Shaw & Anor, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 42 (Admin)

[2013] EWHC 42 (Admin)Case No CO/12046/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/01/2013
Before
MR CLIVE LEWIS QC(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN (on the application of ZONITE DAVINE SOPHIA SHAW and JAVIAN ANTHONY MORTLEY SHAW)ClaimantsTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Mikhil Karnik (instructed by Fadiga & Co) for ClaimantsMr Sarabjit Singh (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 19 th December 2012
Judgment

Clive Lewis QC:

[1]This is a claim by Zonite Shaw and her son Javian Shaw. The claim relates to decisions taken in September 2010 to cancel their leave to enter the United Kingdom and to remove them to Jamaica. The original claim sought, amongst other things, orders quashing the cancellation of leave and requiring the Defendant to return the Claimants to the United Kingdom and to provide them with an in-country right of appeal. The Defendant in fact agreed to return the Claimants to the United Kingdom and she did then reconsider the case and took a fresh decision cancelling the Claimants’ leave to remain. There was an appeal, based on a claim that return to Jamaica would breach Article 8 of the European Convention on Human Rights (“ECHR”). That claim was ultimately dismissed. The main remedies sought by the Claimants have, therefore, become academic. However, the Claimants also sought damages in respect of what they say was their unlawful detention and breach of Article 8 ECHR. Mitting J. granted permission to apply for judicial review on 23 March 2011 noting that there were two potentially live issues, namely damages and costs.[2]The claim has continued as a damages claim. In particular, the Claimants contend that the decisions of 11 September 2010 to cancel their limited leave to remain in, and to refuse them leave to enter, the United Kingdom and the directions that they be removed to Jamaica were unlawful. They contend that the Claimants were detained in fact from 11.25 a.m on 11 September 2010 until they left the plane in Jamaica. They say that, as the cancellations and refusals of leave and the removal directions were unlawful, there was no lawful basis for their being detained when being taken to board the plane and during the flight back to Jamaica. They claim that they are therefore entitled to claim damages for false imprisonment for that period of detention which amounted to some 10 hours. The principal grounds upon which the Claimants say the decisions to cancel and refuse leave and to remove them were unlawful are that:(1) they had an in-country right of appeal which they were unable to exercise because of the removal;(2) the written notice of the decisions did not include, and were not accompanied by, a statement of the grounds on which they could appeal and did not say whether the appeal could be brought while in the United Kingdom;(3) the cancellation of their limited leave was not authorised by a chief immigration officer as required by the Defendant’s policy, that is para 3.4 of chapter 1 of section 9 of the Immigration Directorates’ Instructions;(4) the decision to cancel their leave was irrational;(5) the Defendant failed to have regard to the best interests of the second Claimant, as a child, having regard to section 55 of the Borders, Citizenship and Immigration Act (“the 2009 Act”);(6) the issuing of removal directions without giving the Claimants adequate time to seek legal advice was contrary to the Defendant’s own policy or to the common law right of access to the courts;(7) removal breached their right to private life under Article 8(1) ECHR and that removal was not justified under Article 8(2) as either (a) removal was not in accordance with law because of the invalidity of the removal directions as a matter of domestic public law or (b) removal was disproportionate in all the circumstances.[3]In addition to claiming damages for unlawful detention, the Claimants also contend that their removal on 11 September 2010 was a breach of Article 8 ECHR which calls for a remedy in damages.[4]The Claimants also contend that if their public law grounds of challenge are successful, there was also a breach of Article 6 ECHR in that there was a failure to permit a proper determination of their civil rights before they were removed and that damages is an appropriate remedy for that breach. The First Claimant also contends that she was in fact detained on 7 September 2010 when she attended at Gatwick Airport for interview and that detention was unlawful as no written reasons were given. Both Claimants also claim they were detained on 11 September 2010 when they again attended Gatwick Airport and were being interviewed in the period from about 9 a.m. to 11.25 a.m. I gave permission to amend the claim form to add the Article 6 ground of challenge and the challenges to the alleged detentions on 7 and 11 September 2010.

