England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 May 2017

Akhlaq Choudhury QC :

A. Introduction

1. By this claim for judicial review, the Claimant, a Zimbabwean national, seeks to challenge the following acts/decisions of the Defendant:

a) The Defendant's failure to serve notice of a decision made in October 2011in respect of an application to vary his leave to remain. The Claimant claims that the result of that failure is that his leave to remain continued by the operation of s.3C of the Immigration Act 1971 ("the 1971 Act") up to and beyond a period of detention to which he was later subject. I shall refer to this as "Ground 1";

b) The Defendant's refusals to treat his submissions in support of a subsequent asylum claim (which claim was rejected in 2013) as a fresh claim. The Claimant contends that these decisions are flawed in that they were based on an erroneous assumption that the Claimant's leave to remain had ended. I shall refer to this as "Ground 2"; and

c) The lawfulness of his detention from 11 April 2014 until 20 June 2014. The Claimant says that his detention could not have been lawful because he continued to have leave to remain pursuant to s.3C of the 1971 Act and he claims damages. I shall refer to this as "Ground 3"

2. The Defendant accepts that notice of the decision made in October 2011 was not given at the time. However, she contends that the making of the asylum claim in 2013 varied the earlier application to vary leave to remain so as to supplant the original purpose for seeking leave to remain. This meant that the decision on the asylum claim was all that was necessary and determinative of the Claimant's status. As such, the Defendant says, the failure to serve notice of the 2011 decision was irrelevant, the detention was not unlawful and no damages are due.

B. Factual Background

3. The Claimant 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, just prior to the expiry of his leave to remain, he applied to vary that leave ("the 2011 application"). The 2011 application was made outside the Immigration Rules to enable him to re-sit one of his exams so that he could complete a Masters-level degree in business studies. It is common ground that the 2011 application had the effect, by virtue of the operation of s.3C of the 1971 Act (as to which see below), of extending his leave to remain pending the decision on his application and any appeal against that decision.
4. The 2011 application was rejected because of a failure to disclose a material fact, namely that he had criminal convictions for driving under the influence of alcohol and other offences. Although that decision was apparently taken by the Defendant in October 2011 ("the 2011 decision"), it 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.
5. On 2 June 2013, the Claimant was arrested for driving without insurance and obstructing a police officer in the execution of his duty. Whilst in custody, a check on his immigration status revealed that he was an overstayer and he was served with notice that he was liable to removal. The Claimant then claimed asylum on the basis that he feared persecution if returned to Zimbabwe ("the asylum claim"). At his asylum interview conducted on 19 June 2013, the Claimant claimed that his father had died in 2003 after being beaten up by Zanu PF militias during a purge of opposition MDC supporters, that he had experienced problems with the Zimbabwean authorities himself, and feared that he would be persecuted and harassed if returned to Zimbabwe. When he was told that the 2011 decision had been sent to him he said that he had never received it.
6. The asylum claim was refused by the Defendant in a decision dated 2 July 2013 ("the 2013 decision"). The Defendant rejected the Claimant's claims of harassment by the Zimbabwean authorities and noted, amongst other matters, that he had visited Zimbabwe voluntarily at least five times since coming to the UK. The Claimant's appeal against that decision was rejected by the First Tier Tribunal on 11 December 2013. The Tribunal did not find his account credible. He was refused permission to appeal further and became appeals rights exhausted ("ARE") on 25 February 2014 following the Upper Tribunal's refusal to give permission to appeal.
7. On 11 April 2014 the Claimant was detained whilst reporting. On 25 April 2014, the Claimant made further submissions in support of his asylum claim. The Defendant, by a decision made on 6 May 2014, rejected the further submissions and refused to treat them as a fresh claim. A claim for judicial review was lodged on 5 June 2014 contending that the rejection of his further submissions was irrational, that there had been a failure to comply with notice requirements in respect of the 2011 decision and that his detention was unlawful.
8. The Claimant's detention ended on 20 June 2014 because the judicial review claim was considered to be a barrier to his removal and the claim had not been expedited.

C. Procedural background and the Scope of Permission to Amend

9. The Claimant was initially unrepresented when his claim for judicial review was lodged, although it would appear that there was some legal input in drafting the grounds of complaint. The claim challenged the same three acts/decisions of the Defendant identified in paragraph 1 above. It was expressly alleged that there had been a failure to comply with the Immigration (Notices) Regulations 2003 ("the Notice Regulations") in relation to the 2011 decision. In the Summary Grounds of Resistance, the Defendant maintained at that stage that there had been proper service of the 2011 decision.
10. Permission to seek judicial review was granted by Alex Bailin QC (sitting as a Deputy Judge of the High Court) on 4 February 2015. On 15 April 2015, the Defendant served her Detailed Grounds of Resistance, in which it was accepted that notice of the 2011 decision had been incorrectly sent to the Claimant's college. The 2011 decision appears to have been appended to the Detailed Grounds. However, the Detailed Grounds did not specifically address the arguments relating to the Notice Regulations.
11. The matter came on for hearing before Neil Cameron QC (sitting as a Deputy Judge of the High Court) on 15 October 2015. By then, the Claimant had obtained legal aid funding and was represented by Ms Sara Anzani. Not surprisingly, the Claimant's claim, as set out in Ms Anzani's skeleton argument, was formulated slightly differently from the original grounds of complaint. The hearing was adjourned. This was to enable clarification of three matters:

