manual was not published on the UKBA website as the IDI were and it was not disclosed until it was drawn to the attention of the file holder at the Treasury Solicitor just before the hearing who immediately arranged for its disclosure. See paragraph 106 below. [Back]
Note 8 Under paragraph 2(8) of schedule 2 to the IA. [Back]
Note 9 Paragraph 17 of the reissued explanatory statement see paragraph 181 below. [Back]
Note 10 ibid., paragraph 2(9). [Back]
Note 11 Section 89(1)(a) and (b) of the Nationality, Immigration and Asylum Act 2002. [Back]
Note 12 ibid., section 89(4)(a). [Back]
Note 13 Under paragraph 321(A) of the IRs. The visa nationals entry clearance could also be cancelled under paragraph 320. [Back]
Note 14 Section 92(3) of the IA. [Back]
Note 15 Paragraphs 4(1) and 5(1)(a) of the Immigration (Notices) Regulations 2003. [Back]
Note 16 Boahen, ibid., per Pitchford LJ at paragraph 38. [Back]
Note 17 See paragraph 108 below for an extract from this sponsors statement. [Back]
Note 18 A decision taken under paragraph 2A(2) of schedule 2 of the IA. [Back]
Note 19 See paragraph 15 above. [Back]
Note 20 See paragraphs 166 - 168 below for an explanation of what an explanatory statement is, how it was produced in this case and what its evidential significance was. [Back]
Note 21 It is of course possible that the notes were written up by WIO Menon but there was no evidence that she did so. Moreover, she did not provide a witness statement and it is most unlikely that she would have been able to write up the notes whilst interpreting a short standing interview that was being conducted by the interviewing IO. [Back]
Note 22 See paragraph 51 below. [Back]
Note 23 See paragraph 148 below. [Back]
Note 24 A decision taken under paragraph 2A(7) of schedule 2 of the IA and recorded on a standard IS 81 form. [Back]
Note 25 A decision taken under paragraph 2A(2) and 2A of the IA and recorded on a standard IS 81 form. [Back]
Note 26 A decision taken under paragraph 16(1A) of Schedule 2 of IA and recorded on a standard IS 91R form. [Back]
Note 27 A decision taken under section 141 of the Immigration and Asylum Act 1999 and paragraph 16 of schedule 2 of IA and recorded on a standard IS 86 form. [Back]
Note 28 A decision taken under paragraph 4(2A) of schedule 2 of the IA and recorded on a standard IS 81 form. [Back]
Note 29 Italics added in the explanatory statement. [Back]
Note 30 This time is probably inaccurate, it was probably at least one hour earlier, see paragraph 74 above. [Back]
Note 31 The interview notes were written down by IO Newton on a standard UKBA Record of Interview form and acknowledged by Radha signing each page of the notes see paragraph 103 and FN 32 below. [Back]
Note 32 The interview notes were written down by IO Newton on a standard UKBA Record of Interview form and acknowledged by Radha signing each page of the notes. [Back]
Note 33 See paragraph 136(2) paragraphs 3 4 below for the significance of this erroneous reference to Radha having a curtailed right of appeal. [Back]
Note 34 The underlined questions and the italicised answers do not appear to have been accurately set out. Additionally, the italicised answers should have been more fully explored in further questions. [Back]
Note 35 The cancellation was being made under paragraph 2A(2A) of schedule 2 to the IA, the exclusion of a right of appeal despite the consequent refusal of leave to enter being an immigration decision (by virtue of section 82(1)(a) of the NIAA) arose by virtue of section 89(1) of the NIAA. [Back]
Note 36 See paragraphs 212 - 214 below [Back]
Note 37 A decision taken under paragraph 2A(2A) and (8) of the IA. This was erroneously recorded on a standard IS82A form instead of the standard IS 82D form appropriate where the cancellation decision carried no right of appeal. [Back]
Note 38 A decision taken under section 89(1) of the NIAA as amended by sections 5 6 of the Immigration, Asylum and Nationality Act 2006 and recorded on the same standard IS82A form. [Back]
Note 39 A decision taken under paragraph 8 of schedule 2 of the IA and recorded on the same standard IS82A form. [Back]
Note 40 A decision taken under paragraph 16(2) of schedule 2 of the IA and recorded on a standard IS91R form. [Back]
Note 41 See paragraph 41 below. [Back]
Note 42 See paragraphs 154 159, 163, 168 169, 172 176, 181 192, 195 198, 203 208 & 210 below. [Back]
Note 43 See paragraphs 10 and 16 above. [Back]
Note 44 Sections 84(1)(c) and (g). Radhas additional claim for unlawful discrimination on racial grounds, which was pleaded but not pursued at the hearing, is covered by section 84(1)(b). [Back]
Note 45 Section 82(2)(a). [Back]
Note 46 Paragraph 5(1) of the Immigration (Notices) Regulations 2003. [Back]
Note 47 Pursuant to powers provided for in paragraph 321A(1) of the IRs. [Back]
Note 48 See page 2 of the IDI (May/05 edition). [Back]
Note 49 See paragraph 141 below. [Back]
