UPDATE 10/2/16: the judge has withdrawn the judgment.
A married Indian couple detained in a dawn raid have lost their claim for unlawful detention. After successfully studying in the UK for some years, Ms Joshi’s latest application ran into problems when the college to which she applied to study a PhD was struck from the register of approved colleges. She was unable to find a new college in the 60 day grace period and so put in an application for more time. In the application she also claimed that her removal would breach her human rights. Her husband, Mr Thomas, applied at the same time as her dependent.
The application was refused but no notice of refusal was sent to Ms Joshi and Mr Thomas. Instead, she and her husband were paid an “enforcement visit” at 6.15am on 11 June 2015 and they were detained and then given the notice of refusal. The judge, Professor Christopher Forsyth, rejects the contention that the service of the decision was an abuse of process and therefore invalid.
The couple’s human rights claim was certified by the Home Office as clearly unfounded, meaning that they had a right of appeal but one that could only be exercised after removal. The judge rather seems to misunderstand the appeal regime, as he warns:
This result serves as a warning to claimants generally not to over egg the pudding. Including a weak human rights claim in an application can lead to certification as “clearly unfounded” with the loss of in country appeal rights.
In fact, if no human rights claim is made then there is no right of appeal at all, as appeals are now available only against refusal of a human rights or asylum claim. The judge also cites an out of date version of the definition of “human rights claim” at section 113 of the 2002 Act, although that is presumably because this was pleaded by one of the parties.
The judgment ends with the judge expressing some doubt about the way in which Ms Joshi and Mr Thomas were treated, but he concludes that it was lawful even if not necessary:
I have considerable sympathy with the Claimants. The events of the 11th June 2015 must have been most unpleasant for them. It is not clear to me that it was necessary for them to be taken into detention before they were informed of that their application for further leave had been refused.