THE FACTS

[5]The First Claimant, Ms Shaw, is a national of Jamaica. She first arrived in the United Kingdom on 19 October 2002 and was granted leave to enter as a visitor. On 23 June 2003 her leave to remain was varied to leave to remain as a student. That leave was extended thereafter. The most recent extension was granted on 29 September 2009 and the leave granted was valid until 31 October 2011. As Ms Shaw was granted leave to remain as a student she was only permitted to work up to 20 hours a week in term time. On 19 December 2005, Ms Shaw gave birth to her son Javian, who is the second Claimant. He too is a Jamaican national although born in the United Kingdom. He was given limited leave to remain in the United Kingdom as the dependant of his student mother.[6]In the summer of 2010, Ms Shaw and her son returned to Jamaica for a family funeral. They returned to the United Kingdom on 31 August 2010 and landed at Gatwick airport. Ms Shaw was questioned at the desk in the arrivals terminal. The file note records that on arrival Ms Shaw stated that she was a full time student attending Birmingham Training College but was unable to name the full title of the course that she was studying and could not state the name of the qualification she was studying for. She said that she lived as a member of her cousin’s household and did not do any work or claim benefits. The officer was not satisfied with her answers. Ms Shaw was then detained for further examination.[7]During that subsequent interview on 31 August 2010 Ms Shaw said that she was studying. She said that worked for two hours a week at a cleaning job. She was asked if she did other work and said that she had another temporary job during the college vacation. She said that she worked a maximum of 20 hours a week during term time. Ms Shaw and her son were given temporary admission to enable further checks to be made.[8]A further interview was conducted on 7 September 2010. During that interview, Ms Shaw said that she had been a student for seven and a half years. On further questioning, however, she admitted that she had been working two hours a day from Monday to Friday for a cleaning company (not two hours a week as she had previously claimed). She also admitted working for up to 32 hours a week for a catering firm. She admitted that she knew that this was contrary to the immigration legislation. She said she was working to gain experience and knowledge of how to run a business. She said she wanted to help her family back home. She said that she wanted to apologise and she thought she deserved a second chance. She also confirmed that she and her son had no contact with the second Claimant’s father.[9]The case was referred to a chief immigration officer and an inspector later on 7 September 2010. The contemporaneous notes record that the case was discussed at some length. The notes record that, on the face of it, Ms Shaw and her son were cases for refusal because of the change of purpose for their being in the UK. The notes record that the chief immigration officer and the inspector authorised refusal under paragraph 321A and 320 (5) of the Immigration Rules and, in view of her deception as to the number of hours she worked, noted that reliance on rule 320(7b) of the Immigration Rules was also appropriate.[10]Following that discussion, the immigration officer decided to give Ms Shaw and her son temporary admission. The First Claimant was to attend again at Gatwick Airport with her son on 11 September 2010 and was asked to bring her college certificates. It seems, from the contemporaneous records, that the immigration officer had in mind issuing the decision cancelling the Claimants’ leave and refusing leave to enter if, having seen the certificates, the officer remained of the view that the First Claimant was not seeking to study in the UK. There is no record, and no evidence to suggest, that the First Claimant and her son were told on 7 September 2010 that their leave might be cancelled and that they might be removed on 11 September 2010.[11]Ms Shaw attended again at Gatwick Airport on the morning of 11 September 2010 with her son. She had brought her college certificates with her as requested. Some of these related to cleaning and support services, food hygiene and first aid and which appeared to relate to her employment. The remainder related to basic intermediate skills in information technology and two certificates relating to marketing and business communication. The notes confirm that the certificates were considered but they confirmed the immigration officer’s view that the purpose of Ms Shaw coming to the United Kingdom was, in fact, employment rather than study. At 11.25 a.m. on the 11 September 2010, notices of cancellation of leave and refusal of leave to enter were served on Ms Shaw and her son, together with notice of the directions that they be removed to Jamaica at 12.45 pm on that day, 11 September 2010. The reasons were explained and the note records that Ms Shaw had confirmed that she understood.[12]The notice of cancellation and refusal of leave to enter says as follows:
