Patel, R (On the Application Of) v Secretary of State for the Home Department [2015] EWCA Civ 645

[2015] EWCA Civ 645

Case No C4/2014/2766

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2014] EWHC 501 (Admin)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

His Honour Judge Thornton Q.C.

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 24 th June 2015

Before

LORD JUSTICE MOORE-BICK

(Vice-President of the Court of Appeal, Civil Division)

LORD JUSTICE UNDERHILL

LORD JUSTICE CHRISTOPHER CLARKE

Between

THE QUEENClaimant/

SECRETARY of STATE for the HOME DEPARTMENTDefendant/Appellant

(Transcript of the Handed Down Judgment of

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Mr. Steven Kovats Q.C. and Ms Jacqueline Lean (instructed by Government Legal Department) for appellant

Miss Shivani Jegarajah and Ms Amanda Walker (instructed by Vision Solicitors Ltd) for respondent

Hearing Hearing date : 22 nd April 2015

Judgment

Lord Justice Moore-Bick :

Introduction

[1]This is an appeal against the order of His Honour Judge Thornton Q.C. giving judgment for the respondent, Mrs. Patel, against the appellant, the Secretary of State for the Home Department, in the sum of £125,000 by way of damages (including both aggravated and exemplary damages) for false imprisonment.

[2]The claim arises out of a decision by immigration officers to stop and interview Mrs. Patel as she passed through immigration control at Heathrow Airport on 23rd May 2011 on her way to visit members of her family who live in this country. She had arrived with entry clearance and a visitor’s visa obtained following a successful appeal against the original refusal of her application by the entry clearance officer in Mumbai. As a result of the answers which Mrs. Patel was said to have given to certain questions put to her by an immigration officer in the course of what is known as a “desk interview” (a brief questioning at the point where disembarking passengers pass through immigration checks), it was decided that it was necessary to make further enquiries and that she should be detained for that purpose. After conducting a more detailed interview later the same evening, immigration officers decided that she intended to work while staying in this country, contrary to the terms of her visa, and refused her leave to enter. They decided that she should be detained pending her removal to India. Mrs. Patel remained in custody until she was released on 28th May 2011.

[3]On 26th May 2011 a claim for judicial review of the decision to detain Mrs. Patel was issued by a solicitor instructed on her behalf. The claim included a claim for damages for false imprisonment. Following Mrs. Patel’s release from detention only her claim for damages remained live and on 18th October 2013 it came on for trial before Judge Thornton sitting in the Administrative Court. No witnesses were called to give evidence in person and the hearing was completed within the day. Over nine months later, on 30th July 2014, the judge delivered a judgment running to 138 pages, in which he found that a number of immigration officers had conspired to give a false account of the events of 23rd May 2011 and for that purpose had forged the notes of the two interviews with Mrs. Patel. He also found that they had subsequently given false evidence in the form of witness statements in order to cover their tracks. As a result he awarded her a substantial sum in damages for false imprisonment.

[4]This is the appeal of the Secretary of State, who challenges the judge’s decision on both liability and damages. She submits that the evidence before the judge was not capable of supporting his findings of fact and that in any event the sum he awarded by way of damages exceeded any award that could properly have been made. The proceedings before the First-tier Tribunal

[5]Before considering the proceedings which culminated in the order under appeal it is necessary to describe briefly other related proceedings which arose out of the events of 23rd May 2011. On 28th May 2011 Chief Immigration Officer Khan wrote to Mrs. Patel’s solicitors informing them that he had reviewed the matter in the light of the issue of proceedings for judicial review and was “minded to withdraw the decision [sc. to refuse her entry]” and to examine her case afresh, and, if the decision went against her, to allow her an in-country right of appeal. He invited their views about withdrawing the claim for judicial review, given that an alternative remedy in the form of an appeal to the tribunal would be available to her. He suggested that would be a pragmatic and sensible way forward and gave her temporary admission pending a further decision.

[6]On 9th August 2011 the Secretary of State gave Mrs. Patel notice of her decision refusing leave to enter, cancelling her temporary leave to remain and giving removal directions. Mrs. Patel appealed to the First-tier Tribunal and her appeal came on for hearing before Immigration Judge Dineen on 3rd October 2011. The Secretary of State was not represented before the tribunal, but she provided an “explanatory statement” dated 25th June 2011 dealing with matters surrounding the questioning and detention of Mrs. Patel. That document, to which I shall refer in greater detail at a later stage, referred to events that had occurred after 25th June and was inconsistent in some respects with an earlier explanatory statement, also dated 25th June 2011, which the appellant had previously served. In order to resolve the confusion, Judge Dineen ordered the Secretary of State to file and serve statements explaining the discrepancies. In a letter dated 18th November 2011 the Secretary of State stated that an immigration officer had up-dated the original explanatory statement on 1st October 2011, but had forgotten to amend the date.

[7]The adjourned hearing took place on 9th November 2011. Again the Secretary of State was unrepresented and submitted no witness statements in support of her case. She relied on the explanatory statement, which stated that Mrs. Patel had been refused entry because she had been intending to work while in this country, and on the documents annexed to it, which included what were said to be contemporaneous notes of the two interviews with Mrs. Patel which were said to bear that out. Mrs. Patel relied on statements made by herself, her sister and her brother, none of whom were cross-examined. She said, among other things, that she had been interviewed several times during the course of the evening of 23rd May 2011 and that there had been long intervals between the interviews. At no stage, she said, had she said anything to suggest that she would be sewing curtains or otherwise working for her sister.

[8]In his decision dated 20th January 2012 the judge noted that the explanatory statement was not evidence as such and that there were no statements verifying the notes of interview on which the Secretary of State relied. He also noted that, although the credibility of the immigration officers had been put in issue, they had not been tendered for cross-examination and the Secretary of State had adduced no evidence in support of her case. He preferred the account given by Mrs. Patel to that put forward by the Secretary of State. He stated that he was not satisfied that she had admitted intending to undertake paid work in contravention of the terms of her visa. He therefore allowed her appeal. The proceedings before the Administrative Court

[9]As a result of the determination of the First-tier Tribunal, the only aspect of the original claim for judicial review which remained live was Mrs. Patel’s claim for damages for false imprisonment. The trial was originally listed before His Honour Judge Gore Q.C. on 30th April 2013, but there was a dispute about disclosure and other preparatory matters and in the event the time allowed for the hearing was used for the purpose of giving directions. The judge expressed the view that the case should be transferred to the non-jury list of the Queen’s Bench Division, but the claimant resisted that suggestion and the Secretary of State appears to have expressed no positive view one way or the other. As a result, the case remained in the Administrative Court with no additional directions designed to ensure that witnesses gave evidence in person and were available for cross-examination.

[10]In my view, this was the first of a number of unfortunate procedural errors. In the grounds filed in support of her application for permission to proceed with her claim for judicial review Mrs. Patel alleged that there was no reliable evidence to support the allegation that she had said that she would undertake work in the form of sewing curtains for sister. Her case was that she had been subjected to arbitrary and malicious treatment by the immigration officers of a kind that amounted to misfeasance in public office because they had acted with reckless indifference to the lawfulness of their actions. These allegations reflected the grounds put forward by Mrs. Patel’s solicitors on 18th October 2011 when renewing her application for permission to proceed with the claim. They also reflected an allegation made in the skeleton argument deployed before the First-tier Tribunal in support of Mrs. Patel’s case that the immigration officers had acted maliciously in refusing to allow her to enter the United Kingdom. If the Secretary of State had taken the trouble to read those documents and consider their implications, therefore, I do not think that she could have been in much doubt that the integrity of the immigration officers was in issue.