a) The first was the date when the Claimant became ARE – a discrepancy had arisen as to that because of a letter from the Upper Tribunal suggesting that he had become ARE on 14 April 2014. The significance of that, of course, is that his detention commenced before 14 April 2014, and, if his appeal rights were continuing, removal could not be said to be imminent. It was subsequently confirmed that the ARE date was in fact the earlier one of 21 February 2014;

b) The second matter to be clarified was the date when the Defendant claims the 2011 decision was served. The Claimant maintained that it had not been served;

c) The third and final matter to be clarified was the Claimant's grounds of complaint. The Claimant was given permission to amend his grounds so as to enable him "to formulate his case on when any s.3C leave rights were exhausted and whether any s.3C leave was terminated by the claimant making an asylum claim." This last point is of some significance as the Defendant contends that the grounds as now pursued go beyond the scope of that permission to amend.

12. Amended Grounds of Complaint ("the Amended Grounds") were duly served on 17 February 2016. The Amended Grounds sought to challenge the same three matters as before: (i) the failure to serve the 2011 decision in accordance with the Notice Regulations; (ii) the refusal to treat the further submissions in respect of asylum as a fresh claim; and (iii) the 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.
13. The Defendant served her Amended Detailed Grounds of Resistance ("the Amended DGR") on 10 March 2016 and asserted that it was "very much questionable that the grant of permission extends to the amended grounds". However, only one matter appears to have been expressly identified as being beyond scope in the Amended DGR and that was the allegation that the failure to serve the 2011 decision rendered the fresh claim decision irrational.
14. Before me, the Defendant maintained that the Amended Grounds went beyond the scope of the permission to amend. However, it was not entirely clear which matters went too far. One matter specifically identified in the Defendant's skeleton argument is that the Claimant is now relying on the failure to serve the 2011 decision "as opposed to the initial challenge to the failure to make that determination, which was the issue for which permission was granted". However, that point was without substance as the failure to serve was raised even in the original unamended grounds. As to other matters said to be beyond scope, it seems to me that these involved issues of fact that necessarily flowed from the pleaded claim that there had been a failure to give notice of the 2011 decision.
15. In any case, I do not accept that the Claimant lacks permission to rely upon the grounds now pursued. The permission to amend as set out in the order of Mr Cameron QC is unrestricted and is not based on any draft amended grounds. The scope of the permission to amend, therefore, has to be inferred from the submissions made on that occasion and upon which permission to amend was granted. It is clear from those submissions (as set out in the Claimant's skeleton argument for that hearing) that the failure to serve the 2011 decision in accordance with the Notice Regulations was identified as an issue. There is also reference to the consequences of that failure on the period of extension pursuant to s.3C of the 1971 Act. Accordingly, it may reasonably be inferred that those matters were intended to fall within the scope of the permission to amend.
16. Even if the scope of the permission to amend has been construed too broadly, I am satisfied that all of the grounds raised are arguable, that the essential underlying facts in respect of them have been pleaded from the outset (i.e. the alleged failure to serve the notice at all or in accordance with the Notice Regulations) and there is no suggestion that the Defendant has been prejudiced by having to address them. Accordingly, the Claimant is entitled to pursue them and, if permission is required, it is granted.
17. I turn therefore to the Claimant's Grounds. It is convenient, for reasons that will become apparent in due course, to deal with Grounds 1 and 3 first, before addressing Ground 2.

D. Ground 1 – Failure to Serve Notice of the 2011 Decision

18. As stated above, both sides accept that the 2011 application to vary the Claimant's leave to remain meant that his leave was statutorily extended by operation of s.3C of the 1971 Act. It is also accepted by the Defendant that, as at the date of his asylum claim in June 2013, the Claimant had not been served with notice of the 2011 decision on that application.

(1) Did the 2011 decision have any legal effect?

19. The first question that arises is whether, in the absence of notice, the 2011 decision can have any legal effect in respect of the Claimant's leave to remain. The starting point for the analysis here is the general requirement under s.4 of the 1971 Act that such decisions are to be the subject of written notice. Section 4 of the 1971 Act (in the version current at the time) provided as follows:

"4.— Administration of control.

(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument. (Emphasis added)".

20. Until notice is given the decision would not comply with the mandatory requirements of that section and is legally without effect. This uncontroversial point is confirmed in a number of cases. I was referred to the decision of the Upper Tribunal in Syed [2013] UKUT 00144 at [18], and the point is made even more clearly by the Court of Appeal in Regina (Mehmood) and Regina (Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744, where it was stated:

"42 The short answer to these submissions is that section 4 of the 1971 Act explicitly provides that the power to give leave to remain or to vary any leave "shall be exercised by notice in writing given to the person affected". Accordingly, the fact that internally the Secretary of State may have decided to refuse Mr Ali's application to vary his leave on 7 July is legally irrelevant. What is legally relevant is the date and time of the service of notice in writing to the person affected. Until then there is legally no decision.

