England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 December 2022

Philip Mott KC :

1. The Claimants challenge the decisions of 27 September 2021 cancelling their leave to remain on the basis that they had admitted working in excess of 20 hours per week, in breach of the conditions of their leave. They also seek damages for unlawful detention. It is accepted on behalf of both Claimants that the claim for unlawful detention can only succeed if the challenge to the cancellation decisions succeeds.
2. It is agreed, following the Court of Appeal decision in Giri v Secretary of State for the Home Department [2016] 1 WLR 4418, that this is not a precedent fact case, in which I must come to an independent decision on the underlying facts. It is a standard judicial review challenge to be decided on ordinary Wednesbury principles.
3. Each Claimant was in the UK on a student visa which restricted his work to 20 hours per week in term time. Fawad Anwar was studying for an MSc in Engineering Geology at the University of Portsmouth. He completed his studies on 24 September 2021 and was awarded an MSc on 24 November 2021. Rahim Shah was studying for an MSc in International Business and Management. It now appears that he may have withdrawn from his studies on 4 April 2021, but his arrest and the cancellation of his visa was on the basis that he was still a student and had admitted working in excess of his permitted hours. It was agreed that I should decide this challenge on the assumption that he was still a student at the material time. No question therefore arises as to the application of section 31(2A) of the Senior Courts Act 1981.
4. Put shortly, the Defendant relies on the following information known at the time to the decision makers:

i) Fawad Anwar admitted that he had been working at Viewpoint in Gosport for four months, on 7 days per week and 12 hours per day. That is a total of 84 hours per week, far in excess of his permitted hours.

ii) Rahim Shah initially said he was a student and did not work, and was due to restart his course the following day (28 September). Then he admitted that he had worked two 12 hour shifts the previous week, which amounts to 24 hours, slightly in excess of his permitted hours. He also admitted that he was currently in term time. Later still he admitted that he was due to work every day that week. In addition he was found with £730 in cash which, on the basis of an admitted weekly cash payment of £9 per hour, would suggest work the previous week in excess of 81 hours.

iii) Information was received from a third party, Bilal Majeed, who was in a car outside the property telephoning one of the residents there. He said he was waiting to take Rahim Shah and another resident to work, and that they were due on shift each day for 12 hours.

5. That evidence, if credible, is in my judgment more than sufficient to justify the arrest of both men and the cancellation of their leave to remain.
6. The original Grounds in both cases merely claim that "the failure to disclose information held against him prior to cancelling his leave was procedurally unlawful and/or contaminates the lawfulness of the decision under challenge". At paragraph 12 the Claimants relied on a Court of Appeal case of Wahid v ECO [2021] EWCA Civ 346, at [32], but this case does not appear in the Bundle of Authorities and is no longer relied upon by the Claimants. This is not surprising as Wahid was an appeal against a refusal of permission, and the judgment merely states that "it is arguable that, where an ECO harbours suspicions of dishonesty, procedural fairness requires the applicant to have the opportunity to respond". That is part of a different line of authority relating to drawing inferences of dishonesty from primary facts, and the need to give the applicant the opportunity to deal with that inference.
7. Subsequently, after disclosure of evidence by the Defendant, the Claimants served an application to amend their Grounds by substitution of new and extensive criticisms of the evidence relied on by the Defendant. They argue in each case that "the Defendant's evidence is contaminated, unreliable and the conclusion that he had worked in excess of the hours permitted by the condition of his leave was irrational as was the cancellation of the same on 27 September 2021".
8. Permission was granted by HHJ Coe KC on 10 May 2022 at an oral permission hearing on these amended grounds. That has been the basis on which this substantive hearing has proceeded. In due course I shall need to examine each of the criticisms made by the Claimants.