[11]In those circumstances it was unfortunate, to say the least, that the claim was allowed to proceed to a hearing on the basis of documents alone in accordance with the ordinary procedure of the Administrative Court. This was a case which in my view could not properly be disposed of without hearing the protagonists give evidence in person and subjecting themselves to cross-examination. I find it astonishing that the Secretary of State, whose officers were being accused of acting dishonestly and maliciously, should have been willing to allow issues of that kind, which closely touched their reputations and their careers, to be determined without giving them a chance to be heard. With respect to Judge Gore, I think he should have followed his instincts and directed that the matter be transferred to the non-jury list of the Queen’s Bench Division, whether the parties wished it or not, or at least should have directed that the case continue in the Administrative Court as a Part 7 claim and given directions accordingly. Had that been done, it is probable that the judge conducting the trial would have seen and heard all the witnesses give evidence and would have had the benefit of seeing them cross-examined, both generally and by reference to the critical notes of interview. He would then have had a sound basis for reaching a decision which was likely to be of personal importance to all those involved.

[12]However, the parties, rather than Judge Gore, must bear the blame for what in my view was a wholly unsatisfactory procedure. In particular, the Secretary of State appears to have taken an unaccountably cavalier attitude towards the proceedings. At the hearing on 30th April 2013 Judge Gore gave her liberty to file further evidence and give disclosure in relation to certain questions concerning the circumstances of the interviews and the identities of the signatories to various documents that had been raised by Mrs. Patel’s solicitors the day before. The questions were answered, but in the most perfunctory terms and although the judge had suggested that further evidence would be helpful, no attempt was made to deal with the substance of the case against her. The Secretary of State made no attempt to ensure that the officers in question were called to give evidence in person, speak to the documents and defend the challenges to their integrity.

[13]Thus it was that the matter came before Judge Thornton for trial on the papers alone. Mrs. Patel’s case was that she had at no time mentioned working for her sister by sewing curtains, that she had been browbeaten and harassed by the immigration officers on and off over a period of some hours and that the records of the two critical interviews had been fabricated after the event. The Secretary of State’s case was that Mrs. Patel had been interviewed on only two occasions, that the records of the two interviews were contemporaneous and accurate, that Mrs. Patel had said (as recorded in them) that she expected to work for her sister and to be paid something for doing so, and that the immigration officers had acted honestly and reasonably. Neither side appears to have contemplated, at least overtly, the possibility that some aspects of the discrepancies between their respective cases might have been the result of differences of perception, differences of recollection or simple misunderstandings of the kind that can occur when a person is interviewed through an interpreter.

[14]In paragraph 316 of his judgment Judge Thornton made what he described as his ‘core findings’. They included the following:(i) that Mrs. Patel did not intend to help her sister sew curtains;

(ii) that at no time did she say that she did;

(iii) that she did not make the admissions recorded in the notes of interview;

(iv) that Mrs. Patel had been subjected to at least five further informal interviews, none of which had been recorded or referred to in the Secretary of State’s evidence;

(v) that all the interviews had been conducted by Immigration Officer Newton, who had deliberately concocted and falsified the records;

(vi) that Mrs. Patel had been temporarily detained at about 18.45 on 23rd May 2011 for further interviews and investigations, although there was no apparent basis for doing so;

(vii) that, following Mrs. Patel’s release, Immigration Officer Newton and another officer, Chief Immigration Officer Khan, had tried to cover up the unlawful nature of the decision to cancel her leave to enter when they drew up the explanatory statements provided in connection with the various proceedings;

(viii) that they were assisted in doing so by another officer, Chief Immigration Officer Davies, who had made two witness statements for the purposes of the judicial review proceedings which he knew, or ought to have known, were false in material respects;

(ix) that the immigration officers’ objective was to mislead the First-tier Tribunal and subsequently the court.

[15]On that basis the judge held that the decisions to detain Mrs. Patel were all “unlawful as being ultra vires, taken for an ulterior purpose, unreasonable, irrational and taken without taking all relevant factors into account and wrongly taking irrelevant or non-existent factors into account.” 16. The Grounds of appeal

[16]The grounds of appeal are commendably succinct. They are:(i) that the detention of Mrs. Patel was lawful throughout;

(ii) that it was not open to the judge to make findings of bad faith against the immigration officers on the basis of the evidence before him, particularly in the absence of an opportunity for them to give oral evidence;

(iii) that the award of damages was excessive; and

(iv) that

article 14 of the Convention

, read together with article 5, does not require the mechanical recording of immigration interviews. Were the judge’s findings open to him?

[17]This question lies at the heart of the appeal and I therefore propose to consider it first. Despite the length of the judgment, the central events underlying Mrs. Patel’s claim fall into a relatively narrow compass, having all occurred in a few hours between 18.45 when she presented herself at the immigration desk and midnight on 23rd May 2011, by which time the interviews had been completed. The primary evidence also fell into a fairly small compass, comprising the notes on the back of her landing card, the notes of the interview which began at about 23.00 on 23rd May 2011 and the various statements made by Mrs. Patel and the immigration officers for the purposes of the proceedings. In addition, by way of secondary evidence there were the two explanatory statements, on which the judge placed considerable importance, Border Authority records, in particular the Case Record Sheet maintained on the General Casework Information Database (“GCID”) and the determination of Immigration Judge Dineen, to which I have already referred. The statements made by Mrs. Patel’s sister and brother are inevitably of rather less importance for these purposes, since neither of them was present when the interviews were conducted. The notes of interview

[18]On the back of Mrs. Patel’s landing card there is what purports to be a note of the initial desk interview written in a neat and tidy hand. It reads as follows:

“In Gujerati [sic] W/IO Menon Visiting parents + siblings – GBR nationals; staying 3 months but return ticket for 03/10/11. Claims father in law booked ticket; now admits planned to come here for 5 months; - sister paid for ticket (sews curtains) – parents are cleaners - pax [passenger] is farmer/housewife - won visa on appeal; doesn’t know why refused as brother dealt with application - will help sister sew curtains at home and will get paid; not sure how much but will be paid. - married, son (10) daughter (7) IS81@1845 S. Reeves C. Norris Brother: [Telephone number] – Lakshman”

IS81@1845 S. Reeves C. Norris Brother: [Telephone number] – Lakshman”

C. Norris

[19]What purports to be a note of the interview held between 23.00 and 23.52 was made on a set of printed sheets. The first, headed “Interview Front Cover”, is a pro forma which the interviewing officer is clearly expected to complete in conjunction with the person being questioned. It provides for the recording of various details, including the names of the passenger and interviewing officer, the language in which the interview is conducted and the names of the interpreter and anyone else present at the time. It also contains the following rubric which is intended to be read by the interviewing officer to the passenger being interviewed:

“If at any time during the course of this interview you do not understand a question or are having difficulty in understanding the interpreter/me then please make me aware.”

The rubric is followed by the question: “Are you fit and well & happy to be interviewed?” which is followed by a space for the passenger’s response and below that a space for his or her signature.

[20]At the foot of the sheet there is space in which to record the time at which the interview terminated and below the following rubric: “I confirm that I have read/have had read to me the record of my interview, I have understood all the questions put to me and I confirm that it is an accurate record”, below which there is space for the passenger’s signature, the date and time.