43 In this respect the 1971 Act reflects the important statement of principle in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 , para 26. Lord Steyn stated that the requirement of notice of a decision before it can have legal effect "is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system …" (Emphasis added)".

21. Section 4 of the 1971 Act is not, however, the only relevant provision governing the notice of decisions made in respect of an application under s.3C of the 1971 Act. Regulation 2 of the Immigration (Continuation of Leave) (Notices) Regulations 2006 provides that:

"For the purpose of section 3C of the Immigration Act 1971 an application for variation of leave is decided—

(a) when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002; or where no such notice is required,

(b) when notice of the decision has been given in accordance with section 4(1) of the Immigration Act 1971".

22. The regulations made under s.105 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') are the Notice Regulations. However, as at the date of the asylum claim, the Claimant had not received any notice at all of the 2011 decision, let alone one which complied with the requirements of the Notice Regulations. The Upper Tribunal in Syed [2013] UKUT 00144 at [18] held that the failure to serve notice of a decision, even one which otherwise satisfied the Notice Regulations, meant that that notice did not comply with the general requirement under s.4(1) of the 1971 Act that the notice be in writing. I agree with that analysis. Accordingly, as at the date of the asylum claim, the 2011 decision was without legal effect. That means that at the time of the asylum claim, the 2011 application to vary leave remained extant.

(2) Did the making of the asylum claim vary the 2011 application?

23. The question which then arises is 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:

a) 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

b) whether it comprised the asylum claim alone.

24. In other words, if the making of the asylum claim amounted to a variation of the 2011 application, did it supplement the original purpose for seeking a variation of leave to remain or did it supplant the original purpose? The Claimant submits that the effect of the asylum claim was to supplement the 2011 application and that the 2013 decision (being a decision on the asylum claim alone) meant that the 2011 application (as varied) remained undetermined with the consequence that the statutory extension of leave to remain continued in operation. The Defendant submits that there can be only one application to vary at any one time and that, the asylum claim having supplanted any previous application, the 2013 decision on the asylum claim was determinative of the Claimant's status (subject to any appeals). The answer as to which of these submissions is correct lies in a proper understanding of the effect of s.3C of the 1971 Act
25. Section 3C of the 1971 Act (in the version current at the relevant time) so far as relevant provided as follows:

"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)."

26. The operation of this section was considered by the Court of Appeal in JH (Zimbabwe) [2009] EWCA Civ 78 ("JH"):

"35 The key to the matter is an understanding of how s.3C operates.... The section applies, by subs.(1) , where an application for variation of an existing leave is made before that leave expires (and provided that there has been no decision on that application before the leave expires). In that event there is, by subs.(2) , a statutory extension of the original leave until (a) the application is decided or withdrawn, or (b), if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c), if an appeal has been brought, that appeal is pending: I paraphrase the statutory language, but that seems to me to be the effect of it. During the period of the statutory extension of the original leave, by subs.(4) no further application for variation of that leave can be made. Thus, there can be only one application for variation of the original leave, and there can be only one decision (and, where applicable, one appeal). The possibility of a series of further applications leading to an indefinite extension of the original leave is excluded. However, by subs.(5) it is possible to vary the one permitted application. If it is varied, any decision (and any further appeal) will relate to the application as varied. But once a decision has been made, no variation to the application is possible since there is nothing left to vary.

36 Once the operation of s.3C is understood, the concern of the tribunal in DA Ghana about nullifying the prohibition in subs.(4) if a second application is treated as a variation of the first can be seen to lose its force. A second application can be treated as a variation of the first only up to the point when the Secretary of States makes a decision on the application. There is nothing surprising about subs.(4) having only a limited impact during that period, given that it is qualified by subs.(5) which expressly permits a variation of the first application. Thereafter, however, subs.(4) is effective to prevent any further application which might otherwise have been made right up to the time when an appeal in relation to the first was no longer pending, and to prevent a succession of such applications. Far from being nullified, it retains an important function in avoiding abuse of the system.

37 As to the tribunal's emphasis on the purpose for which an application is made, it is difficult to see why a difference in purpose should determine whether one application is capable of amounting to a variation of another. The statute refers, in s.3C(1) , to an application for "variation" of existing leave even if the application is for a different purpose from that of the existing leave: for example, if the original leave is to remain as a student, an application for variation of that leave will fall within s.3C(1) even if it applies for leave to remain as a spouse. As a matter of language, there is no reason why a later application should not also be treated as a "variation" of the first application even if it is for a different purpose. I do not accept that a variation can only arise where the later application is for the same purpose but with different details. In any event it seems to me that an application for leave to remain as a spouse is an application for the same essential purpose even if the form of leave sought is in one case indefinite and in the other case limited.