The evidence

9. Seven Immigration Officers were involved in a visit to premises in the Portsmouth area at around 6.30 am on 27 September 2021. It was a planned visit, acting under a warrant issued by a magistrate. The application for the warrant sets out intelligence that a man who was a security contractor based in Southampton was suspected of employing illegal immigrants who work 7 days per week using other people's National Insurance numbers. One of the premises was Viewpoint in Gosport, which was a multi-storey retirement complex with vulnerable people on the premises. Money laundering was also suspected. One of the security contractors identified was APS Security.
10. The senior officer, or officer in the case, was Phillipa Richards. William Sumner dealt with Rahim Shah. Michael Parker-Travers dealt with Fawad Anwar. Timothy Kemp spoke to Bilal Majeed. The other officers, Simon De Celis, Fiona Smythe, and Jodie Dedman, dealt with others found at the premises.
11. Evidence in relation to the visit comes from a number of sources. Broadly, the relevant evidence falls into three categories. First, there are entries in the digital pocket notebook of each officer, recorded using a PRONTO (police reporting and notebook organiser) enabled mobile phone. These are referred to as the PRONTO entries. Secondly, there are a number of minutes prepared by an officer later on the same day, or afterwards. And thirdly, each officer has produced a statement which has been served in these proceedings.
12. During the course of these proceedings the Claimants produced documents purporting to be confirmation from their employers that they did not work more than 20 hours per week. In response to this, the Defendant has provided statements from another officer, Timothy Niblock, who was tasked with checking the letters. There is a dispute about the admissibility of this evidence.
13. The Defendant's evidence of the visit in relation to Rahim Shah is as follows:

i) IO Sumner encountered Mr Shah in the premises at 06:38. Mr Shah initially stated that he was a student and didn't work. He was due to re-start his course at Portsmouth University the following day.

ii) IO Sumner was then informed by IO Kemp that another resident had said Mr Shah was working.

iii) At 06:45 IO Sumner started an interview with Mr Shah. Apart from the initial questions, when Mr Shah said he worked for 20 hours per week, and had worked the previous week on Monday and Thursday, the interview was conducted through a Pashto interpreter. The following exchange took place:

Where do you work? – Basingstoke

What hours did you work last week? – Monday 8-8 and Thursday 8-8

That's not 20 hours that's 24 – Oh no I work 20

Are you lying? – Yes sorry

Can you show me evidence of your uni starting tomorrow? – I will get the laptop up

When did you start? – I started this month

So you are currently in term time? – Yes

Do you have any pay slips? – No we get paid cash in hand

How much do you get paid an hour? - £9 an hour

How many hours do you actually do a week? – Always 2 days

Do you get paid travel? – No

How do you get to Basingstoke? – A friend sometimes train sometimes car

Do you get paid monthly or weekly? – Weekly

Who is [in] charge of you? – Zahir is contractor

What company is he for? – Brites

Do you know Zahir's surname? – No

Do you have a mobile number for him – [redacted]

Are you due to work today? – Yes starting at 8

What time are you meant to finish today? – 8

What other days are you going to work this week? – Today, and then they will tell me of other days

Do you have a passport? – Yes

My colleague has spoken to Bilal who states that he is [sc. you are] due to work every day this week – Yes sorry I am

So are you truthfully studying? – Yes I do

How do you find time to study? – I will start slowing down with work once started

Do you not have to go in? – No it's all online

How do you find time to do it? – It was holidays I didn't study for 4 months

But it is term time now? – Yes

iv) At 07:48 Mr Shah was invited to sign this record and did so. Prior to this, at 07:00, he was arrested and given what is called the "administrative caution". This is not like a police caution, advising a suspect that he is not obliged to say anything. It merely informed Mr Shah that he was being arrested because he was suspected of having breached the condition of his leave. He was also asked about any mitigating circumstances which might lead to his leave not being cancelled, and was offered voluntary departure from the UK, which he declined because he wanted to complete his master's degree here.

v) Mr Shah was found to have a bag containing £730 in cash. If he had worked every day for a week, doing 12 hour shifts, that would have totalled 84 hours. At £9 per hour, his weekly cash in hand would have been £756.

vi) In his minute produced the same day at 13:57, IO Sumner recorded his views as follows:

"Throughout the large part of the interview SHAH wasn't credible and made me feel that he couldn't be believed. Moreover, he alleged his laptop charger had broken and therefore couldn't supply evidence that he was working towards completing his masters degree. In addition to this, he was visibly nervous throughout the initial interviews and was shaking lots. In the end I sat him down and he owned up a lot to his immigration offence and helped comply with the wider investigation. SHAH was advised to comply from the get-go in future when speaking to law enforcement agencies."