[21]The following sheets are divided down the centre, the left hand side being designated for recording the questions and the right hand side for recording the answers. There is space at the foot of each page for the signature of the passenger and the interviewing officer. In this case there are four pages of questions and answers in addition to the cover sheet. Mrs. Patel appears to have signed the cover sheet both to confirm her fitness and willingness to be interviewed and to confirm that the notes are an accurate record of the questions put to her and the answers she gave. She also appears to have signed three of the four following pages. The questions and answers are recorded in manuscript using capital letters. They are not particularly neatly written and in some respects not entirely easy to read; the appearance of the record is consistent with its having been written in a hurry.

[22]It is necessary to refer only to the following questions and answers: Q7: Do you have any specific plans for when you are in the UK? A: My sister is sewing curtains at home so I will help her sew the curtains. Q8: Can you please explain what you will do for your sister? A: I will help my sister. My sister works in a factory sewing curtains but she brings work home so I will help her. Q9: Will you receive payment for this? A: Yes, she will give me money for helping her but have not decided a fixed amount. She will give me whatever she can . . . Q24: Does your sister own the sewing business? A: I don’t know. I know people bring sewing work to her home and tell her what they want. She does this work and the people collect. Q25: As a visitor, any work paid or unpaid is not permitted. Are you aware of that? A: I was not aware that I could not work. Q26: Do you have any expectation of how much your sister will pay you? A: This is my 1st time. I have no idea. I don’t know how much I would get. Q7: Do you have any specific plans for when you are in the UK? Q8: Can you please explain what you will do for your sister? Q9: Will you receive payment for this? Q24: Does your sister own the sewing business?

Q26: Do you have any expectation of how much your sister will pay you?

[23]If the notes were made in the course of the two interviews and are accurate, they provide cogent support for the Secretary of State’s case that Mrs. Patel told the immigration officers that she was expecting to help her sister sewing curtains and expected to be paid something for her efforts. However, Mrs. Patel denied having said anything about sewing curtains in either interview (or indeed on any other occasion). Her case was that the notes were forgeries which had been fabricated after the event in order to support a false account and to provide grounds for the refusal of leave to enter and subsequent detention. That is not an impossible state of affairs, of course, but it involves finding that Mr. Newton (who admitted having conducted the second of those interviews), and other immigration officers as well, had decided to detain Mrs. Patel for no apparent reason and had dishonestly fabricated two documents in order to provide a justification for having done so and had then conspired together to hide the truth. It also involves finding that no contemporaneous note had been taken of either interview, or, if it had, that it had been destroyed or suppressed in some other way.

[24]I have already observed that the Secretary of State must bear much of the blame for the fact that none of the witnesses gave evidence in person and that the judge therefore did not have the benefit of seeing them cross-examined, as would be expected in a case of this kind. She must also bear the blame for failing to place before the court detailed witness statements from all of the officers who could give useful evidence, including, for example, Immigration Officers Reeves, Norris and Menon, all of whom are mentioned in the notes of the desk interview. As a result, the judge was faced with significant gaps in the evidence and signal failures on the part of those who had direct knowledge of the events in question to give their explanation of what had occurred. Faced with unanswered questions, many of which arose from discrepancies between various documents, the judge was prepared to draw positive inferences of the most damaging kind from the failure of the Secretary of State to provide in full the evidence which he considered to have been available to her. The central question on this appeal is whether he was entitled to do so. In those circumstances it is necessary to examine a little more closely the evidence before him. Mrs. Patel’s evidence

[25]In a statement dated 11th March 2012 Mrs. Patel said that when she arrived at the immigration desk she was stopped for questioning. She said that she was asked questions in Hindi by an immigration officer at another desk, although her mother tongue was Gujarati. She was kept waiting until about 10.30 pm when she was interviewed in detail for the first time. This time she had the services of a Gujarati interpreter. After fifteen minutes or so the officer went away and left her alone for a few hours before returning to ask the same questions. She said she was interviewed several times. She told the officer that she had come simply to visit her family and denied that she had any intention of working. The officer was not happy with her denials and kept insisting that she had come to this country to work. It was he who had suggested that she would help her sister sewing curtains. After many such interviews she was told that she had been refused entry and was detained pending her removal. Immigration Officer Newton’s evidence

[26]Immigration Officer Newton made two statements. In the first dated 28th July 2012 he said that he had taken over Mrs. Patel’s case at about 22.30 on 23rd May 2011 and having arranged for an interpreter to be present by telephone, interviewed her at about 23.00 hours. He said that she had declined refreshments but had confirmed that she was fit and well and able to be interviewed. He said that he had read out the Interview Front Cover sheet and completed it in her presence. He had then asked the questions and written down the answers on the following sheets as the interview progressed, before reading them over to her at the end, using the interpreter. She then signed the front sheet and each of the following pages. A summary of the interview was later put into the computerised record using the handwritten notes as the basis for the entry. The officer denied having raised his voice or having bullied Mrs. Patel in any way. He said that he had referred the matter to Chief Immigration Officer Davies, who had authorised the refusal of her leave to enter and the cancellation of her visa.

[27]As I mentioned earlier, at the hearing before Judge Gore on 30th April 2013 the Secretary of State was given permission to file additional evidence. By that time discrepancies between the two versions of the explanatory statement had emerged and questions had been asked about how they had been compiled. In a second statement dated 22nd August 2013 Mr. Newton identified, as far as he could, the signatures on various documents with which he appeared to have been involved. He also confirmed that the desk interview had been conducted by Immigration Officer Reeves. Chief Immigration Officer Davies’ evidence

[28]In a statement dated 5th November 2012 Mr. Davies confirmed that he had authorised the refusal of permission to Mrs. Patel to enter this country because in his view there had been a change in circumstances since her entry clearance and leave to enter had originally been granted. He said that Mr. Newton had brought the matter to him, that he had read the notes of interview and had noticed that Mrs. Patel had stated twice that while in this country she would undertake work in return for payment. In his view that was sufficient to justify his decision.

[29]In a second witness statement dated 22nd August 2013 Mr. Davies confirmed that the original desk interview had been conducted by Mr. Reeves, who had referred the matter to Chief Immigration Officer Norris. He said that the reference in the explanatory statements to Mr. Newton having conducted that first interview had been an error. The explanatory statements

[30]The first explanatory statement is dated 25th June 2011 and was made for the purposes of Mrs. Patel’s first appeal. It was signed by Chief Immigration Officer Khan and an immigration officer whose signature is indistinct and was not identified in the evidence, although the judge found that it must have been Mr. Newton’s. It states that on arrival at Heathrow Airport Mrs. Patel presented herself to Mr. Newton who conducted an interview with the assistance of a qualified Home Office Gujarati interpreter. The report then described a number of steps taken by Mr. Newton before he conducted the interview at about 23.00 hours the same evening. No other immigration officer is said to have been involved.

[31]The second explanatory statement was also dated 25th June 2011, but must have been made at a later date, because it refers to events occurring between 25th June and 31st August 2011. The statement continued to identify Mr. Newton as the officer who had dealt with Mrs. Patel’s case from the outset. Other documents

[32]The only other document that calls for mention in this context is the Case Record Sheet. A record of this kind is generated in relation to every case and contains a running record of developments day by day. The original entry appears to have been made by Mr. Newton at just after 02.00 hours on the morning of 24th May 2011. It records that the case had been handed to him at 22.30 hours the previous day, but does not state who carried out the initial desk interview. Immigration Judge Dineen’s determination

[33]It is necessary at this stage to refer to Immigration Judge Dineen’s determination, since the judge placed some weight on it, as did Miss Jegarajah in her submissions to us. The determination was made in the context of an appeal by Mrs. Patel against the second refusal of leave to enter, of which she was notified on 9th August 2011. Given the history of the matter it is surprising that the Secretary of State was unrepresented at the hearing before the tribunal and that she submitted no witness statements in support of her case. The hearing took place on 5th October 2011. The explanatory statement provided by the Secretary of State, which was said to have been issued on 1st October 2011, apparently continued to identify Mr. Newton as the only officer who had dealt with Mrs. Patel on 23rd May. Judging by the excerpts cited in paragraphs 33-35 of the judge’s determination, it appears that the contents had not changed since the first version had been drafted.

