In July the High Court awarded an Indian lady, Radha Patel, £125,000 in damages for her treatment by immigration officials on and after arrival as a family visitor. The case is Radha Naran Patel v Secretary of State for the Home Department  EWHC 501 (Admin) and it is extremely long judgment and has received mainstream press coverage, so I am not going to go over the full details here. As an interesting case I want to make sure I can easily find it in future, though, and that is as ever my main criterion for adding material to Free Movement.
It is an interesting one as it involves stark findings of dishonesty and manufacture of evidence by senior immigration officials.
Paragraph 3 of the judgment sets out the stark nature of the claim for damages, which the judge ultimately goes on to accept in full:
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.
To cut a very long story short, Radha Patel arrived in the UK in possession of a family visit visa which had been issued following a successful appeal of an earlier refusal. It is unusual for a person in possession of entry clearance (colloquially, a visa) to be refused entry: the whole point of the pre-entry application process is to conduct checks before travel, so detailed further checks are generally unnecessary. There are very limited reasons why a person can be refused entry even though they possess a visa and these are set out at paragraph 321 and 321A of the Immigration Rules. The two main criteria for refusal are change of circumstances and dishonesty.
Radha Patel arrived exhausted at Heathrow at around 6pm having had to travel a long way to get to Delhi even before the long flight to the UK. Evidently, she was questioned on arrival. Although there were no clear contemporaneous records, an Immigration Officer later asserted she had admitted that she intended to take employment. The short note available did not bear this out and Ms Patel asserted that she made no such admission but was bullied and intimidated with only another Immigration Officer acting as an interpreter for her.
Ms Patel was detained at the airport while her brother waited outside. At some point he was interviewed by telephone. His denial that his sister intended to work was considered by the Immigration Officer to be “inconsistent” with his sister and made him unsuitable as a sponsor. Here we have a classic example of the culture of disbelief: the starting point for immigration officials is that migrants and their families are dishonest. Should they admit their dishonesty, this confirms the perspicacity of the immigration official, but denials of dishonesty are interpreted as yet further evidence of dishonesty.
A long procedural history ensues. Eventually a Chief Immigration Officer recognised that the initial decision was unsustainable. It was withdrawn. However, no-one at the Home Office recognised the effect of the withdrawal: this reinstated Ms Patel’s original entry clearance and leave to enter. Two subsequent in-country appeals were effectively void, although not before in one of the appeals the judge had made factual findings accepting that Ms Patel had never made the admissions asserted by the Home Office, meaning that those admissions must have been manufactured.
There was a long delay in retrieving Ms Patel’s passport, and she was unable to leave the UK while the appeals were being pursued because so doing would cause the appeals to be treated as abandoned because of s.104 of the Nationality, Immigration and Asylum Act 2002. Once the passport was returned, Ms Patel left the UK to return to her family and two small children in India while the judicial review application continued in her absence.
The conclusion to the case is salutary:
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.
I confess to feeling a sense of unease as I read the judgment. It took me a while to work out why: it bears some similarities to asylum decisions where civil servants or judges ascribe motives to various actors and make simplistic assumptions about the motivation for behaviour. Generally with the Home Office, incompetence is to blame rather than conspiracy and for at least some of the actions by the immigration officials involved in this case, ignorance and incompetence are potentially plausible explanations for their actions.
It is a fantastic result for the claimant’s legal team of Shivani Jegarajah, Amanda Walker and Urvi Shah. The Home Office are appealing, though, so it is not the end of the saga.