14. Rahim Shah provided a witness statement dated 22 November 2021 in which he states:

i) The contents of the interview provided by the Defendant's disclosure are not verbatim. "There were many more questions asked and my answers were much more detailed … I did not say that I was working over 20 hours. I can categorically confirm that I was not working more than 20 hours. I had only started working in September 2021."

ii) Complete chunks of questions and answers are not in the interview notes.

iii) The officers were very rude and did everything with a lot of high-handedness. It was very stressful and scary.

iv) No one by the name of Bilal was there [in the premises].

v) He said his laptop charger had been misplaced, not broken.

15. At some stage the Claimants' solicitors disclosed an undated letter on "Brites Security Solutions" headed paper which stated that Mr Shah worked a maximum of 20 hours per week and no more. It purported to come from Emily Louise Price, Human Resources Manager.
16. IO Niblock tried to check this in May and June 2022. He could not find anyone at Brites who had ever heard of Emily Louise Price. Eventually he received an email on 7 June 2022 from someone who claimed to be the HR administrator at Brites, giving his name only as Abdul, who said that the letter was not authorised by the company, and "Emily Louise Prince [sic] has never worked with us".
17. The Defendant's evidence of the visit in relation to Fawad Anwar is as follows:

i) IO Parker-Travers encountered Mr Anwar at 08:09 when he returned to the premises. He said he had just returned home from a night shift. The following conversation took place:

Where are you working? – Viewpoint in Gosport

How long have you been working here? – For 4 months

What is your job role / what are your duties? – Fire Marshall and do 1 patrol an hour checking for any fires

What days / hours do you work each week? – I work 7 days a week 12 hours per day. 1900 to 0700

Who gave you this job (name and role in business)? – Someone from Uni told me about the job. AP Security employ me

Who tells you what tasks / duties to do each day? – AP security control the job visit once a week to check everything is ok

How are you paid (money, accommodation, food)? – Cash in hand

If money, how much and how do you receive it? - £3,000 paid into my bank account per month

ii) The interview record was signed by Mr Anwar at 09:09 that day, with the declaration "I confirm that I have understood all the questions and that the details are true and correct". By that time he had been arrested at 08:25 and given the administrative caution. He had been asked about mitigating circumstances and offered voluntary departure. Initially he declined, saying that he wanted to continue his studies, but later he changed his mind and booked a flight from Heathrow to Islamabad on 1 October 2021. For this reason his passport was returned to him and he was allowed to leave.

18. Fawad Anwar provided a witness statement dated 28 November 2021 in which he states:

i) The contents of the interview provided by the Defendant's disclosure are not verbatim. "There were many more questions asked and my answers were much more detailed. All the positive answers provided have just completely been excluded. The notes seem to be selective and mentioned in a manner to give the impression that I was working full time for a long time. I was not."

ii) "I did not work over 20 hours and had only just started working full time from once my course finished just 2-3 days before I was detained. This can be confirmed from my employer."

iii) "They have completely twisted my answers in these interview notes. Interestingly, they have mentioned wrong name for my employer as well in the interview notes."

iv) The officers were very rude and did everything with a lot of high-handedness.

v) No one by the name of Bilal was living at that address.

19. At some stage the Claimants' solicitors disclosed an undated letter on "Kwik" headed paper which stated that Mr Anwar never exceeded his permitted 20 hours per week before he started working full time on 24 September 2021. It purported to come from Bob Walker, Human Resources Manager.
20. IO Niblock tried to check this in May and June 2022. He could find no website or internet presence for Kwik. Companies House showed a sole director, Hina Khan, who resigned the day after his attempt to contact her. On 20 June 2022 IO Niblock received an email purporting to confirm that the Bob Walker letter was genuine, but he had given the wrong contact number. The email was from Miss Raja Elena Romana, the newly appointed sole director of Kwik FM Services Ltd. Companies House records showed her as a Romanian national. Home Office records showed a person called Elena Raja, who was a Romanian with the same date of birth, had applied for EU settled status which was refused on 7 October 2019 and she had not reapplied.