Note 50 The same basis of decision-making as had been taken in the refusal decision see paragraphs 5, 10, 16 & 120 above. [Back]
Note 51 See paragraph 120 above. [Back]
Note 52 See paragraph 168 below for further detail about the preparation of the explanatory statement. [Back]
Note 53 See also paragraph  below. [Back]
Note 54 See paragraph 34 above. [Back]
Note 55 See paragraphs 120 - 121 above. [Back]
Note 56 See paragraph 133(6) 14 above. [Back]
Note 57 See paragraph 120 above for the original basis for that decision. [Back]
Note 58 The bold highlighting has been added to identify the critical passages. [Back]
Note 59 It was not clear to Radhas counsel or the case presenter whether the operative decision was that taken by IO Newton on 24 May 2011 or the subsequent decision not to withdraw that decision said to have been taken by a CIO but undocumented on the CID log and communicated by telephone to Urvi Shah by IO Ghudial on 25 May 2011. It was accepted by both parties that only one of these decisions was ever operative between 24 May and 28 May 2011 and whichever was operative on 28 May 2011 was withdrawn by CIO Khans decision. Since the later decision was to refuse to reconsider the earlier decision, logically the decision of 24 May 2011 was the only decision that had ever been effective and was the one that was withdrawn on 28 May 2011. [Back]
Note 60 See paragraph 156 (6) below. [Back]
Note 61 As is explained in paragraphs 172- 175 below, the decision dated 8 August 2011 refusing her leave to enter was a fresh decision but it was not one that resulted from CIO Khans decision dated 28 May 2011. [Back]
Note 62 Namely the SSHDs response to the judicial review claim that had just been filed. [Back]
Note 63 See paragraphs 148 151 above. [Back]
Note 64 Paragraph 6(3) of schedule 2 to the 1971 Act as explained in paragraph 3.2 of section 6 of chapter 9 Refusal of Leave to Enter (Procedure) of the IDI (ed. May 2005). [Back]
Note 65  1 All ER 195, Webster J. [Back]
Note 66 See also paragraph 132 above. [Back]
Note 67 See paragraphs 202 204 below. [Back]
Note 68 See paragraphs 152 - 153 above. [Back]
Note 69 See paragraphs 212 - 213 below. [Back]
Note 70 See paragraphs 202 - 204 below. [Back]
Note 71 This was an obvious error and in context it is clear that paid or unpaid employment was intended. [Back]
Note 72 The copy of the decision added to the hearing bundle was one disclosed by the SSHD. It contained a fax strap line which was dated 8 August 2011 showing that it had been sent out by fax by the UKBA and it must have been sent to the Treasury Solicitor since it had not been faxed to Radhas solicitors. [Back]
Note 73 See paragraph 152 above. [Back]
Note 74 See paragraphs 164 168 above. [Back]
Note 75 See paragraphs 199 - 200 above. [Back]
Note 76 See paragraph 41 above. [Back]
Note 77 See paragraph 47 above. [Back]
Note 78 See paragraph 83 above for extracts from this statement. [Back]
Note 79 See paragraphs 103 & 135 above. [Back]
Note 80 See paragraphs 38 39, 52, 79 & 202 above. [Back]
Note 81 See paragraphs 1A, 2A(1A), (2A), (7) and 16(1A) of schedule 2 of the IA. [Back]
Note 82 The detention decision was taken under paragraph 16(2) to schedule 2 of the IA. [Back]
Note 83 Paragraph 67 above. [Back]
Note 84 Paragraph 112 above. [Back]
Note 85 Paragraph 127 above. [Back]
Note 86 Paragraph 141 above. [Back]
Note 87 Paragraph 148 above. [Back]
Note 88 Paragraphs 131 & 167 above. [Back]
Note 89 Paragraph 179 above. [Back]
Note 90 Paragraph 180 above. [Back]
Note 91 Paragraph 205 & 209 above. [Back]
Note 92 Paragraph 209 above. [Back]
Note 93 Paragraphs 193 & 217 above. [Back]
Note 94 Paragraph 217 above. [Back]
Note 95  1All ER 983, QBD approved in R (I) v SSHD  EWCA Civ 888, CA. [Back]
Note 96 R (on the application of Razgar v Secretary of State for the Home Department  UKHL 27,  2 AC 368; HL(E) per Lord Bingham. [Back]
Note 97 See paragraph 15 above. [Back]
Note 98 See paragraph 148 above. [Back]
Note 99 Ibid., paragraph 36 - 37. [Back]
Note 100 Ibid., at paragraph 29 per Lord Dyson. [Back]
Note 101 Section 11 and paragraph 16 of schedule 2 of the IA. See further Khadir v SSHD  UKHL 19,  1AC 207, HL, per Lord Browne [Back]
Note 102 See GG v SSHD  EWCA Civ 1157,  All ER (D) 30 (Aug), CA. [Back]
Note 103 Paragraph 6(3) of schedule 2 to the IA. [Back]
Note 104 See paragraph 165 above. [Back]
Note 105 See CPR 31.6(a) & (b) and 31.12. [Back]
Note 106 Paragraph 6(3) of schedule 2 to the IA and paragraph 3.2 of section 6 of chapter 9 of the May 2005 edition of the IDIs (Refusal of Leave to Enter (Procedure)). [Back]
Note 107 See paragraphs 180 - 191 above. [Back]
Note 108 See paragraph 29 above. [Back]
Note 109 See paragraph 128 above. [Back]
Note 110 See paragraph 141 above. [Back]
Note 111 See paragraph 148 above. [Back]
Note 112 See paragraphs 152 & 156(4) above. [Back]
Note 113 See paragraph 158 above. [Back]
Note 114 See paragraphs 132 & 168 above. [Back]
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