“On the 29 September 2009 you were given leave to remain in the UK as a student but I am satisfied that there has been such a change of circumstances in your case since the leave was given that it should be cancelled. The change of circumstance in your case is that you obtained your leave to enter and remain as a student but you are now seeking to enter for the purpose of full time employment. I have reached this decision because you have admitted to working full time for The Banquets Group at Banquets Chicken limited in Birmingham for up to 32 hours per week. I do not accept your assertion that you have been studying since 2003 since you are unable to provide any evidence of any academic achievement apart from certificates relating to cleaning and support services, food hygiene and first aid which relate to the employment you have admitted to undertaking both full and part time while you were in the UK and not to any long term academic goal. The certificates you presented from 2007 to date do not reflect the extended period of study you claim to have undertaken since they relate to basic and intermediate IT skills and two unremarkable certificates in marketing and business communication which indicate an average level of ability. I therefore cancel your continuing leave under paragraph 2A(8) of Schedule 2 to the Immigration Act of 1971 and paragraph 321A(1) of the Immigration Rules (HC395). Furthermore you are now seeking entry for the purpose of employment but you are a visa national and you have failed to produce a passport or other identify document endorsed with a valid and current UK entry clearance issued for the purpose for which entry is sought. I therefore refuse you leave to enter under paragraph 320(5) of the Immigration Rules (HC395). Furthermore in view of your repeated attempts at deception when questioned about your hours at your second job for We Clean limited, any future applications for leave to enter/remain in the UK will be refused under paragraph 320(7b) of the Immigration Rules for a period of one year following your departure from the United Kingdom.”
[13]The final part of the form said that the Claimant’s right of appeal was limited under sections 88 and 89 of the Nationality and Immigration and Asylum Act 2002 (“the 2002 Act”) as appropriate as it was taken on the grounds that “you” (and then a tick was placed in a box against the following words) “do not have an entry clearance valid for the purpose for which your application for leave to enter was made”.[14]A notice of refusal was also served on the second Claimant noting that he had been given leave to enter or remain as the dependant of his student mother but that circumstances had changed as the purpose for which he sought leave had changed as he now sought leave to enter for the purpose of being the dependant of his mother who was in full-time employment. The leave was cancelled under paragraph 2A(8) of Schedule 2 to the Immigration Act 1971 (“the 1971 Act”) and paragraph 321(A)(1) of the immigration Rules. Furthermore leave to enter was refused as he had no passport or entry clearance for the purpose for which he now sought to enter the UK.[15]At 11.40 a.m. on 11 September 2010, Ms Shaw and her son were then escorted by the immigration officer and two members of the security staff to gate 31 in order to embark on the 12.45 flight to Montego Bay in Jamaica. Ms Shaw was allowed to make one phone call to her aunt who had travelled with her to Gatwick Airport that morning. The aunt tried, unsuccessfully, to contact immigration officials. She contacted a lawyer. She says that he called back to say that the immigration authorities had told him that Ms Shaw and her son were already on the plane and were ready to depart. The Claimants were returned to Jamaica on 11 September 2010.[16]Judicial review proceedings were commenced on 18 November 2010. The Defendant, in her acknowledgement of service, indicated that she was prepared to reconsider the Claimants’ case and return them to the United Kingdom for the purposes of that reconsideration. The Claimants did return to the United Kingdom. The Defendant reconsidered their cases and took a fresh decision to cancel their leave. They appealed to the First-tier Tribunal. That tribunal found that there was no basis for an appeal on any grounds under the Immigration Rules and the only issue was the Claimants’ claim that return to Jamaica would breach their rights under Article 8 ECHR. In a decision promulgated on 26 May 2011, the First-tier Tribunal upheld that claim. The Upper Tribunal then considered an appeal by the Secretary of State. In a determination promulgated in September 2011, it found the First-tier Tribunal had erred in law. It retook the decision and decided that there would be no breach of Article 8 if the Claimants were to be returned to Jamaica. The Claimants had a private life, but not a family life, in the United Kingdom but the return to Jamaica would be a proportionate interference with that right to private life. The Claimants appealed to the Court of Appeal but that Court dismissed their appeal on 13 December 2012: see ZS (Jamaica) and Another v Secretary of State for the Home Department [2012] EWCA Civ. 1639.

