Case No: JR- 2024-LON-002223
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
2 June 2025
Before:
UPPER TRIBUNAL JUDGE MANDALIA
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Between:
THE KING
on the application of
DUFIE AGYEI
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr J Gajjar
(instructed by SAJ Legal Solicitors ), for the applicant
Mr M Biggs
(instructed by the Government Legal Department) for the respondent
Hearing date: 23 December 2024
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J U D G M E N T
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Judge Mandalia
1. The applicant challenges the respondent's decision of 2 June 2023 to cancel permission to enter upon her arrival in the UK on 2 June 2023. That decision was maintained by the respondent following Administrative Review on 18 July 2023.
2. Permission to claim Judicial Review was granted by Judge O'Connor sitting as a Deputy Judge of the High Court on two grounds on 18 June 2024. In summary, the applicant claims:
i) The respondent's decision to interview and/or to continue to interview the applicant on not one but several occasions, which included eliciting a second administrative review waiver from her (later withdrawn by the respondent), and relying on the answers she gave during the course of her interview to cancel her leave by alleging both a change of circumstances and the provision of false documents/information was procedurally unfair and/or improper: and
ii) The respondent's decision to rely on paragraph 9.7.3(a) of the Immigration Rules, making a particularly serious allegation of false documents being relied upon, and the change of circumstances provision in paragraph 9.20.1 of the Immigration Rules is vitiated by irrationality on account of the decision maker seemingly failing to consider and factor in the applicant's vulnerability.
3. Permission to claim judicial review of the respondent's decision to detain the applicant and to pursue a claim that the applicant was unlawfully detained, was refused.
Background
5. The applicant arrived at Heathrow Airport on 2 June 2023 on a flight from Accra. She was questioned several times and a decision was made to cancel the permission to enter previously granted to her. The sequence of events on 2 June 2024 is set out in the skeleton argument settled by Mr Biggs and is not contested by Mr Gajjar. As far as is material:
"... I am satisfied that there has been a change in your circumstances and that you have used false representations to obtain your dependant visa. This is because in further interview, you admitted that your marriage to Kwame Darko Frimpong is not genuine. You further stated that Mr Kwame Darko Frimpong is in fact your aunt's husband's family member and not your husband. Also, you admitted that the purpose of the marriage was to facilitate your entry to the United Kingdom.
During your visa application in April 2023 you listed Kwame Darko Frimpong as your spouse, stating that you have been married since September 2022. I am satisfied that had the entry clearance officer been aware of the issues listed above, then you would not have been issued with a valid dependant partner visa to enter the United Kingdom.
Considering your admission, I am satisfied that false documentation was used for your visa application to the United Kingdom.
I am therefore cancelling your permission to enter in accordance with paragraph 9.7.3(a) and paragraph 9.20 of part 9 of the Immigration Rules and you are therefore refused leave to enter the United Kingdom..."
"...On the 2 June 2023 you sought permission to enter the United Kingdom (UK) as the dependant of Mr Kwame Darko Frimpong, on arrival you presented a dependant visa, valid from 24 May 2023 until 14 October 2024. Mr Frimpong is currently in the UK as a skilled worker having arrived In October 2022.
During further interview you stated clearly that Mr Kwame Darko Frimpong is your aunt's husbands' family member and not your husband. Also, you admitted to lying on your visa application form, and that the purpose of the marriage was to facilitate your entry to the United Kingdom to allow you to work here.
In your administrative review, you have provided a psychiatric report, the report details your background in Ghana and confirms that you are not receiving any medical treatment far any perceived mental health conditions, Relevant to the refusal decision, the report suggested that you struggled with thoughts and concentration and would have presented as vulnerable on arrival at the border. At the beginning and end of the interview you were asked if you were fit and well and happy to be interviewed, to which you replied that you were. At no point during the interview did you request a break or suggest that you could not continue. If the officers had, at any point during the interview, considered you were not in a fit state to continue you would have been given a break. After consideration of the further interview notes and contemporaneous minutes, you came across clearly and succinctly and did not present yourself as someone who could not understand what was being asked of you.
You raised that you were vulnerable and should have been considered as such, during your detention and further examination with Border Force it was identified that you were someone who could be considered as vulnerable therefore you were interviewed by officers with specialised training in identifying, assessing and supporting victims of vulnerability such as. but not limited to, exploitation and trafficking, you were offered assistance and support based on the suggestion that you may be a vulnerable person, you declined his assistance.