38 I do not think that anything can turn on whether the later application is in the same prescribed form as the first application. The prescribing of forms lies within the power of the Secretary of State and the decision whether to prescribe different forms for different types of application is a matter of executive judgment on which the question whether something is a variation should not depend. For example, the form prescribed by regulation 6 relates to categories as varied as "au pair" to "postgraduate medical/dental training" and "other purposes/reasons not covered by other application forms". There is no evident reason why the switch from au pair to postgraduate dental trainee should be capable of counting as a variation, whereas the switch from indefinite leave to remain as a spouse to limited leave to remain as a spouse should not, just because the same form has been prescribed for the former whereas different forms have been prescribed for the latter.

39 It also makes good sense to adopt an approach towards variations that will allow decisions to take account of any relevant change of circumstances since the first application was made, whether the change is one of detail or affects the capacity in which the applicant seeks leave to remain (for example, the student who has married a British citizen since making his application for leave to remain and who now seeks leave to remain as a spouse). Nor do I see any serious practical downside, such as the risk of delay: the speed with which a decision is made is to a large extent in the hands of the Secretary of State.

40 I am therefore satisfied that a later application is capable of being treated as a variation of the first application even if it is for a different purpose and on a different form.

…

43 In the light of the conclusion I have reached on the legal issue, I turn to consider whether the second application amounted as a matter of fact to a withdrawal of the first application or a variation of it (or neither)… (Emphasis Added)"

27. Applying that analysis to the present case, it is clear 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.

28. The fact that there is no withdrawal of the 2011 application suggests that it was varied.^[1] Both parties agree that the asylum claim had the effect of varying the 2011 application. What they disagree on is whether the 2011 application, so varied, comprises both the leave to remain purpose and the asylum claim or only the latter. The Defendant submits that the making of the asylum application had the effect of "overtaking the application for leave to remain and varying it so the [2011 application] fell to be determined, not as an application for leave to remain outside the [Immigration] Rules, but as an asylum claim". Ms Rowlands, for the Defendant, relied upon a range of matters in support of that submission. Without doing any disservice to the breadth of Ms Rowlands' submissions, these may be summarised as follows:

a) First, the effect of s.3C(4) of the 1971 Act and the Court of Appeal's analysis of its effect in JH, namely that "there can be only one application for variation of the original leave, and there can only be one decision (and, where applicable, one appeal)" (JH at [35]), precludes any continuation of the leave to remain aspect of the 2011 application. I shall refer to this as 'the statutory argument';

b) Second, the Defendant's Guidance precludes there being more than one form of leave being granted at any time, and that means that as soon as the asylum claim was made it necessarily had the effect of replacing the application for leave to remain. I shall refer to this as the 'Guidance argument'; and

c) Third, it is said that the Claimant's approach would result in multiple variations of the original application and a later asylum claim, all of which would lead to multiple decisions, multiple appeals and an artificially extended right to remain. In other words, there would be a risk of abuse with the Claimant's approach. I shall refer to this as 'the abuse argument."

29. Each of these arguments is considered in turn.

(2)(a) The statutory argument

30. The statutory argument, as I understand it, is that as s.3C(4) only permits a single application for variation of the original leave at a time, any subsequent variation of that application operates to supplant the original basis for the application. I do not accept that argument. As a matter of statutory interpretation there is nothing in s.3C of the 1971 Act that precludes an application to vary leave to remain made for one purpose being varied so as to add another purpose for seeking leave to remain. The particular mischief at which s.3C(4) of the 1971 Act is directed is the making of repeated applications so as to extend leave indefinitely. However, section 3C(5) expressly contemplates that the application to vary can itself be varied so long as that variation is made before a decision is reached on the original application. A variation to add another purpose to the original application prior to the decision does not undermine the statutory restriction in s.3C(4) on making repeat applications any more than does a variation that has the effect of supplanting the original purpose. In both cases, the decision-maker will be faced with a varied basis for the original application.
31. Furthermore, there is nothing in the statutory language of s.3C suggesting that variations are limited to matters of detail in relation to the same original purpose. Indeed that suggestion was expressly rejected by the Court of Appeal: see JH at [37]. No other statutory provision was identified as supporting the proposition that an applicant may rely on only one purpose for seeking leave to remain at any given time or in an application to vary that leave. The Court of Appeal's statement in JH that "there can be only one application for variation of the original leave" does not preclude there being a single application based on more than one purpose. Indeed, given that the Court of Appeal found that the second application could, as a matter of fact, have the effect of withdrawing or varying the first application (see JH at [43]), it seems to follow that a finding that there had not been a withdrawal would necessarily involve a variation comprising the purposes raised in both applications.

(2)(b) The Guidance argument.

