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Zimbabwean national unlawfully detained after Home Office fails to serve immigration decision

Zimbabwean national unlawfully detained after Home Office fails to serve immigration decision

Substantial damages of £10,500 have been awarded to a claimant who was unlawfully detained for a period of 70 days. The Home Office had failed to serve the Claimant with notice of a decision on his application to vary his leave to remain in the UK before detaining him, rendering his detention unlawful. The case is R (on the application of) Godwin Chaparadza v Secretary of State for the Home Department [2017] EWHC 1209 (Admin).

Background

The Claimant, a Zimbabwean national, entered the UK on 5 September 2004 with leave to remain as a student. His leave to remain was extended on a number of occasions, the last such extension being granted until 31 July 2011. On 27 July 2011, the Claimant applied to vary that leave so as to enable him re-sit one of his exams so he could complete a Masters-level degree. By virtue of section 3C of the Immigration Act 1971, the 2011 application had the effect of extending his leave to remain, pending the decision on his application.

In the event, the 2011 application was rejected because of the Claimant’s failure to disclose a material fact (namely that he had criminal convictions), however, the decision letter was incorrectly sent to the Claimant’s college and not to his personal address. The Claimant was therefore unaware that the 2011 application had been rejected.

On 2 June 2013, the Claimant was arrested for driving related offences and subsequently served with notice that he was liable to removal from the UK as an overstayer. The Claimant then claimed asylum on the basis that he feared persecution if returned to Zimbabwe. The Asylum claim was refused by the Home Office on 2 July 2013, and the Claimant became appeal rights exhausted on 25 February 2014.

The Claimant was detained whilst reporting on 11 April 2014. Further submissions in support of his asylum claim were made and rejected – with the Home Office refusing to treat them as a fresh claim. The Claimant issued a claim for judicial review, and his detention came to an end on 20 June 2014, as the claim was considered a barrier to his removal.

Judicial Review Proceedings

The Claimant’s challenge against the Home Office concerned three grounds of complaint:

  1. Failure to serve the 2011 decision in accordance with the Notice Regulations;
  2. Refusal to treat the further submissions in respect of asylum as a fresh claim; and
  3. Lawfulness of the Claimant’s detention. It was expressly alleged that the detention was unlawful because of the “pending application from 2011” and the continuation of leave under s.3C of the 1971 Act.

Failure to Serve Notice of the 2011 Decision

The first question for determination was whether, in the absence of notice, the 2011 decision could have any legal effect in respect of the Claimant’s leave to remain [19]. It was recounted that the starting point for the analysis is the general requirement under s.4 of the 1971 Act that such decisions are to be the subject of written notice [19]. Without such written notice, it was clear that the decision would not comply with the mandatory requirements of that section and was legally without effect [20].

The Court then went on to consider whether the making of the asylum claim in 2013 amounted to a variation of the 2011 application to extend leave to remain, and, if so:

  1. whether the application as varied comprised both the original purpose for seeking an extension and the asylum claim (thereby requiring a determination by the Defendant in respect of both); or
  2. whether it comprised the asylum claim alone [23].

Did the making of the asylum claim supplement or supplant the Claimant’s original purpose for seeking a variation of leave to remain?

To answer this question, the Court looked to section 3C of the 1971 Act (as applicable at the relevant time).

3C Continuation of leave pending variation decision

(1) This section applies if –

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when –

(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).

(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

Applying the analysis of the Court of Appeal in JH (Zimbabwe) [2009] EWCA 78 (‘JH’) to the present case, it was found that:

(a) The 2011 application triggered the extension of leave under s.3C(2) of the 1971 Act. That is because the application was made prior to the expiry of the existing leave. That extension commenced on 1 August 2011 immediately following the expiry of the existing leave;

(b) The asylum claim was made before any legally effective decision was made in respect of the 2011 application. That means that the asylum claim could amount to a variation of the original application within the meaning of s.3C(5) of the 1971 Act, notwithstanding the fact that the asylum claim is made for a different purpose than the original one under the 2011 application;

(c) It is a question of fact whether the asylum claim amounted to “a withdrawal of the first application or a variation of it (or neither)”: JH at [43]. The facts in this case suggest that there was no withdrawal of the 2011 application as such. It is notable that the Claimant continued to assert that he had not received any notice of the 2011 decision during his asylum interview and thereafter, and there is nothing in the papers before the Court that could be said to amount to an unequivocal withdrawal of the 2011 application. Moreover, the Defendant’s attempt to serve the 2011 decision even after the asylum claim had been made indicates that she too did not regard the 2011 application as having been expressly withdrawn. [27]

In other words, the asylum claim supplemented rather than supplanted the basis for the 2011 application, and any subsequent decision should have dealt with the Claimant’s application as varied [41]. This position is perhaps much clearer since JH, and the Court was consequently quick to dismiss arguments raised by the Home Office that adopting such an approach would encourage Claimants to make multiple applications so as abuse the system established by section 3C of the 1971 Act, and that Claimant’s could not make variations to an original application that were based on a different purpose to the first.

Although the 2013 asylum decision notified (in passing) the Claimant of the 2011 refusal to vary leave, the court did not agree with the Home Office that the 2013 decision could amount to a determination of the 2011 application as varied. The 2013 decision failed to satisfy any of the requirements of Regulation 5 of the Notice Regulations insofar as the earlier 2011 application was concerned [47]. It provided no reasons for the refusal to vary leave to remain, and there was no reference to any right of appeal against the decision. Accordingly, the notice of the 2011 decision contained in the asylum decision was invalid [48].

Unlawful Detention

Given that the 2011 decision was without legal effect, the extension of leave pending that decision (and any appeal against that decision) by operation of s. 3C(2) of the 1971 Act remained effective. The Claimant still had a lawful basis to be in the UK as at 11 April 2014 and there was no lawful basis for detaining him.

The Court went on to assess the Claimant’s damages, dismissing the Home Office’s submission that the Claimant should receive only nominal damages, since detention – they stated – would have been inevitable in any event:

The failure to give notice of the 2011 decision was more than a mere technical error given that its consequence was that there was no statutory basis for the detention at all… [53].

After surveying the case law, an award of £10,500 was deemed most appropriate. Keen to stress the unattractiveness of deploying a mechanistic approach to the damages calculation, the Court nonetheless held that the initial shock of detention faced by the Claimant warranted, on Thompson principles, a starting point of £3,500 for the first 24 hours, and a sum of £7,000 (equivalent to £100 per day) for the remaining period.

The Claimant’s final ground of complaint: that the Home Office failed to treat his further asylum submissions as a fresh claim, fell away as academic given the Court’s findings as to his continued leave to remain and the unlawfulness of his detention. The Court allowed the claim for judicial review.

The case is a welcome affirmation of basic unlawful detention concepts. If the Home Office fails to detain by the application of lawful policies, or deploys an improper application of Hardial Singh principles, it should be held to account and forced to fairly compensate the detained for its erroneous actions. Detaining someone who has effective s.3C leave to remain in the UK is clearly unlawful, regardless of whether the leave is only ongoing due to an all-too-common Home Office procedural error.

Rebecca Carr
Rebecca is a freelance paralegal based in London and is accredited as a Senior Caseworker under the Law Society’s Immigration and Asylum Accreditation Scheme. Rebecca completed an LLB at the London School of Economics; she has an LLM from the University of Toronto and has completed the BPTC.

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