In your grounds for administrative review, you have included various procedural and wider issues that are not within our remit to consider, quite simply, administrative review will consider whether an eligible decision is wrong because of a case working error and, if it is considered to be wrong, the decision will be withdrawn or amended as set out in paragraph AR2.2 of Appendix AR, On this occasion, the administrative review of your case concluded that the decision to refuse you entry to the United Kingdom and cancel your entry clearance was correct. By your own admission, you told the interviewing Border Force Officer that your marriage was not genuine and only entered into to obtain the necessary paperwork to support your visa application, This admission can only have one result and the officer was entirely correct to reach the conclusion that false representations were employed to obtain this visa and I therefore, cannot conclude that there has been a case working error made in coming to his decision.
Should you have any questions or procedural complaints about your experience on arrival in the United Kingdom, these need to be directed to the port of entry.
After consideration and for the points noted above, I do not consider any case working error to have occurred. I am satisfied that your refusal due to a change of circumstance to be correct and false representation to be correct. Your refusal under paragraph 9-20.1 and 97.3(a) of Part 9 of the Immigration Rules has been maintained.
..."
The Grounds for Review
6. Although set out as two grounds for review in the 'Grounds of Review' there is an overlap. In summary the applicant claims the respondent's decision to interview / continue to interview the applicant on several occasions, including eliciting a second administrative review waiver from her (later withdrawn by the respondent), and relying on the answers she gave during the course of her interview to cancel her leave by alleging both a change of circumstances (paragraph 9.20.1) and the provision of false documents / information (paragraph 9.7.3(a) was procedurally unfair and or improper. The applicant refers to the presentation of the applicant set out in the report of Dr Izaz Ul Haq and the observation made by Dr Haq that it should have been very obvious to the Officers that the applicant was a vulnerable person and therefore "should have been provided with all the necessary help". The applicant claims that expecting a vulnerable person to recognise that they are vulnerable or to flag their vulnerability is perverse and the respondent cannot sensibly rely on a positive self-declaration by an individual to the effect they are fit and well, without conducting her own assessment. The applicant claims the respondent should not have proceeded to interview the applicant in the absence of an appropriate adult or should have re-interviewed her in the presence of an appropriate adult before reaching a final decision. The applicant claims the decision to rely on paragraph 9.7.3(a), a particularly serious allegation, and paragraph 9.20.1 of the immigration rules, was irrational. The applicant claims that if it was open to respondent to cancel the applicant's leave to enter on 2 June 2023, the decision to maintain that decision following Administrative Review was perverse in light of the matters set out in the report of Dr Haq.
The Legal Framework
7. The relevant legal framework is set out in the skeleton argument filed and served by the respondent, settled by Mr Biggs.
8. Section 3 of the Immigration Act 1971 ("the 1971 Act") sets out the general provisions for regulation and control. As far as those with limited leave to enter or remain are concerned, section 3(3) provides:
"(3) In the case of a limited leave to enter or remain in the United Kingdom,-”
(a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; and
...."
9. Paragraph 2 of Schedule 2 of the Immigration Act 1971 (the "1971 Act"), as in force on 2 June 2023 provides as far as is relevant:
2. (1) An immigration officer may examine any persons within sub-paragraph (1A) for the purpose of determining-”
(a) whether any of them is or is not a British citizen; and
(b) whether, if he is not, he may or may not enter the United Kingdom without leave;
(c) whether, if he may not-”
(i) he has been given leave which is still in force,
(ii) he should be given leave and for what period or on what conditions (if any), or
(iii) he should be refused leave; and
(d) whether, if he has been given leave which is still in force, his leave should be curtailed.
(1A) The persons are-”
(a) any person who has arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom);
The Immigration Rules
10. Section 3(2) of the 1971 Act confers a power and duty on the respondent to promulgate rules as to the practice to be followed in the administration of the powers of immigration control under the 1971 Act.
11. Paragraph 9.7.3 of the Immigration Rules provides
"False representations, etc. grounds
...
9.7.3. Entry clearance or permission held by a person may be cancelled where, in relation to an application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application:
(a) false representations were made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the Applicant's knowledge); or
(b) relevant facts were not disclosed."
12. Paragraph 9.20.1 of the Immigration Rules provides:
"Change of circumstances or purpose grounds
9.20.1. Entry clearance or permission held by a person may be cancelled where there has been such a change in circumstances since the entry clearance or permission was granted that it should be cancelled."