[34]Judge Dineen pointed out that the Secretary of State had not filed any evidence in response to that of Mrs. Patel. He accepted that the explanatory statement did not constitute evidence. He also pointed out that there was no evidence confirming that the desk interview had been carried out by Mr. Newton and that Mr. Newton had not deposed to the accuracy of the notes of the interview that was said to have taken place during the late evening of 23rd May 2011. He drew attention to the fact that no response had been offered to Mrs. Patel’s assertion that she had been interviewed more often than had been recorded in the explanatory statement. In those circumstances he preferred her account of the events of 23rd May 2011, but he expressed himself cautiously: he simply said that he was not satisfied on the balance of probabilities that she had admitted that she intended to undertake paid work. nor was he satisfied that there was evidence on which he could find that she had been subjected to harassment. Judge Thornton’s analysis

[35]Mr. Kovats Q.C. drew our attention to what he submitted were examples of a lack of balance in Judge Thornton’s judgment. They were typified, he submitted, by a propensity on the part of the judge to put the worst possible construction on every lacuna or inconsistency in the Secretary of State’s evidence and to accept uncritically everything said by Mrs. Patel. A few examples put forward by Mr. Kovats will suffice to illustrate his point.(i) The judge found (paragraph 38) that the upper part of the landing card had been redacted and that the redacted part would have been likely to have identified the interviewing officer. He castigated the failure to disclose the original landing card or the redacted words as “a deliberate failure to disclose highly relevant evidence that supported [Mrs. Patel’s] case.” He also found that there was every reason to suppose that the failure to disclose that and other documents was the result of a conscious decision by Mr. Newton or Mr. Khan to withhold documents that would have undermined the Secretary of State’s case (paragraph 39). In fact, however, the landing card (which in any event did not appear to have been deliberately redacted) had been badly copied; the part that had been partially obscured showed nothing at all. The identity of the interviewing officer (Mr. Reeves) was shown at the foot of the card.

(ii) The judge noted in paragraph 44 that form IS91 had not been signed by Mrs. Patel by way of acknowledgment and that the evidence suggested that it had not been served on her or its contents explained to her. He inferred that the absence of any explanation for these errors and omissions was very probably a decision on the part of Mr. Newton to try to hide the fact that he had conducted the preliminary interview and had then issued the form himself.

(iii) In paragraph 47 the judge accepted that the notes of the desk interview indicated that Mr. Reeves and Mr. Norris had been responsible for the interview and the subsequent decision to detain Mrs. Patel for further inquiries, but he noted that there was no other document that identified them as having been involved and that neither of them had made a statement confirming their involvement. He concluded (paragraph 49) that the notes had been written up by Mr. Newton after he had finished dealing with Mrs. Patel’s case, that he had written them up some hours after the interview had taken place, and that he had inserted the names of Mr. Reeves and Mr. Norris despite the fact that neither of them had had anything to do with her case. That, he said, explained why there was no witness statement or any corroborating documents showing that either of them had been involved in the desk interview and also explained why the notes contained no indication of their authorship or of the time or location at which they had been written.

(iv) In paragraph 77 the judge noted that the Secretary of State had provided no evidence relating to the period between the conclusion of the desk interview and the interview which took place at 23.00 hours. He also noted that, although Mr. Newton said that he had taken over Mrs. Patel’s case at 22.30 hours, he had not said at what time he had come on duty. The judge regarded the absence of evidence about what happened during that period as further and potentially reliable evidence that Mr. Newton had been the sole, or at any rate the principal, officer dealing with Mrs. Patel throughout the whole of that period.

(v) Mr. Newton had said in his first statement that Mrs. Patel’s case had been handed over to him at 22.30 hours on 23rd May 2011, but he could not remember by whom. The judge in paragraph 87 thought that inherently unlikely and considered that he could have ascertained the identity of the officer concerned from internal records. He considered that if there had been any such hand-over there would have been a discussion which Mr. Newton would have remembered. He concluded (paragraph 88) that “the absence of any evidence from him and from any other source about what he was provided with at the hand-over strongly suggests that no such hand-over occurred and that [he] had been involved in her case throughout her time in detention.”

(vi) In paragraphs 116-118 of the judgment the judge contrasted Mrs. Patel’s statements which “could not be clearer” with Mr. Newton’s evidence which, he said, “did not address [her] evidence of being bullied or of being repeatedly interviewed, [and] did not attempt to explain why reliance could be placed on the reported content of her preliminary or further interviews . . .” Having considered the evidence as a whole, he found that:

“only one conclusion is possible: [Mrs. Patel’s] evidence in relation to this interview is to be accepted in its entirety and the Secretary of State’s case about it is to be rejected. [Mrs. Patel] was bullied, she never made the admissions attributed to her, she continuously denied she had any intention to work or to help or assist [her sister] in sewing curtains and the notes were deliberately written up to record her so-called admissions when it was known that she had not provided answers in that form and was vehemently denying any intention to take employment or to do anything other than visit her family.” (Emphasis supplied.)

[36]Miss Jegarajah submitted that the judge had carried out a careful and detailed examination of the evidence and had been entitled to reach the damning conclusions to which he came. She pointed out, quite correctly, that the Secretary of State had been put clearly on notice of the nature of Mrs. Patel’s case, but had failed to place before the court evidence to explain what were, on the face of it, serious errors and shortcomings in the procedure adopted in this case. She could hardly complain if, under those circumstances, the judge drew a number of adverse inferences when making his findings of fact, all of which were open to him on the evidence before the court.

[37]I have already said that in my view the procedure adopted in this case placed the judge in a difficult position. The case revolved around contradictory accounts of what had occurred during a period of some six hours during the evening of 23rd May 2011, almost two and a half years earlier. He was faced with parties, each of whom was accusing the other of lying, without the benefit of seeing the witnesses and hearing them cross-examined by reference to the contemporaneous documents, or indeed at all. Added to that was the fact that the Secretary of State had made little effort to adduce evidence of the kind that might have enabled many troubling questions to be answered. In such circumstances a judge is faced with a difficult and frustrating task, but that does not entitle him to draw inferences which are not properly supported by the evidence. In particular, it does not justify him in treating the absence of evidence as evidence to the contrary, nor does it entitle him to make findings of dishonesty if other explanations, such as muddle, mistake or incompetence, are equally plausible. Although the parties may accuse each other of lies and dishonesty, it is important to have regard to the inherent likelihood and to remember that where oral conversations are involved (especially when conducted through an interpreter, perhaps under less than ideal conditions) there is often room for simple misunderstanding. A judge should always be cautious about making a finding of dishonesty, particularly when he has not had a chance to assess in the witness box the person against whom that accusation is made.

[38]In this case the judge placed a good deal of weight on the explanatory statements, the contents of which he accepted at face value. The first was dated 25th June 2011 and was signed by Mr. Khan and another officer whose signature is illegible. (The judge found that it had been signed by Mr. Newton, although Mr. Newton said that he could not identify the signature.) It stated that on her arrival at Heathrow Mrs. Patel had presented herself to Mr. Newton who had conducted a desk interview using a Home Office qualified Gujarati interpreter. Mr. Newton had then dealt with the matter, including making various enquiries of the United Kingdom Central Reference System and conducting a sponsor interview by telephone with Mrs. Patel’s brother-in-law.