32. This argument is based on the Defendant's Guidance being a correct interpretation of the law. As a starting point it must be said that only limited weight can be given to the two Guidance documents to which the Court was referred: 'Applications for leave to remain: validation, variation and withdrawal' and 'Leave extended by section 3C…'. Neither of these was in force at the relevant time (at least not in the version produced to the Court), and they cannot, in any event, be regarded as an authoritative interpretation of the law.
33. Reliance was placed, in particular, on the fact that the Guidance states that only one form of leave can be granted at any one time. It would undoubtedly be administratively easier for the Defendant only to have to manage one purpose for seeking leave to remain per application. However, I was not taken to any statutory provision imposing such a limitation on applicants (other than s.3C of the 1971 Act, which, as I have said, does not have that effect). Indeed, if applications were limited in that manner so that an applicant had to choose a single purpose for seeking leave when they might have more than one available to them, it could result in unfairness. There may well be situations where a change in circumstances means that it becomes necessary for an applicant to seek leave to remain on more than one basis. Such a possibility is expressly envisaged in Macdonald & Toal's Immigration Law and Practice, 9^th ed (2014), para. 3.116, which states:

"…[I]t should not be assumed that an applicant wishes to withdraw the original grounds simply because they appear incompatible with later grounds. For example, if a person asks for leave to remain as a foreign spouse after an initial application to remain as a student, it may well be that both applications should be considered, since it may be necessary to make a decision on the student point as well as the marriage grounds."

34. This example appears to be drawn from the Court of Appeal's analysis in JH: see JH at [39]. It was not suggested by the Court of Appeal that the change of circumstances necessitating the later application would require the initial application to remain as a student to be withdrawn.
35. Mr Southey QC, who appeared for the Claimant with Ms Anzani, also points out that there could be unfairness specifically in the case of a subsequent asylum claim (which the Defendant accepts may be made at any stage) if the applicant was required, in making that claim, to eschew any previous basis for seeking leave to remain. Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, so far as relevant, provides

"8 Claimant's credibility

(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies.

…

(5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification."

36. The effect of s.8(5) of the 2004 Act is that an applicant with an extant application to extend leave to remain must make his asylum claim as soon as the grounds for that claim arise (e.g. upon a change of circumstances in his country of origin) or risk damaging his credibility. However, on the Defendant's interpretation of s.3C of the 1971 Act, the effect of the asylum claim would be to replace the original purpose for the application to extend even though that might provide a legitimate alternative basis for leave to remain. That could put an applicant in a very difficult position and it is not at all clear why he should not be able to pursue both bases for his application for leave to remain. Indeed, s.8(5) of the 2004 Act appears to envisage that very possibility.
37. Even if, contrary to the above, it were the case that only one type of leave could be granted at a time, there does not appear to be any good reason why all of the grounds for seeking leave to remain could not be considered at the same time. The Defendant could, if appropriate, apply any policy against there being more than one type of leave at the decision stage having considered all the grounds for seeking leave. That approach would appear to be consistent with that which occurs at the appeal stage, whereby an applicant can, if invited to do so under the 's.120 procedure', raise all of the grounds on which he seeks to rely at the appeal stage even if not raised previously: see AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 at [83] and [106], where it was acknowledged that there can often be overlapping grounds. It would be somewhat perverse if an applicant were able to raise further grounds on appeal but was not permitted, before any decision is made, to vary an existing application to include those other grounds.
38. It follows from the above that I do not accept the Guidance argument.

(2)(c) The abuse argument

39. The risk that this approach to variation would result in the Defendant being burdened with multiple applications to vary, thereby artificially extending leave to remain, was also considered by Wall LJ in JH:

"49 My principal concern during the course of argument was that, whereas the appellant in the present case is plainly genuine, the remedy proposed might be open to abuse by unscrupulous applicants, who would make repeated applications for variation as a means of prolonging indefinitely the process put in place to adjudicate finally upon their claims. It seemed to me, however, that Mr. Cox had several compelling arguments against such an outcome. The first, of course, is that identified by My Lord in paragraphs 36 of his judgment. The second is that any variation application requires the payment of a substantial fee, a fact which, Mr. Cox argued, was, of itself, likely to prove a substantial disincentive. In any event, it seems to me that these two factors, either jointly or severally, are amply sufficient to prevent abuse."

40. Those points apply just as much in the present case as they did in JH.

(2)(d) Conclusion in respect of variation

41. If, as appears on the facts to be the case, the 2011 application was not withdrawn at any stage, then in my judgment, it was varied so as to include both the leave to remain claim and the asylum claim. In other words, the asylum claim supplemented rather than supplanted the basis for the 2011 application. Thereafter any decision should have dealt with the Claimant's application as varied.

(3) Did the 2013 decision amount to a determination of the 2011 application as varied?

42. The next issue is whether the 2013 decision was effective to amount to a decision on the application as varied. I should note that the Claimant argued that it was incumbent upon the Defendant, when considering the asylum claim, to consider any other Immigration Rule engaged by the Claimant's application even if not raised on the particular application before her. Reliance was placed on the case of R v Immigration Appeal Tribunal ex p Hubbard [1985] Imm AR 110 where it was held that the immigration appellate authorities are not restricted to considering an Immigration Rule expressly addressed by the Secretary of State in a decision. However, it seems to me that that decision, which deals with procedural requirements for appeal hearings, does not provide support for the more general proposition mentioned above. I do not consider that the Defendant is, as a result of that case, required to second-guess what possible grounds there might be in support of an application if these are not raised expressly by the applicant. However, the situation here did not require the Defendant to second-guess anything. She had notice of all of the grounds relied upon in the application as varied.
43. The 2013 decision refers to the 2011 application but states that, "This was refused on 11 October 2011". As already discussed, there was no legally effective notice given to the Claimant of that decision at the time. However, the Claimant was being made aware by this written asylum decision that his earlier application had been refused. Does that provide sufficient notice of the refusal to vary leave so as to amount to a decision for the purposes of s.3C(2)(a) of the 1971 Act thereby bringing the period of extension to an end (subject to any appeal)?
44. In my judgment it does not. That is because the particular requirements for notice to be effective in these circumstances have not been met. Section 105(1) of the 2002 Act gives the Defendant power to make regulations:

… requiring a person to be given written notice where an immigration decision is taken in respect of him.

