The Court of Appeal (CoA) had to decide whether a person was unlawfully detained at Heathrow Airport as a result of his leave to enter being cancelled by immigration officers who concluded, unfairly, that he had made a false representation to obtain the leave.
Background:
The appellant, a 19 year old Pakistani national (at the time of the incident), was granted leave to enter the UK and remain for a course of study at De Montfort University on the 3rd of September 2022.
To be admitted to the course, the appellant had to provide evidence of his proficiency in English through a test conducted by the Oxford International Education Group (OIEG) and his intermediate examination by the AJ and K Board of Intermediate Education in Mirpur. He had used the same tests to demonstrate his proficiency in English to obtain leave to enter the UK. However, when questioned by border officials on his arrival at Heathrow Airport on the 9th of September 2022, concerns were raised about his ability to speak English.
The appellant was interviewed by Ms. Richards from 20:16 to 21:30. After the interview, she had doubts regarding his command of English due to his poor answers regarding his previous course of study. As a result, and despite having a valid entry reason, he was referred for a further interview. The appellant was then interviewed again at 23:43 by another of the Border Force officers, Mr. Badal. The appellant requested an Urdu interpreter at the outset of the interview. From the interview, Mr. Badal concluded that he knew very little about his proposed course and raised questions as to the authenticity of the English test – as the appellant had no apparent recollection of taking the OIEG test. The interview was concluded in the early hours of the 10th of September.
After consulting with a senior officer, a decision was made to cancel his leave to enter. Then a third interview took place in which this was explained to him. He was told he would be returned to Pakistan on a flight leaving at 15:05. He signed a waiver for administrative review. However, during his detention, awaiting the next available flight, the appellant instructed SAJ Legal, who sent a letter before claim as a result of which the removal directions were cancelled after he was released.
The appellant challenged the lawfulness of his detention and the cancellation of his leave. The High Court ruled that he was unlawfully detained for 11 to 12 hours and awarded the appellant damages of £4,500.
Decision:
The CoA allowed the appeal and concluded the appellant was unlawfully detained for 11 to 12 hours, resulting in damages of £4,500. The Court noted that the appellant’s detention was lawful until the decision to cancel his leave to enter. Indeed, “Until that time he was detained in accordance with paragraph 16 of Schedule 2 pending a decision on whether to cancel his leave, and there were clearly grounds for concern about the appellant’s knowledge of English and the authenticity of his certificates.” The detention after the continued decision was made was, however, unlawful, as it could not be justified as authorised by paragraph 16 of Schedule 2.
The Court rejected the argument that the outcome of the decision could result in retrospective unlawfulness due to the wrong decision being taken. “The lawfulness of the detention cannot depend on whether the decision made at the conclusion of the examination is lawful.”
The reason the decision was procedurally unfair arose due to the failure to “ask an additional question at the end of the examination ('Your certificates are fake, aren't they, Mr. Tazeem?').”
The Secretary of State can benefit from a grace period in some circumstances, as found in Hardial Singh. In this particular case, it does not apply, as the detention was not to put any appropriate conditions to be put in place for his release.
Implications:
This decision highlights that, despite having obtained a leave to enter the UK, border officers have the right to carry out interviews. A detention will not be regarded as unlawful if this detention allows officers to examine the facts. The outcome of the decision will not render the detention for the purposes of examination unlawful. The ruling affirms that detention must be justified and that any procedural unfairness should be challenged.