[39]A second explanatory statement was later produced. The copy before the judge was not signed and although it, too, was dated 25th June 2011, it must have been made in or after September 2011, because it referred to the receipt on 31st August 2011 of an order of the High Court. The first 14 paragraphs of the two statements appear identical, but paragraphs 15-19 of the second statement reflect developments which had taken place since the first statement had been made. The obvious inference is that the person who produced the second statement started with the text of the first statement, retained its first 14 paragraphs and then continued the story in order to bring it up to date. He forgot, however, to alter the date of the statement – an example of how errors can creep into documents even of a formal nature. That accords with the explanation given by the Secretary of State to Immigration Judge Dineen.

[40]There was no evidence before the judge of how either of the explanatory statements had been produced or by whom, apart from the fact that the first statement was authenticated by Mr. Khan. The uncritical retention of the wrong date in the second statement suggests that it is unlikely that the maker reviewed paragraphs 1-14 and he probably had no reason to do so.

[41]The judge gave great weight to the explanatory statements. For example, in paragraph 29 of his judgment, when dealing with the desk interview, he said:

“29. In order to leave Terminal 4, [Mrs. Patel] presented herself to an IO located at a primary check point. IO Newton and CIO Davies, the two witnesses whose statements were adduced by the SSHD in this judicial review, identified that IO as being IO Reeves. However, the explanatory statement is clear that that IO was IO Newton and there is no other independent evidence as to the identity of that IO. There is therefore considerable doubt as to whether IO Reeves was involved in any way in [Mrs. Patel’s] case following her arrival at Terminal 4.”

He might just as well have said that, since the landing card identified the officer who conducted the desk interview as Mr. Reeves and since there was evidence from both Mr. Newton and Mr. Davies to the same effect, there was considerable doubt whether the explanatory statement was accurate.

[42]Similarly, in paragraph 35 of the judgment, when answering the question who had conducted the desk interview, the judge found that Mr. Newton was “the most obvious contender since he was named as the interviewing officer in the explanatory statement.” However, that assumes that the explanatory statement is more reliable than the contemporaneous notes.

[43]Nonetheless, in paragraph 36 the judge did ask himself how much reliance could be placed on the explanatory statement as evidence that Mr. Newton had carried out the desk interview. He held that it depended to a significant extent on who drafted the explanatory statement and signed the original copy to certify the accuracy of its contents. He also considered it necessary to consider the minute sheet which Mr. Newton had made on 24th May 2011 and the entry in the GCID log. He concluded that, because the account of the events of the 23rd May 2011 had been entered by Mr. Newton as one entry, that suggested he had been involved in all of them. In his view, if Mr. Reeves had carried out the desk interview and issued the IS 81 form, he would have made a separate entry in his own minute sheet and the log. The judge continued (paragraph 37):

“ . . . the logs or time sheets that would have shown who was initially handling her case, when IO Newton came on duty, what he was doing prior to 22.30 that evening and why he was chosen to take her case over after she had been in temporary detention for nearly four hours have never been disclosed, if they had ever existed.”

[44]The comment “if they had ever existed” coming at such a early stage in the judgment might be thought to betray a certain attitude towards the Secretary of State’s case, but the real difficulty I have with this part of the judgment is that it relies on an absence of evidence about when and how logs and other records were routinely created, together with a failure to provide disclosure, to arrive at a conclusion that fails to take proper account of a key contemporary document and the evidence of the two officers directly involved. The inference is reinforced by the mistaken view of the landing card to which I have already referred. The reasoning culminates in the conclusion that:

“39. There is therefore every reason to suppose that the non-disclosure of the relevant logs, timesheets and the redacted passage on the landing card was the result of a conscious decision by IO Newton or CIO Khan to withhold documents that would have undermined the SSHD’s case and that these documents would have confirmed that the explanatory statement was accurate when it stated that IO Newton was the responsible IO for [Mrs. Patel’s] case throughout. This conclusion is reinforced by the complete absence of any minute sheet, CID entry or witness statement by IO Reeves or of any independent corroborative evidence that he had had any involvement in [Mrs. Patel’s] case.”

The integrity of Mr. Newton and Mr. Khan is thus fatally compromised.

[45]The next step was to identify the illegible signature of the immigration officer on the first explanatory statement. Neither Mr. Newton nor Mr. Khan could identify it and there was no expert handwriting evidence, but the judge felt able nonetheless to make a finding on which he was prepared to place some weight. He said (paragraph 41):

“The second “IO’s Signature” is virtually illegible but if this signature is compared with the initialled part of two documents said by IO Newton and CIO Davies in their second witness statements to have been initialled by IO Newton, it appears that the signature on the explanatory statement and the initials on these documents were all made by the same person, namely by IO Newton. Similarly, if the initials are compared with the initials on two other documents said by IO Newton and CIO Davies to have been initialled by IO Reeves, the signature on the explanatory statement appears to have been made by the same person as acknowledged these two further documents. In short, IO Newton appears to have signed the explanatory statement and initialled all the relevant documents giving rise to the suspension of [Mrs. Patel’s] leave to enter and her temporary detention.”

[46]This is precisely the kind of point that could have been put to Mr. Newton in cross-examination, had he been called to give evidence, but in the absence of expert evidence, or of an admission by Mr. Newton that it was his signature, or of evidence from someone who had seen him sign the document, the conclusion was one for which in my view the judge had no reliable basis. However, he then piled Pelion on Ossa in paragraphs 42-43 as follows:

“42. A yet further indication that IO Newton signed and helped to prepare the explanatory statement is that its contents revealed that someone with a detailed knowledge of everything that had happened throughout the period starting with [Mrs. Patel’s] arrival at the preliminary check point and continuing throughout [her] temporary detention must have been involved in its drafting. CIO Khan had no involvement with [Mrs. Patel’s] case or her temporary detention whereas IO Newton is the only person [who] could have had a detailed knowledge of the entirety of her case and its investigation and interviews and the various decisions that were taken. 43. A final and particularly telling indication that IO Reeves was not the interviewing IO is that although IO Newton and CIO Davies asserted that the interviewing officer who took the decision to detain [Mrs. Patel] was wrongly named as IO Newton and should have been named as IO Reeves, they gave no other details to explain or justify this assertion. It was obviously crucial to ascertain which IO had interviewed [Mrs. Patel] and since IO Newton had apparently helped draft the explanatory statement, he was in a good position to explain the mistake. He was, however, silent on that matter and provided no explanation as to why IO Reeves had not made a statement explaining that he was the interviewing officer or why there was no document showing that IO Reeves was on duty at a preliminary check point in the early evening of 23 May 2011. ”

[47]With all due respect to the judge, the fact that the person who drafted the explanatory statement had detailed knowledge of everything that had happened throughout the period in question tells one nothing, unless there is reason to think that he could not have obtained the information otherwise than at first hand. As far as I can see, that was not the case. Moreover, the fact that neither Mr. Newton nor Mr. Reeves gave any other details to explain or justify their assertion that the desk interview had been carried out by Mr. Reeves is a slender basis for concluding that Mr. Newton was lying about it. It was not for him to explain why Mr. Reeves had not made a statement dealing with these matters.