The Claimants' criticisms of the Defendant's evidence

21. A number of criticisms have been made of the decisions under challenge. I deal with those set out in the Claimants' skeleton argument and developed in argument. Initially Mr Gajjar said that he would only need to establish any one challenge to succeed. That rather extreme stance was moderated in argument, and he accepted that the criticisms, whether individual or cumulative, would have to be material and substantial, so as to undermine the credibility of the decisions.

The other two migrants

22. Apart from these two Claimants, two other migrants with leave to remain as students were arrested and had their leave cancelled. They too brought judicial review proceedings, but these were settled with the Defendant agreeing to reconsider their decisions. In addition these migrants have been paid £15,750 each in damages.
23. These Claimants do not argue that there is a right to equal or consistent treatment. Insofar as Mr Jamali, making closing submissions for the Claimants, appeared to suggest otherwise I reject those submissions. I accept that the law is as stated by the Court of Appeal in Chirairo v Secretary of State for the Home Department [2016] EWCA Civ 77, especially at paragraph [25]. Different considerations may apply in planning law (see Davison v Elmbridge Borough Council [2019] EWHC 1409). And there is a principle in immigration law that where a second decision is taken, the starting point should be the original decision (the 'Devaseelan' principle, see for example Secretary of State for the Home Department v BK (Afghanistan) [2019] EWCA Civ 1358). Neither of those lines of authority assist the Claimants here.
24. Mr Gajjar submitted that the different treatment of the other two migrants was sufficient to undermine the credibility of the evidence in relation to these two Claimants. If admissions in materially identical cases with the same team of officers were not considered sufficient to uphold the decisions, that deals a significant blow to the strength of the Defendant's position in this case.
25. I reject that submission for a number of reasons:

i) The initial decisions were the same. All four migrants had their leave cancelled. So the initial decision makers were consistent.

ii) Decisions taken later by members of the Government Legal Department dealing with separate judicial review challenges cannot be used to undermine the evidence before me. It is my assessment of the evidence which matters, not theirs.

iii) There may be many reasons why different cases are dealt with in different ways. Sometimes it reflects the fact that a different person is making the decision. Sometimes it turns on small but significant differences in the evidence. Mr Harland, without waiving privilege, could point me to some differences in the details of the admissions made by the other two migrants. In some cases there may be other reasons in play, such as the extent to which a person has cooperated and provided assistance to the authorities. I have no evidence that this happened here, but if it did it would be privileged. The possibility serves to show that it is not safe to draw the conclusions suggested by the Claimants.

Failure to provide evidence from IO Dedman and IO Smythe

26. Statements have now been served from these officers, dated 27 January 2022. They add little or nothing to the case involving these two Claimants. The point is no longer pursued.

Failing to provide a transcript of the interviews

27. Although some photographs were clearly taken at the time of the visit, the officers did not have body-worn video, and no recording was made of the interviews. They were contemporaneously logged on the PRONTO system, and the record was offered to each Claimant to sign. There is nothing improper about that process.
28. It is right that each Claimant says in his statement that many others things were discussed, but it is notable that there is no specific denial of any of the answers that are recorded. At best there is a general assertion that neither admitted working more than 20 hours per week during term time. Yet each was arrested, on the basis that he had breached the condition of his leave by working excessive hours. Each must have realised the seriousness of the situation because there was discussion of voluntary departure, and Mr Anwar actually booked and paid for a flight back to Pakistan.
29. I can see nothing in the evidence to suggest that the officers were not entitled to treat the admissions as reliable, or that the admissions as recorded are distorted.