45. Subsection 105(2) of the 2002 Act provides that:

"(2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state –

(a) that there is a right of appeal under that section, and

(b) how and when that right may be exercised."

46. As already stated, the relevant regulations made under that section are the Notice Regulations. Regulation 4 of the Notice Regulations requires the Secretary of State to give written notice to a person of any decision which is appealable under s.82(1) of the 2002 Act. There is no dispute that the 2011 decision is an appealable decision within the meaning of that section. Regulation 5 of the Notice Regulations sets out what must be contained in a notice under regulation 4. At the time of the 2011 decision, it provided that:

(1) A notice given under regulation 4(1) is to—

(a) include or be accompanied by a statement of the reasons for the decision to which it relates …

(3) Subject to paragraph (6), the notice given under regulation 4 shall also include, or be accompanied by, a statement which advises the person of—

…
(c) the grounds on which such an appeal may be brought; and

(d) the facilities available for advice and assistance in connection with such an appeal. …

(4) … the notice given under regulation 4 shall be accompanied by a notice of appeal which indicates the time limit for bringing the appeal, the address to which it should be sent or may be taken by hand and a fax number for service by fax….

47. The asylum decision did not set out any reasons for refusing the 2011 application to vary leave to remain, and nor did it satisfy any of the other requirements of Regulation 5 of the Notice Regulations insofar as the 2011 application is concerned. In particular, there was no reference to any right of appeal against the refusal to vary leave to remain. The consequence of failing to comply with these requirements was considered in R (E (Russia) v Home Secretary [2012] EWCA Civ 357, a case where an applicant was not told that he had an in-country right of appeal:

"39 … Whilst it is true, as Mitting J said in paragraph 20 of his judgment (paragraph 22 above), that the assertion in the Notice that the Appellant did not have an in-country right of appeal did not entirely deprive him of an effective right of appeal, it did deprive him of a valuable right: the right to pursue his appeal in-country, see paragraph 28(d) of MK (paragraph 29 above).Section 105(2) enables regulations to be made which provide that a notice of decision must state, not merely that there is a right to appeal, but also how that right may be exercised. (paragraph 15 above)

40 It is not surprising that a notice of decision under the Regulations must contain advice, not simply as to whether there is a right of appeal against the notice, but also as to whether the appeal can be brought in-country. The importance of the right to bring an appeal in-country is demonstrated by the fact that Parliament has prescribed in detail in section 92 of the 2002 Act the kinds of appeal which may be brought while the appellant is in the UK, and has made provision in section 94 for a certification process which removes that right where an appellant's claims are clearly unfounded (paragraph 19 above).

41 The importance of compliance with the notification requirements in paragraph (3) of regulation 5 is underlined by paragraphs (6) and (7) which provide for re-service of the notice containing the advice required by paragraph (3) in those cases where, initially, paragraph (3) need not be complied with. Against this statutory background, applying Lord Steyn's approach in Soneji (see paragraph 21 above), I consider that Parliament would have intended that a failure in a notice of decision to comply with the requirement to advise an appellant that he was entitled to an in-country right of appeal would render the notice invalid.

42 The Court's response to such invalidity would normally be to quash the notice, unless it was satisfied that there had been substantial compliance with the requirement: eg because the Appellant had been made aware by other correspondence from the Respondent that he did, in fact, have an in-country right of appeal, because the First-tier Tribunal had accepted an in-country appeal from the Appellant, or because he had been allowed to present his appeal in the UK having been permitted to re-enter the country to do so."

48. Although that analysis focused on a failure to advise of an in-country right of appeal, in my judgment the same would apply even more forcefully where there is a failure to comply with any of the requirements of Regulation 5 of the Notice Regulations or to identify any right of appeal at all. Accordingly, the notice would be invalid unless the Court was satisfied that there had otherwise been substantial compliance with the requirements. By this stage, there had not been substantial or indeed any significant compliance with the requirements as far as the 2011 decision was concerned. As such, the notice of the 2011 decision as contained in the asylum decision cannot be regarded as valid.

E. Ground 3 – Lawfulness of Detention.

(1) Was the detention unlawful?