[48]Finally, in paragraph 44

the judge said:

“44. A yet further suspicious matter was disclosed by the IS 91 form which had to be prepared to record [Mrs. Patel’s] detention and also had to be served on her and its contents explained to her. It is not clear when this form was prepared and the evidence suggests that its contents were neither explained to her nor served on her. Finally, and very tellingly, she had not signed the acknowledgement box provided on the form. The lack of an explanation for these errors and omissions is very probably explained by IO Newton deciding that he wanted to hide the fact that he had conducted the preliminary interview and then issued [Mrs. Patel’s] IS 91 form recording her temporary detention. IO Reeves would have had no discernable [sic] motive to hide his involvement had he interviewed [Mrs. Patel] and then decided to temporarily detain her.”

This amounts to little more than speculation of a prejudicial nature.

[49]By this reasoning the judge came to the conclusion that Mr. Newton had drafted and authenticated the explanatory statement, that he had been the only officer involved with Mrs. Patel during the evening of 23rd May 2011, that, for reasons which are still unexplained, he had maliciously decided to refuse her entry (although she had given him absolutely no reason to do so), that with the connivance of Mr. Davies he had falsified the notes of the desk interview and also the notes of the formal interview and had subsequently suborned his colleagues into supporting an attempt to mislead both the First-tier Tribunal and the court. That also allowed him to come to the conclusion that Mrs. Patel was an entirely reliable witness, who had been both shamefully bullied and harassed and wrongfully detained.

[50]I have concentrated on this part of the judgment because it lies at the heart of the case and underpins all that follows. In my view the judge took an unbalanced and uncritical view of the evidence which was not fairly capable of supporting such damaging findings. There are three aspects of his reasoning that I find particularly troubling. The first is that it does not appear to have crossed his mind that there may have been room for an honest mistake. Mrs. Patel spoke little English; her native language was Gujarati. The notes of the desk interview state that she was interviewed in Gujarati. She said she was interviewed in Hindi. If Officer Menon did not speak Gujarati, anyone falsifying the notes on the landing card could expect the error to be discovered. The officer was not a Home Office accredited interpreter and may not have been as adept as might have been wished. As anyone with experience of taking evidence through an interpreter knows, even with an experienced interpreter mistakes and misunderstandings can occur. The circumstances in which the interview took place seem to me to provide ample opportunity for that to happen.

[51]The second is that there were good reasons for approaching Mrs. Patel’s own evidence with some caution. It does not appear to be disputed that the desk interview was concluded at about 18.45 hours and that the formal interview began at about 23.00 hours, an interval of a little over four hours. Mrs. Patel’s evidence that she was interviewed several times during that period at intervals of three or four hours cannot be correct. That alone should have caused the judge to examine her account critically, but he does not appear to have done so.

[52]The third relates to the notes of the two interviews. On the face of them they appear to be genuine. There was no redaction of part of the landing card; that was simply a misunderstanding on the judge’s part resulting from poor photocopying. It is highly regrettable that he was not provided with a copy of the kind which has been included in our bundles. On the other hand, his reaction betrays a tendency to see the worst in every unexplained inconsistency. The notes of the formal interview follow a pattern consistent with what would be expected and bear the signs of having been written hurriedly, as would be likely if they were written during the course of the interview. The interpreter is not identified by name (although he could easily have been identified from his number), but on this occasion Mrs. Patel accepted that he had been a Gujarati speaker and the interview could not have continued for any length of time if he had not been. Of course, the whole document could have been fabricated after the event, but Mrs. Patel does not deny that she signed it (even if she did not understand its contents) and she did not allege that she was asked to do so a long time after the interview had come to an end.

[53]In paragraphs 87-111 of his judgment the judge dissected the evidence relating to the formal interview in minute detail. He began by discussing Mr. Newton’s evidence of the circumstances in which he had taken over Mrs. Patel’s case. I have already referred to that and need say no more about it here. He then proceeded to identify various failures on the part of Mr. Newton to comply with procedural requirements (for example, his failure to record the name of the interpreter) and observed (paragraph 93) that there was no corroboration of Mr. Newton’s evidence that the interpreter had attended by telephone, that Mrs. Patel appeared to understand the questions and that the record had been read out to her and confirmed at the end of the interview. The implication is that in the absence of corroborating evidence Mr. Newton’s account is to be disbelieved.

[54]In this context the judge considered the evidence relating to Mr. Newton’s contacts with Mrs. Patel’s brother, Laxman. He considered it “significant” that Mr. Newton had not mentioned the matter in either of his statements and had referred to it only cursorily in his notes. He also considered it “significant” that it was not given much prominence in the explanatory statements. Again, the implication is that there was no innocent explanation for either of those matters.

[55]When he came to consider the record of the interview in paragraph 105 of his judgment the judge identified a number of questions which he thought could not have been accurately recorded because the answers seemed to respond to a question which had been slightly, but significantly, differently worded. He also thought that the critical answers should have been further explored. He then analysed the interview by reference to the guidance contained in the Border Force Operations Manual and found many shortcomings in the procedure adopted by Mr. Newton. Thus, (i) In relation to the instruction to interview the passenger to establish all the facts of the case, he said:

“IO Newton should have noted up each interview that took place or, in his evidence have expressly refuted that he interviewed her on other occasions, should have answered [Mrs. Patel’s] evidence and should have explained why the interview did not start for well over four hours after her arrest. Since IO Newton’s credibility was in issue, he should have been offered for cross-examination and the interpreter should have provided a statement explaining what, if any, possible misunderstandings occurred which might have led to confusion as to what she said about helping sewing curtains.”

In my view that amounted to treating the absence of evidence as tending to prove the contrary, i.e., that Mr. Newton was not telling the truth. (ii) In relation to the instruction to ask the passenger whether he is fit and well to be interviewed and to record any response, he said:

“The front cover merely provided a standard question: “Are you fit and well & happy to be interviewed?”

The answer was “yes”. [Mrs. Patel] had been travelling for nearly 24 hours, was short of sleep and very frightened. She also stated in her evidence that she complained about being questioned given how tired and upset she was. It is unlikely that her answer would have been a laconic “yes” in those circumstances. IO Newton should have explained in the record why he was confident that she was fit, well and happy to be interviewed given these obvious facts.” It is difficult to understand what one is to infer from that, other than a general criticism of Mr. Newton. (iii) The judge criticised Mr. Newton for failing to ask Mrs. Patel more searching questions about the nature of her sister’s employment, the precise kind of help she might be able to give her and the payment she might receive. Mr. Newton’s failure to probe more deeply by asking questions of that kind may be relevant to the question whether the information he had justified the decisions that were subsequently made, but they do not assist very much in deciding whether the notes are an accurate record of the interview. (iv) The judge also cast doubt on whether Mr. Newton had ensured that Mrs. Patel and the interpreter understood each other. He said: “There was no evidence that this was done. Furthermore, the interpreter was not named in a legible way, the only identification that was provided was his number and no documents have been disclosed to identify him or to show that he really was engaged or even existed.” (v) As to verifying the notes, the judge said: There was no evidence that the entire interview notes was [sic] read back to [Mrs. Patel] through the interpreter and her acceptance that each answer was accurate. Furthermore, there would not have been enough time, 52 minutes as recorded, for the entire interview as noted to take place through an interpreter and for the entire interview then to be read back to [her] through an interpreter.

[56]Finally, in paragraph 111, the judge referred to the fact that Immigration Judge Dineen had not been satisfied that Mrs. Patel had made the admissions recorded in the note or had understood its contents and appears to have treated the Secretary of State’s failure to adduce evidence bearing on that question as positive evidence that the admissions had not been made and the record not understood.