Decision
13. On behalf of the applicant Mr Gajjar submits that when the applicant was interviewed on 2 June 2023 by BFO Mahmood the applicant said (Q.22) that she would be staying with her husband. Mr Gajjar submits matters took a turn later in the interview when the applicant was asked about a 'crib sheet' that she was found to have with her a list of 'interview questions'. Mr Gajjar accepts that although a copy of the 'crib sheet' is not in the papers before me, the applicant does not dispute that she had a document with information regarding interview questions and answers recorded on it.
14. Mr Gajjar submits the record of the applicant's encounter with the BFO at 07:00 hrs on 2 June 2023 records that the applicant claimed to have no medical conditions and no learning difficulties. However the Officer noted the applicant came across as very timid, shy and generally showed some concerning indicators, and that she wasn't fully aware of her surroundings. The 'case summary' prepared by BFO Nila Patel on 14 June 2023 records that on 2 June 2023, the applicant referred to her marriage and it was recorded that 'concerns were raised as the [applicant] appeared to be younger and behavioural indicators were raised." Mr Gajjar submits the applicant's presentation as recorded in the notes is at odds with what is said by the respondent in the Administrative Review decision; "After consideration of the further interview notes and contemporaneous minutes, you came across clearly and succinctly and did not present yourself as someone who could not understand what was being asked of you." Mr Gajjar submits that by the time of the Administrative Review the respondent had the medical evidence and an opportunity to consider all the evidence in the round rather than focus upon what happened in the immediate aftermath of the applicant's arrival in the UK.
15. The applicant accepts she did not disclose any concerns about her health, but the reliance placed upon a self-declaration by a person that has a 'mental health condition' is, Mr Gajjar submits, unsafe and on Review the observations made by Dr Haq should prevail. Mr Gajjar accepts that Dr Haq did not have any of the applicant's relevant medical history or records available and that his assessment of the applicant was conducted by video link (sections 1.3 and 1.4). Dr Haq noted, at [2.5] that during the course of his assessment most questions had to be repeated multiple times, and if a leading question was asked, the applicant would agree without giving it much thought. In section 3 of the report, Dr Haq notes the applicant struggled to speak openly and needed constant reassurance from her aunt. She looked flat and emotionless. In section 6 of his report Dr Haq expresses his clinical opinion that the applicant has suffered from depression in the context of unresolved and prolonged grief as a result of her mother's death about 8 years ago. He is of the opinion that the applicant's condition has most likely caused a gradual deterioration in her mental state and overall functioning over many years. It is said that the applicant clearly struggled with her thoughts and concentration. She struggled to give clear answers and demonstrated retardation of her thought processes, difficulties in registering information and forming a clear response, as is common in people with major depression. Dr Haq noted the applicant struggled to communicate when she was in the comfort of her families home and said that if she presented anything like that when questioned on arrival, it should have been obvious to the Officers that she was a vulnerable person "and therefore should have been provided with all the necessary help".
16. Mr Gajjar submits that in her witness statement Rabbiya Chowdhry confirms that there is a Port Medical Inspector ("PMI") at Heathrow that can provide mental health assessments to passengers. No referral was made to the PMI and no appropriate adult was present. Mr Gajjar also submits that Officer Chowdhury confirms Mr Frimpong was contacted at 23:00hrs on 2 June 2023 and he confirmed the applicant is his wife and that the applicant would go and stay with him. There was no further attempt to contact Mr Frimpong before a decision was made and the Officers should have asked him about the claim made by the applicant that their relationship was not a genuine one.
17. Mr Gajjar submits I cannot be satisfied that the respondent would have reached the decision to cancel the permission to enter on 2 June 2023 and to maintain that decision following Administrative Review if the respondent had proper regard to all the circumstances, and in particular, the matters set out in the report of Dr Haq. The respondent's failure to engage with the report of Dr Haq is material.
18. I am satisfied that there was no procedural unfairness or improper conduct in reaching the decision to cancel the permission to enter for the reasons set out in the 'Notice of Cancellation of Leave to Enter' served on 2 June 2023. I have already set out at paragraph [5] above the timeline of events on 2 and 3 June 2023 following the applicant's arrival in the UK. The decision of BFO Notta to interview the applicant on her arrival was lawful and permitted by the statutory framework set out in the 1971 Act. I have the contemporaneous notes of the Officers that the applicant had interactions with, and an overall case summary prepared by BFO Patel on 14 June 2023. I have also been provided with witness statements by BFO Sophia Mahmood and BFO Chowdhry.