Manner of the attending officers

30. Both Claimants say that the officers were rude and high-handed. Mr Shah says that he was stressed and scared. To some extent that reaction is unsurprising in a dawn raid by seven immigration officers. They arrive with the authority of a warrant, give orders to those present, and are not asking permission of the residents to act as they do. But there is nothing beyond this to suggest that the officers acted improperly. The assertions by the Claimants are bare and unparticularised.
31. I also note from the minute prepared the same day by IO Sumner that he observed the state Mr Shah was in and got him to sit down and gradually tell the full story. Mr Anwar initially declined the offer of voluntary departure, but later changed his mind. He was allowed to book a flight and, because of the limited time available before departure, allowed to retain his passport. None of that suggests a manner which crossed the threshold to become unlawful, or was such as to make the admissions obviously unreliable.

Failure to issue cautions in line with guidance

32. There is an element of inconsistency in this allegation. Whilst maintaining that the officers never had enough evidence to warrant cancellation of the Claimants' leave, it is nevertheless asserted that cautions should have been given immediately on entry as this was an intelligence-led visit which gave rise to reasonable suspicion prior to entry. As a result, it is submitted, the Claimants' admissions (whatever they were) were made without having been properly made aware of their rights.
33. I do not accept that the Claimants should have been arrested immediately on entry by the officers. The intelligence related to the premises generally, not to named individuals there. Mr Shah initially said that he was a student and not working. It was not until contradictory information came from another resident that he was asked further questions and arrest was justified.
34. In any event, there is a misunderstanding about what the "administrative caution" consisted of. As noted above, it is not like a police caution. It does not notify a person of the right to remain silent. Mr Gajjar accepts that the PACE Codes of Conduct covering police action do not apply here.
35. By the time the Claimants were asked to sign the PRONTO notes they cannot have failed to be aware of the seriousness of the position they found themselves in, or the significance of the admissions they are recorded as having made.

Failure to contact the Claimants' employers

36. The Claimants' submission is that the officers should have contacted the named employers before making their decisions on the morning of 27 September 2021. There is no alternative submission that secondary checks should have been made promptly thereafter, leading to the withdrawal of those decisions.
37. In the light of the very clear admissions made by each Claimant, I reject this primary submission. There was no need to make contact with the employers before cancelling the Claimants' leave.
38. Since there is no alternative submission, the letters purporting to be from the Claimants' employers cannot change the position. They were not available to the officers making the decisions on 27 September 2021. Neither was the information later obtained by IO Niblock. To that extent, both pieces of evidence can simply be ignored.
39. The Claimants answer to this is that the letters show what information would have been forthcoming if inquiries had been made that morning. At most this would be true of the Brites letter in relation to Mr Shah. Mr Anwar had identified his employers as AP Security, not Kwik. But in any event, if the letters are admissible for this purpose, the results of IO Niblock's inquiries must also be admissible. They show that the supposed employers are of doubtful reliability, which may not be very surprising if they were engaged in wholesale employment of migrants in breach of their conditions of entry.
40. What is noticeable from the employers' letters alone is that neither gives any details of the employment, nor provides any documentary evidence in support such as payslips or PAYE or National Insurance records. Even now, none of this has been produced by either Claimant.
41. My conclusion is that, even if further inquiries had been made on the morning of the arrests, nothing would have been provided to undermine the clear admissions made by each of these Claimants.

Officer Sumner's evidence

42. The Claimants submit that there is an inconsistency between the interview record in the PRONTO notes (set out above) and the minute prepared by IO Sumner later that day. In particular, the minute records "While remaining certain he was only working maximum 24 hours per week", whereas the interview notes show that Mr Shah at that stage insisted that he worked for only 20 hours per week.
43. The minute may not be perfectly expressed, but there is no stark inconsistency. The distinction being drawn in the minute is not between 20 and 24 hours per week, but between either of those figures and full time working which would amount to about 84 hours per week. The latter is what others were suggesting, and what was then put to Mr Shah and he agreed with.

Presence of an interpreter

44. It is said that there is a discrepancy as to whether an interpreter was used. The PRONTO notes suggest that one was involved fairly on, through the Big Word service. I understand that this is a physical interpreter, not an automatic translating service, but the interpreter would have been remotely located, not at the premises.
45. If Mr Shah wanted to say that he did not understand the questions, needed an interpreter, and none was provided, he could have included that in his witness statement. Looking for minor and, it appears, illusory inconsistencies in the documents disclosed by the Defendant is not enough to undermine the lawfulness of admissions obtained and relied upon.