49. If it is correct that the 2011 decision was at that stage without legal effect, then the extension of leave pending that decision (and any appeal against that decision) by operation of s.3C(2) of the 1971 Act would still be effective. That would mean that the Claimant still had a lawful basis to be in the UK as at 11 April 2014 and there would be no lawful basis for detaining him. The Defendant contends that the Claimant was ARE by the time of his detention and was aware of the 2011 decision. However, any exhaustion of his appeal rights could apply only in respect of the asylum claim; he had not even had valid notice of the 2011 decision let alone an opportunity to exercise any appeal rights against it. The fact that the Defendant believed that a valid decision had been taken in respect of the 2011 decision and that the Claimant's removal was imminent does not, in these circumstances, provide a sufficient basis for detention:

"66 … A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. Per Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12."

50. In the present case, for the reasons set out above, the Defendant was wrong to believe that there was no continuing leave to remain. There was therefore no statutory basis for the detention. It follows that the detention on 11 April 2014 was unlawful. The detention continued to be unlawful until the Claimant's release. There was no act during the period of detention that could be said to amount to a determination of the extension of leave, and the Defendant has not sought to argue otherwise.

(2) The assessment of damages

51. The Court is invited by both parties to assess the damages in the event that the detention is found to be unlawful. Whilst this is a task that would normally be reserved to the Queen's Bench Division, it is appropriate in my judgment to proceed to assessment directly because it avoids further delay, would save costs, and is a proportionate step having regard to the period of detention and the level of compensation claimed.
52. Ms Rowlands submitted that this is a case where an award of nominal damages would be appropriate on the basis that the Claimant's detention was as a result of a mere "technical error" which could quickly and easily have been remedied and that the Defendant could and would have detained the Claimant in any event. I was referred to the following passage from the judgment of Lord Dyson in R (Lumba):

"95 The question here is simply whether, on the hypothesis under consideration, the victims of false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied …, it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages." (Emphasis added).

53. In my judgment, there was no such inevitability of detention in the present case. 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 (see above at [49] and [50]). The situation was, therefore, quite unlike that in R (Lumba) where it was found that the appellants could lawfully have been detained in accordance with the published (and lawful) policy. The present case is not one where only nominal damages are due. I turn therefore to the assessment of damages.
54. The starting point in any assessment of damages for unlawful detention is the case of Thompson v Commissioner of Police [1998] 498, which was considered by the Court of Appeal in an immigration detention case, MK (Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 980 ("MK"):

"8 … There is now guidance in the cases as to appropriate levels of awards for false imprisonment. There are three general principles which should be born in mind: 1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant: see the leading case of Thompson v Commissioner of Police [1998] QB 498 at 515A and also the discussion at page 1060 in R v Governor of Brockhill Prison Ex Parte Evans [1999] QB 1043 ; 2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration: see Thompson at 516A. A global approach should be taken: see Evans 1060 E; 3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons: (i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance: Thompson 515 E-F.

9 In Thompson the court gave specific guidance (515 D-F) to the effect that in a "straightforward case of wrongful arrest and imprisonment" the starting point was likely to be about £500 for the first hour of loss of liberty and a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000. That case was of course decided more than ten years ago and, while not forgetting the imperative that damages should not be assessed mechanistically, some uplift to these starting points would plainly be appropriate to take account of inflation. Mr Singh for the respondent Secretary of State before us commends in particular the decision of Mr Kenneth Parker QC, as he then was, in Beecroft v SSHD [2008] EWHC Admin 3189 That is a helpful decision. It is very different on the facts from the case before us and it is right to say, as indeed Thompson itself makes clear, all these cases are fact-sensitive."

55. The period of unlawful detention in MK was 24 days and an award of basic damages of £12,500 was made plus an award of £5,000 by way of aggravated damages. There had not been any initial period of lawful detention in that case. The Claimant in the present case was detained for a period of 70 days and he seeks an award of compensation of £20,000 taking account of the tapering effect referred to in MK. This equates to about £285 per day. He does not contend, rightly in my judgment, that any aggravated or exemplary damages are due.
56. The Defendant referred to the following cases on the question of damages:

a. R (NAB) v Secretary of State for the Home Department [2011] EWHC 1191 ("R (NAB)"): In that case there was an award of £75 per day for unlawful detention of 82 days falling at the end of a lawful period of detention. Irwin J said as follows:

"15 In Muuse -v- Secretary of State [2009] EWHC 1886 (QB) John Leighton Williams QC, sitting as a Deputy High Court Judge, awarded £25000 in basic damages for approximately 126 days unlawful detention under the immigration legislation. However, it is necessary to read closely the facts of that case and to understand the enormous impact of detention on that detainee. It is also a case where the outrageous treatment offered to the detainee clearly induced fear and resentment at a very high level.

16 Equally in B -v- Secretary of State for the Home Department [2008] EWHC 3189 (Admin) , Kenneth Parker QC, sitting as a Deputy High Court Judge, awarded basic damages for unlawful detention over a period of about 6 months in the sum of £32000. Once again the behaviour in that case and the impact upon the detainee is of a different nature and extent to the facts here.