19. It is perhaps unsurprising that BFO Notta had concerns regarding the applicant's presentation on arrival. The Officer tried to speak to Mr Frimpong but was unable to do so. The applicant provided Mr Frimpong's date of birth which was at odds with her claim that he is 25 years old. The applicant claimed to have lived with her husband for two years after their marriage, but claimed they married in September 2022. The applicant confirmed she has no 'medical conditions' or 'learning difficulties. The Officer noted :
"... she came across very timid, shy and generally showed some concerning indicators that she wasn't fully aware of her surroundings, whom her husband was, why she was coming here as she kept saying that she was coming to work here also. It seems a pure exploitation case. PAX Wasn't coming across in the correct manner and there were safeguarding concerns. She came across as a minor, very naïve. She appeared much younger than her age 22.
I was about to escort the PAX to the CWA [Controlled Waiting Area] when a lady approached my desk and said that she was the PAXs aunt, she lived here and was travelling with her niece.... She said that her niece was very shy and timid and she didn't know why she was behaving like this.
07:23 hrs HO Bridgette straight away deemed pax needed to be stopped and questioned further..."
20. BFO Ijaz, a SAMS Officer spoke to the applicant at 08:50hrs. BFO Ijaz took appropriate steps to ensure the applicant was visibly away from her aunt in case her aunt posed some kind of threat. When discussing photographs of the applicant and her husband and communications between them, the applicant provided her phone. When looking at messages, the Officer noted three pages of answers that are described as being a 'script detailing everything from his name, date of birth, his job, his salary including when they first met, how they met and the wedding dates'. The applicant explained they were the answers she had given in support of her visa application. The Officer was able to contact Mr Frimpong using the mobile phone of the applicant's aunt. He initially claimed he was at work (on a break) but later admitted he was at home and was unable to explain why he had lied. He claimed the applicant would live with him alone. When it was put to him that that was at odds with the applicant's claim that she would be living with him, her aunt (with whom she had travelled) and her aunt's child, Mr Frimpong claimed "maybe she will stay with her sometimes". When asked who his wife had lived with before travelling to the UK, Mr Frimpong claimed she lived with her "mother and father and no one else". Mr Frimpong was again told that was at odds with what had been said by the applicant.
21. The applicant was interviewed at 11:52 hrs by BFO Mahmood. The applicant claimed she will be staying with her husband in the UK. She said that she has an aunt in the UK named Muine, but was unable to say what her full name is. When asked whether her marriage is genuine, the applicant replied: "No its not genuine we married just for papers". She was asked whether the purpose of the marriage was to gain entry to the UK and she said "yes". When asked "What is the real relationship with Kwane Darko Frimpong if he is not your husband", the applicant said "they married me so I can get my paperwork. He is my aunts husbands family member". The applicant went on to say that she had a partner before but they are no longer together. When asked whether she intended to live with Kwame or be a dependent of his, the applicant said "I don't know". The Officer asked the applicant whether she had lied on her application in order to gain entry to the UK and she replied "yes". She went on to say she had come to the UK to work. At the end of the interview she confirmed that she had understood all the questions asked, and that she had nothing to add. She confirmed that she is fit and well.
22. In my judgment, the decision that followed, to cancel the permission to enter was undoubtedly procedurally fair. The applicant knew throughout that she was being asked about her relationship with Mr Frimpong. She disclosed that she had been married to Mr Frimpong to facilitate her entry to the UK. The Officers had concerns about the applicant and whether she was vulnerable. As Mr Biggs submits, the Officers did have safeguarding concerns when they came into contact with the applicant. That is, they were concerned that the applicant may be a victim of exploitation. The applicant was spoken to by the on-duty SAMS Officer.