[57]The judge drew together the threads of his analysis of this part of the evidence in paragraphs 113-118 of the judgment. He concluded that the Secretary of State’s case had no foundation. He rejected the submission that Mrs. Patel had made the various admissions recorded in the note or that she could reasonably have been understood to have done so. On that basis he also rejected the submission that she was not interviewed on any other occasions and that she had not been bullied with a view to forcing from her an admission that her purpose in entering the UK was to take employment sewing curtains. He reached that conclusion on the basis of the following four strands of evidence (paragraphs 114-117):(i) Immigration Judge Dineen’s conclusion that Mrs. Patel was a credible and patently honest witness coupled with the Secretary of State’s failure to obtain the judge’s notes of evidence or to challenge his conclusion;

(ii) that fact that (in his view) the notes of the two interviews did not on their face indicate that Mrs. Patel was intending to take employment while in this country;

(iii) Mrs. Patel’s own evidence and the failure of Mr. Newton to give evidence explaining his side of the story. The judge said:

“he was evasive to the point of being untruthful about his part in the preparation of the explanatory statement and did not seek to explain its errors and admissions although these were within his own knowledge.” (iv) what the judge described as “Mr. Khan’s role in the attempted cover-up of the circumstances under which the further interview was conducted”

. They led him to the conclusion, to which I have already referred, that:

“When this evidence is considered as a whole, only one conclusion is possible: [Mrs. Patel’s] evidence in relation to this interview is to be accepted in its entirety and the SSHD’s case about it is to be rejected.”

[58]In my view the judge’s approach to the evidence relating to the formal interview was unbalanced and unsustainable. He may well have been right in identifying procedural errors and shortcomings of various kinds, but he does not at any stage appear to have asked himself whether, and if so to what extent, they undermined the essential reliability of the record. Instead, he treated any grounds for criticism of Mr. Newton as evidence that he was not telling the truth, that the note was unreliable and (ultimately) that there had been a conspiracy between the immigration officers to remove Mrs. Patel from the country unlawfully. It was particularly hard to complain that Mr. Newton had not been offered for cross-examination when those acting for Mrs. Patel had resisted directions that would almost certainly have resulted in all the witnesses having to give evidence in person and had not asked for Mr. Newton to be called for that purpose. Nor does the judge himself appear to have questioned Mr. Newton’s absence at any time during the hearing. Other Findings

[59]Mr. Kovats drew our attention to several other findings which support the conclusion that the judge was willing to draw the worst possible inferences from the evidence before him. It is sufficient to refer to the following examples: (i) In paragraph 133.8 of the judgment he inferred from a discrepancy between the notice of refusal of leave to enter and the first explanatory statement and from the fact that (as he had found) Mr. Khan had withdrawn the original decision on 28th May 2011 that:

“ . . . it would seem that both he and IO Newton were seeking to recast the cancellation of Mrs. Patel’s leave to enter on the grounds of a changed purpose to cancellation of her entry clearance for changed circumstances for tactical reasons associated with the forthcoming [tribunal] appeal.” (ii) In paragraphs 157-160 he criticised Mr. Khan’s willingness to withdraw the original decision as a means of disposing of her claim for judicial review with minimum expense, as described in the explanatory statement, which he found to be a further attempt to cover up the error in issuing the cancellation decision in the first place. (iii) In paragraph 181 he described the issue of a new decision by Mr. Khan on 8th August 2011 with an in-country right of appeal as “a further apparent attempt to forestall the judicial review scrutinising the detention decision-making process”, and in paragraph 192 he considered it to be an “inevitable conclusion” that Mr. Khan issued the decision “in an attempt to manufacture a defence to a judicial review claim that he must have considered would otherwise be likely to succeed”, despite the fact that on one view of the matter Mr. Khan was simply trying to be helpful. (iv) In paragraph 197 the judge again referred to Mr. Khan’s decision and to the reasons why he had sent a copy of it to the Treasury Solicitor. He said: “197. This decision is however relevant in proving insight into CIO Khan’s thinking about [Mrs. Patel’s] claims for damages based on her allegations of arbitrary, excessive and malicious interviewing techniques. He must have known that the decision had nothing to do with the judicial review. His only motive in sending a copy of it to the Treasury Solicitor can have been to provide a smoke screen in the hope that the judicial review claim would fail so that there would be no investigation of this allegation. The pleader on receipt of these instructions was clearly entitled to assume from them, as well as from a copy of his letter dated 28 May 2011, that that the judicial review was seeking relief against the decision that had refused her entry and that that relief was now academic because [Mrs. Patel] had received the so-called reconsidered decision that had granted her an in-country right of appeal. 198. Since the judicial review was not seeking relief in connection with that decision and since CIO Khan had in fact withdrawn that decision, CIO Khan appears to have issued the reconsidered decision and then forwarded it to the Treasury Solicitor in an attempt to have the judicial review withdrawn because he was concerned to avoid the scrutiny of the IOs’ behaviour when interviewing [Mrs. Patel].”

It is obvious that there may have been other explanations for Mr. Khan’s actions which were consistent with his acting honestly, if at times mistakenly, but that possibility seems to have eluded the judge, who did not consider it. Conclusion

[60]There is much more in the judgment to which I could refer, but I do not think that it is necessary or desirable to prolong this judgment by doing so. The critical evidence, to which I have already referred, relates to the central question that arises in this case, namely, whether Mrs. Patel did or did not in substance say the various things which she is recorded in the notes of the two interviews as having said. If, as the Secretary of State says, she did, the question arises whether they justified the steps that followed, namely, the cancellation of her leave to enter and her detention pending removal. If she did not, two possible conclusions might be reached:(i) that she said nothing at all about helping her sister and that both interview records have been fabricated;

(ii) that she did mention helping her sister, but that whatever she said was distorted in translation or misunderstood by the immigration officers, who accurately recorded what they understood to be her answers.

[61]The contemporaneous documents may well not tell the whole story, but there are too many uncertainties in this case to allow those questions to be answered with confidence on the basis of documentary evidence alone. Indeed, since the integrity of a number of immigration officers has been attacked with such vigour, I find it difficult to see how such questions could fairly be answered without hearing the witnesses on both sides. Despite the glaring shortcomings in the way in which the Secretary of State chose to advance her case, therefore, I do not think that the judge was entitled on the limited evidence before him to make findings of outright dishonesty, malicious behaviour and conspiracy on the part of the various individuals concerned. I would therefore allow the appeal.

[62]It does not follow, however, that Mrs. Patel was herself dishonest, since, as I have already indicated, I think there was room for misunderstanding in the course of the critical interviews. Without having heard her give evidence I do not think that it is possible to reject her case either. Regrettably, therefore, there will have to be a re-hearing. I have already expressed the view that the normal procedure of the Administrative Court is not suitable for a claim of this kind, which calls for pleading, disclosure and a trial at which the witnesses can give their evidence orally and be subjected to cross-examination. I would therefore remit the matter to the Queen’s Bench Division with a direction that it continue as a Part 7 claim. It will be for the Master to whom the case is assigned to give such further directions as are appropriate for its future conduct, including, if it be thought appropriate, its transfer to the county court. However, before embarking on further proceedings which are likely to be troublesome and expensive, the parties would do well to explore the possibility of resolving this dispute through mediation. The fact that I have found it unnecessary to deal with the appeal on damages should not be taken as any indication that I consider the award to have been appropriate.

Lord Justice Underhill :

[63]I agree that this appeal must be allowed. As the Vice-President has demonstrated, the Judge’s reasoning is profoundly unsatisfactory and unfair and does not come close to justifying the factual findings that he made. There are a few other comments that I would wish to add.