17 Closer to the facts in the instant case, it appears to me, is the case of R -v Governor of HMP Brockhill ex p Evans [1999] QB 1043 There a straightforward miscalculation of release date meant that a prisoner spent 59 additional days in prison at the end of her sentence. There was no illegality behind her entry into custody. The element of avoiding any disruption of ordinary life did not arise. She remained in familiar surroundings for too long and without realising until the end that her detention had been unlawful. All of those factors must have been reflected in the very much lower award, calculated at a rough daily rate, than in either of the two previous examples I have quoted.

18 What are the critical factors affecting this case? The unlawful detention carried no "first shock" and no disruption of an otherwise ordinary life in the community. By the time illegality arose, the Claimant had already sustained the effects of a long period of continued detention. I bear in mind that this did include some impact on his mental health, but there is no evidence that the additional 82 days of detention had any identifiable incremental impact in those terms. The unusual situation here was that the Claimant chose detention in the United Kingdom over freedom in Iran. For the reasons I have given that does not impact upon the illegality, however in my judgment it does mean that the appropriate level of damages must be very much lower than in most of the reported authorities and it seems to me should be markedly lower even than the appropriate compensation for a prisoner in the position of Ms Evans.

19 Doing the best I can I award the Claimant compensation of £75 per day, a total award of £6,150."

b. NS v Secretary of State for the Home Department [2014] CSIH 91, where the Inner House of the Court of Session upheld an award of approximately £82 per day for a period of unlawful detention following lawful detention."

57. The Defendant submits that any award should be at the lower end of the range and proposes a figure of about £75 per day (the same as in R (NAB)) which would result in a total of £5,250.
58. As emphasised in MK, the assessment of damages should be sensitive to the facts of each case and the degree of harm suffered by the Claimant. In the present case, the Claimant was detained on 11 April 2014 whilst reporting. This is not a case, therefore, of detention following a raid on a property conducted in front of loved ones or anything of that sort. The evidence from the Claimant as to his detention consists of the following extract from his statement in support of his claim:

"14 I maintain that had the Secretary of State not erred in treating me as an overstayer that I would never have been detained. This was a shock to have my life, liberty and freedom breached. My experience of detention was considerably stressful and for this reason I do request that I am compensated for what was unlawful detention"

59. No further evidence is adduced in support of any harm suffered. It is not suggested that there was any mistreatment or oppressive treatment during his detention. The Defendant invites me to take account of his previous convictions and that he was "therefore used to being detained by the authorities" in support of an award at the bottom of the scale. However, there is no evidence before me as to any prior periods of detention being for any period longer than necessary to effect an arrest and/or to charge him, and it does not seem appropriate to treat the Claimant's prior brushes with the law as having hardened him against any initial shock that he may experience upon being detained when reporting. That said, I accept that, taking account of all of the above, especially the limited evidence as to harm, this is not a case where the degree of harm suffered by the Claimant was particularly high. In my judgment, the degree of harm was in fact quite low although not quite so low as to warrant an award at the bottom of the scale.
60. Doing the best that I can, it is my judgment that an award of £10,500 is appropriate. The initial shock in this case would warrant, on Thompson principles, a starting point of about £3,500 (taking account of inflation) for the first 24 hours. Thereafter, it is appropriate to award a sum of £7,000 for the remaining period of detention in circumstances where the degree of harm was considerably less in my judgment than that suffered by, e.g. the claimant in MK (who was arrested in humiliating circumstances, was physically sick and had to endure an absence of any reasonable inquiry by the Secretary of State: see MK at [11] to [14]), but somewhat greater than in the case of R (NAB) (where the length of the detention at 80 days was comparable but followed a period of lawful detention). The total award equates to about £150 a day (or £100 a day if one discounts the element for the initial shock of detention). Whilst I recognise that one should avoid approaching awards mechanistically, it seems to me that the daily rate provides a useful guide in checking that the overall award is not out of step with other cases.

F. Ground 2 – Fresh claims

61. This issue is rendered academic given my findings above as to the continued leave to remain and the unlawfulness of the detention. The Claimant has in any event appealed against the 2011 decision which would suggest that there is de facto acceptance that he has had notice of the decision. The date of that notice would be not earlier than 15 April 2015, that being the date that the Defendant's Detailed Grounds of Resistance, attaching the notice, were served. That date is long after the detention which ended on 20 June 2014. Moreover, as the Claimant accepts, any appeal against the decision would entitle him to raise, once again, his human rights claims. There was some indication in the course of the hearing that the First-Tier Tribunal had in fact rejected the appeal as invalid. However, the Court was not shown the terms of the rejection or the grounds for it, and it is not appropriate to infer what those grounds might have been or that any further appeal to the Upper Tribunal is precluded.

G. Conclusion

62. For these reasons, it is my judgment that the Claimant's claim for judicial review in respect of Grounds 1 and 3 is allowed and that damages for unlawful detention in the sum of £10,500 are awarded.

Note 1   Of course, this is predicated on the second application having the effect of either withdrawing the first application or varying it. The Court of Appeal in JH did postulate a third possible outcome, namely that the second application neither withdraws nor varies the first. However, the Court of Appeal did not expand upon what that third possibility might involve or when it might arise and neither party argued for a third outcome here.    [Back]