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Spirited away

Spirited away

The harsh reality of immigration law enforcement is dramatically exposed by the facts of the case of R (on the application of Shaw & Anor) v Secretary of State for the Home Department [2013] EWHC 42 (Admin). In this case a Jamaican woman and her five year old son who had been resident in the UK since 2002 and since birth in 2005 respectively were detained at the airport without warning when they attended there as requested. They were then bundled onto the first flight to Jamaica.

Plane taking off
By Dave Keeshan

They had recently made a trip to Jamaica for a family funeral and on re-entering the UK had aroused the suspicion of an Immigration Officer. The woman had originally entered as a visitor, switched to being a student (back when that was allowed) and then extended her leave on several occasions, most recently in 2009. In interview she eventually admitted to working more hours than she was permitted. She and and her son were granted Temporary Admission and allowed to leave the airport. They were asked to return a few days later with evidence of progress with her studies.

This they did. The evidence was considered insufficient. Allowed only one phone call, which was made to the woman’s aunt, who was waiting for them outside the airport, they were placed on a flight within a short time and removed.

Imagine. After nine years of residence, with no warning, no opportunity to put your affairs in order, no chance to say goodbye or pack and with no preparation for your five year old child, you are suddenly spirited away and bundled onto a plane.

In a subsequent judicial review application the Secretary of State undertook to bring the woman and her child back to the UK and reconsider the decision to remove them. The outcome of that case can be seen from the Court of Appeal judgment in ZS (Jamaica) and Another v Secretary of State for the Home Department [2012] EWCA Civ 1639. The Claimant won her appeal in the First-tier Tribunal but that was overturned in the Upper Tribunal on an appeal by the Secretary of State and that decision was upheld by the Court of Appeal. In short, she eventually lost her claim.

On the discreet question of the treatment in being bundled onto a flight, the High Court held that it was an infringement of the common law right of access to justice:

The removal directions were, in my judgment, unlawful for the simple reason that the Defendant failed to give the Claimants any time at all to consider whether to seek legal assistance.

Damages were awarded for the de facto detention between the time that the Claimants were told they were to be removed and escorted to the plane and the time they was able to disembark from the plane. This amounted to false imprisonment because the Claimants were forced onto a plane against their will that they were unable to leave the plane until it disembarked. There was in truth no legal power to enforce the removal because the breach of the common law duty of access to justice rendered the removal directions unlawful. £2,000 was awarded to each Claimant.

Unlawful detention claims for unlawful removals should be considered as a potential remedy.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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