[64]First, although this is a particularly striking example of a claim being decided on paper where live evidence was plainly required, it is not in my experience unique, and I believe that parties and the Court sometimes accept too unquestioningly that a case that has been started under CPR 54 should simply proceed to a trial on the papers. Where a claim for judicial review throws up substantial issues of primary fact about the events on which the claimant relies, careful consideration needs to be given to whether those issues can fairly be decided without a process which gives the opportunity for cross-examination of witnesses. Judge Gore, to his credit, saw the problem, but unfortunately he yielded to the advocacy of the claimant’s counsel unopposed by any contrary submissions from the Secretary of State.

[65]Secondly, I must respectfully echo the Vice-President’s criticisms of the extraordinary failures of the UKBA and those advising it: but for a litany of failures on their part Judge Thornton would not have had the materials with which to build the edifice that he did, badly built though it was. I have already referred to their unthinking approach to the nature of the issues in the present proceedings. But I would also draw attention to the way in which the proceedings in the First-tier Tribunal were conducted. Not only was the initial explanatory statement carelessly put together and carelessly corrected, but the Secretary of State neither was represented nor put in any evidence at the second hearing before Immigration Judge Dineen. I do not know on what basis decisions are made about in which cases a Presenting Officer should appear; but presumably there is some kind of selection process based on the difficulty or importance of the case. I can understand how this case might not at first have seemed to be particularly tricky; but the questions raised by the Immigration Judge at the first hearing should have alerted UKBA to the fact that something had gone wrong and that the Tribunal would need the assistance of a Presenting Officer when the case came back. The problems with the explanatory statement - which were only ever explained in the most perfunctory way – were responsible for much of the suspicion and confusion that followed; and if Judge Dineen, faced with no submissions or evidence to contradict the claimant’s account, had not made the findings that he did it must be very questionable whether the judicial review proceedings would have gone any further.

[66]Thirdly, I was for some time concerned about whether the case should be remitted at all. On the material before us I find it very hard to see how the claimant could make out any case of the kind of dishonest conspiracy that the judge found. We have been given, as the judge ought to have been, a legible copy of the note of the original interview, which showed that it had not, as he thought, been redacted. And I agree with the Vice-President that the notes of the later interview show every sign of being genuine. But I am persuaded that simply to dismiss the claim would be unfair to the claimant. There are aspects of her treatment that may at the very least be regarded as heavy-handed. Although we did not hear full submissions about this, I am not at present satisfied that the answers that she gave in either interview should reasonably have been understood as giving grounds for cancellation of her leave to enter or her subsequent detention. Like My Lord, I would very much hope that the parties can reach a sensible compromise of the claim, through mediation or otherwise.

[67]Fourthly, I should record my view that even if the Judge had been entitled to make the findings of misconduct his assessment of damages was plainly unsustainable.

[68]Fifthly, in addition to his findings of misconduct on the part of UKBA the Judge found a breach of the claimant’s rights under

article 14 of the European Convention on Human Rights

by reason of the absence of tape-recording facilities for the formal interview; and £3,000 out of the total award of damages was attributed to this head. Mr Kovats in his skeleton argument gave six reasons why that finding was wrong in law, but they were not developed in oral argument (time being short). In my view it is sufficient to refer to only one, which Ms Jegarajah did not seek to rebut in her skeleton argument, namely that no such claim was pleaded. In the circumstances of this case that is a sufficient basis for allowing the appeal in this regard.

[69]Finally, I would wish strongly to endorse what Christopher Clarke LJ says about the importance of official documents, and changes to them, being properly signed and dated – and, where the signature is illegible (a failing for which I would be slow to blame others) being accompanied by the name in block capitals or by some code permitting identification if necessary.

Lord Justice Christopher Clarke :

[70]I agree with both judgments and, in particular, with the observations of my Lords about the obvious inappropriateness of having determined on paper a case involving an allegation (of which the Secretary of State had ample notice) of a fraudulent conspiracy the resolution of which was dependent on the evidence of Mrs Patel and the immigration officers concerned. I also agree that there were several other failings. These included the failure of the Secretary of State(a) to be represented or to adduce any evidence (not even a statement vouching the accuracy of the notes of interview) at the adjourned hearing before Judge Dineen;

(b) to adduce any evidence at the judicial review hearing from Immigration Officers Reeves, Norris or Menon or any explanation as to why (if it was the case) their evidence was not available;

(d) to seek to cross examine Mrs Patel;

(e) to produce a witness statement from the immigration officer concerned explaining who had compiled the two explanatory statements, as well as confirming that the statement that IO Newton had conducted the first interview was an error and explaining how the error came to be made; or (e) to produce a proper copy of the landing card.

[71]I cannot tell whether the failure to call any officer arose because of an assumption leading to a force of habit that oral evidence was inappropriate for judicial review or a policy that individual officers should not be called to give evidence. As to the former, whilst it is true that historically oral evidence has been exceptional, the range of cases in which judicial review is sought is such that there will be cases which cry out for oral evidence and cross examination. This was one. As to the latter, if there is such a policy, it should be reviewed. The result in the present case was very unfair to the immigration officers concerned, whom the judge has found to have been dishonest without their ever having been heard. It made unnecessary difficulty for the judge and was not in the interests of Mrs Patel or the community as a whole.

[72]It is not apparent to me(i) that anyone on the appellant’s side ever adequately engaged with the question as to how the case needed to be tried in the light of the allegations made and the issues to which they gave rise;

(ii) why no statement was produced from Reeves, Norris or Menon;

(iii) whether it ever dawned on anyone what the consequences might be of having no oral evidence;

(iv) why in a case such as this there was no presenting officer before Judge Dineen;

(v) why some of the Secretary of State’s responses were as perfunctory as they were.

[73]In short I regard the preparation on the Secretary of State’s side as marked by lamentable errors. Whilst I agree with my Lords that it was not open to the judge to reach the findings that he did, there is an obvious risk that if the Secretary of State fails, in a case such as this, to call all the relevant witnesses, or, at least, the most relevant ones, a tribunal or court may (whether rightly or wrongly) view her case with deep suspicion and is quite likely to accept the evidence of someone who has been called (if apparently credible) for want of hearing from a contradictor. In addition, gaps in the evidence and discrepancies in documents, which could readily have been explained or dealt with by those involved, may, absent any witness who can be questioned about them, acquire a sinister significance which they do not truly possess . It would not have involved much time or effort to adduce the evidence needed in this case and to deal explicitly and fully with the allegations made. It would not have taken very long to hear oral evidence. Even if the hearing had been prolonged into a second day the availability of oral evidence might have avoided the delay between the hearing and the judgment and would, quite probably, have avoided an appeal. If oral evidence had been before Judge Dineen there might well have been no basis for a judicial review.

[74]Another matter which the present case has underlined is the desirability of(a) accurate dating of documents, particularly when an earlier document is added to;

(b) identification of the immigration officers concerned in completing immigration documents; and, in particular, of the signatories of documents. Whilst there may, in limited circumstances, be relevant security considerations which require names not to be patent, a tribunal or court should be enabled readily to discover, where it is relevant, the identity of persons described in the documents only by numbers. Signatures should be accompanied by names (or other means of identification). Much time and controversy could have been avoided in the present case if signatures consisting of indecipherable scribbles had been so accompanied.

[75]It has not been necessary for us to rule on the judge’s findings on damages. It is sufficient for me to say that the amounts awarded appear to me extravagant and as over the top as the findings of fact which the judge has made. As Lord Justice Underhill has pointed out, the award under article 14 had the additional defect of being in respect of a claim which had never been advanced.

Cited in 1 later judgment

Talpada, R (On the Application Of) v The Secretary of State for the Home Department 2018