IO Phillipa Richards' evidence

46. Her statement is dated 2 October 2021, and is attacked as not being contemporaneous. The reality is that this statement draws on the contemporaneous records, and in any event is of little significance in relation to these two Claimants.
47. It is said that there is a discrepancy between her evidence and that of other officers about whether Mr Anwar accepted the offer of voluntary departure. That criticism ignores the fact that Mr Anwar changed his mind. So at one point he declined the offer of voluntary departure, and later he accepted it. That deals with any apparent inconsistency.

Statements of truth

48. Many of the statements disclosed by the Defendant are on forms designed for criminal proceedings, with a statement of truth taken from section 9 of the Criminal Justice Act 1967. This is different from the statement of truth provided by CPR PD 22.
49. But these are not witness statements produced for the present proceedings. They are statements disclosed as documents. There is nothing wrong with them being in the format for criminal proceedings, as that is how they were originally prepared.
50. In any event, the criminal statement of truth is, if anything, stronger than the civil one. There is nothing in this point.

Lack of evidence from Bilal

51. The Claimants seem to have misunderstood the position of Bilal Majeed. He was not a resident of the premises searched. He was in a car outside the premises, waiting to collect Mr Shah and another to go to work. He may also have brought Mr Anwar back from work.
52. The relevance of the conversation with Bilal is that it suggested Mr Shah had not been telling the truth. That is why he was questioned further. In response to those questions he changed his account, and admitted working excessive hours. The decision to cancel his leave was based on that admission, not on any evidence from Bilal. There was no obligation to try to obtain a full witness statement from Bilal.

The Defendant's grant of a fee waiver for Mr Anwar

53. On 7 April 2022 Mr Anwar was granted a fee waiver on the basis that he did not have sufficient funds in his account to pay the Home Office's fee and Immigration Health Charge. That, it is said, is inconsistent with his having been paid £3,000 per month for four months in 2021.
54. Quite apart from the fact that the fee waiver decision came from a different department, there is no reason to conclude that an assessment of Mr Anwar's financial position in April 2022 has any bearing on his cash receipts between June and September 2021. It is not suggested that he continued to work and earn such money after 27 September 2021. Even if he had paid the money into a bank account (for which he said he had no statements) he might well have spent the money by April 2022.

Overall assessment of evidence

55. Having dealt with the individual criticisms of the Defendant's evidence, I should stand back and look at the evidence as a whole.
56. I was referred to Upper Tribunal authorities which emphasise that questioning must be very carefully conducted, questions must be clear and precise and properly prepared. This will especially be so when dealing with someone for whom English is not their first language. It is a facet of the need for fairness. Unfair questioning will amount to a procedural error which may make a decision unlawful. I note, in particular, what is said in Mushtaq v Entry Clearance Officer, Islamabad [2015] UKUT 00224 (IAC), Anjum v Entry Clearance Officer, Islamabad [2017] UKUT 00406 (IAC), and Ashrafuzzaman v Entry Clearance Officer [2022] UKUT 133 (IAC).
57. Making all allowances for the language difficulties, and the stress of the 'dawn raid', the PRONTO records show careful questioning and apparently unambiguous admissions. Mr Shah had an interpreter. Mr Anwar said he did not need one.
58. Whether or not the admissions are in fact true is not the issue before me. Whether they were a safe and proper basis for the decisions to cancel the Claimants' leave is the issue. I am perfectly satisfied that they were, and these decisions were lawful.

Conclusion

59. For these reasons the challenges to the decisions of 27 September 2021 cancelling the Claimants' student visas must fail. It follows that the detention thereafter (which in the case of Mr Anwar was only for about two hours while the officers were at the premises) cannot be impugned.
60. Accordingly the challenges by way of judicial review must fail, and the claims are dismissed.
61. I will ask the parties to agree a form of order, and costs if possible. If there are any remaining ancillary matters, they should be dealt with on written submissions.