23. The applicant refers to the presentation of the applicant set out in the report of Dr Haq and the observation made by Dr Haq that it should have been very obvious to the officers that the applicant was a vulnerable person and therefore should have been provided with all the necessary help. Dr Haq prepared his report without sight of any "relevant medical history or records" and he interviewed the applicant by video link over a period of 1 hour and 30 minutes. Concerns were plainly apparent during the Officers' interactions with the applicant and her 'aunt' on 2 June 2023, regarding the applicant's vulnerability to exploitation. Nevertheless Dr Haq notes in his report that during his assessment the applicant "attended accompanied by her aunt, Mrs Mercy Toku who provided some collateral information about her." At paragraph [2.1] Dr Haq records the applicant was able to interact in English "but she was clearly quite apprehensive" and that she required questions to be repeated to her before she could answer. It appears the applicant's aunt was present throughout that assessment and Dr Haq drew upon information provided not only by the applicant but also her aunt. It would be unsurprising that the applicant may not be as forthcoming with information in circumstances where a person involved in the arrangements for her travel to the UK was sitting beside her during the assessment. Dr Haq states the applicant did not oppose things said by her aunt and that he relied upon the help of her aunt to ascertain background information from the applicant. Dr Haq does not refer to any clinical assessment(s) that he completed and he reached his clinical opinion that the applicant has suffered from depression in the context of unresolved and prolonged grief reaction as a result of her mother's death some years ago.
24. Dr Haq claims the applicant had a "traumatic experience soon after arriving in the UK" and that the applicant did not have any legal or family support during the time she was at the airport. Contrary to what is said, the applicant's 'aunt' had accompanied her to the UK and made herself known to the Officers. Dr Haq claims it should have been very obvious to the Officers that the applicant was a vulnerable person and that she "should have been provided with all the necessary help." There is no attempt to set out or explain what that "necessary help" was. There is no explanation by Dr Haq as to why the applicant's clear admissions, repeated several times, that her claimed marriage was a sham to 'get papers' to facilitate her entry to the UK might be unreliable.
25. On arrival, the applicant spoke quietly and appeared to be shy and timid. The evidence of BFO Chowdhry is that there was no reason to believe the applicant did not have the requisite mental capacity to be interviewed. BFO Chowdry explains the term 'vulnerable' is applied by BFOs and SAMs Officers on a broad and flexible basis. It is not a 'term of art', and its use is highly fact-specific. Here, the applicant was identified as vulnerable based on the risk of exploitation and her being without funds and the means to travel to Nottingham. There were no concerns regarding her mental or physical health. The question of any steps such as the presence of an 'appropriate adult' did not therefore arise. There was in my judgment, nothing unfair about the respondent asking whether the applicant considered she was fit and well to be interviewed, or in the answer that she was, being given due weight.
26. Having read the contemporaneous records of the Officers' interactions with the applicant, I am entirely satisfied that the applicant demonstrated a sufficient understanding of questions asked. There was nothing to suggest that the applicant was not fairly and reliably able to participate during interviews or otherwise during her interactions with Officers because of a lack of capacity, her mental health or otherwise. I accept, as Mr Biggs submits that the contemporaneous documentation shows that the respondent's Officers were sensitive to the applicant's needs and circumstances, and that the multiple interviews were conducted accordingly. There was never any indication that the applicant needed time to prepare an answer and she was given a fair opportunity to explain her relationship with Mr Frimpong and her reasons for coming to the UK. The respondent's officers did contact Mr Frimpong as part of the extensive and careful enquiries that were undertaken. The applicant was given a reasonable opportunity to explain her purported marriage to Mr Frimpong, the information found in her possession and the claims she herself made that the marriage was entered into to 'get papers' for her to come to the UK. All of that was prior to the decision of 2 June 2023 to cancel her permission to enter in accordance with paragraphs 9.7.3(a) and paragraph 9.20.1 of Part 9 of the Immigration Rules.
27. The applicant applied for Administrative Review and it is in my judgment clear the respondent's decision of 18 July 2023 addressed the material relied upon by the applicant, including the report of Dr Haq and gave clear and careful reasons explaining why the 2 June 2023 decision was not considered to be undermined by a case-working error. The reasons, as Mr Gajjar accepted before me, addressed the arguments made in the application for administrative review, and the report of Dr. Haq. It was in my judgment open to the respondent to conclude that after consideration of the further interview notes and contemporaneous minutes, the applicant came across clearly and succinctly and that she did not present herself as someone who could not understand what was being asked of her.
28. In reaching the decision to cancel the applicant's permission to enter and to maintain that decision following Administrative Review, the respondent has not acted unlawfully, unreasonably or irrationally by reference to the principles set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The respondent's decisions of 2 June 2023 and 18 July 2023 were within the range of reasonable responses open to the respondent after a careful consideration of relevant factors and a proper application of the immigration rules. It follows that there is in my judgment no merit to the applicant's claim that the respondent's decisions are vitiated by public law errors as claimed or at all.
29. I therefore dismiss the claim for Judicial Review.
V. Mandalia
Upper Tribunal Judge