THE LEGAL FRAMEWORK

[17]Section 3(1)(1) of the 1971 Act provides, so far as material, that:
“(1) Except as otherwise provided by or under this Act, where a person is not a British citizen – (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely – (i) a condition restricting his employment or occupation in the United Kingdom…..” (i) a condition restricting his employment or occupation in the United Kingdom…..”
[18]Section 4 of the 1971 Act gives effect to Schedule 2. Paragraph 2A of that Schedule applies to a person who has arrived in the United Kingdom with leave to enter given before his arrival in the UK.

(a) of Schedule 2 to the 1971 Act provides that:

“(2) He may be examined by an immigration officer for the purpose of establishing – (a) whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled….”
[19]Paragraph 2A(2A) of Schedule 2 to the 1971 Act provides that where a person’s leave to enter derives by virtue of section 3A(3) of the 1971 Act from an entry clearance, he may also be examined: “..for the purpose of establishing whether the leave should be cancelled on the ground that the person’s purpose in arriving in the United Kingdom is different from the purpose specified in the entry clearance”.[20]Paragraphs 2A(8) and (9) of Schedule 2 to the 1971 Act provide as follows: “(8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter. “(9) Cancellation of a person’s leave under sub-paragraph (8) is to be treated for the purpose of this Act and Part 5 of the Nationality, Immigration and Asylum Act 2002 as if he had been refused leave to enter at a time when he had a current entry clearance”.[21]Rule 321A of the Immigration Rules provides, amongst other things, that a person’s leave to remain may be cancelled if there has been such a change of circumstances in that person’s case since the leave was given that it should be cancelled.[22]Rule 320 of the Immigration Rules deals with refusals of leave to enter the United Kingdom. Leave may be refused on, amongst other grounds, the failure to produce a passport or other identity document endorsed with a valid entry clearance issued for the purpose for which entry is sought. Furthermore, rule 320(7b) provides, amongst other things, that leave may be refused where the applicant has previously breached UK immigration laws by using deception in an application for entry clearance or leave to enter or remain (whether the attempt was successful or not). The relationship of the provisions governing cancellation of leave and refusal of leave to enter were considered fully in Secretary of State for the Home Department v Boahen [2010] EWCA Civ. 585 to which I was referred.[23]Finally, the 2002 Act deals with appeals against such decisions. Section 82 of the 2002 Act provides that a person may appeal against an immigration decision and then defines what constitutes an immigration decision for those purposes. It includes a refusal of leave to enter. Section 84 of the 2002 Act sets out the grounds for an appeal. Section 89 of the 2002 Act provides that:
“(1) A person may not appeal against a refusal of leave to enter the United Kingdom unless – (a) on his arrival in the United Kingdom he has entry clearance, and (b) the purpose of his entry specified in the entry clearance is the same as that specified in his application for leave to enter.

(g) ”

[24]The grounds referred to in section 84(1)(b)(c) and (g) are, respectively, that the decision involves unlawful race discrimination, or is unlawful as it is in breach of section 6 of the Human Rights Act 1998 as it breaches a Convention right, or the decision would breach the United Kingdom’s obligations under the Refugee Convention.[25]Section 92 of the 2002 Act provides, so far as material, that: “(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. “(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j). “(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if –(a) at the time of the refusal the appellant is in the United Kingdom, and(b) on his arrival in the United Kingdom the appellant had entry clearance. “(3A) But this section does not apply by virtue of subsection (3) if subsection (3B) or (3C) applies to the refusal of leave to enter. “(3B) This subsection applies to a refusal of leave to enter which is a deemed refusal under paragraph 2(A)(9) of Schedule 2 to the Immigration Act 1971 (c.77) resulting from cancellation of leave to enter by an immigration officer – (a) under paragraph 2A(8) of that Schedule, and (b) on the grounds specified in paragraph 2A(2A) of that Schedule. ….. “(4) This section also applies to an appeal against an immigration decision if the appellant - (a) has made an asylum claim or a human rights claim, while in the United Kingdom….. ” …..[26]The Immigration (Notices) Regulations 2003 (“the Regulations”) as amended provide that notice of an immigration decision must be given. Regulation 5 deals with the contents of the notice. Regulation 5(1) provides that it must include or be accompanied by a statement of the reasons for the decision. Regulation 5(3) provides that, subject to paragraph 5 (6), the notice must include or be accompanied by a statement of(a) the person’s right of appeal,(b) whether or not the appeal may be brought while in the United Kingdom(c) the grounds on which an appeal may be brought and(d) the facilities for advice and assistance in connection with the appeal. Regulation 5(6) however provides, amongst other things, that the notice does not need to comply with Regulation 5(3) where the right of appeal may only be exercised on the grounds referred to in section 84(1)(b), (c) or (g) by virtue of section 89(2) of the 2002 Act.

THE GROUNDS OF CHALLENGE

[27]Dealing with the first two grounds of challenge together, the Claimants contend that their leave to remain was cancelled pursuant to paragraph 2A(8) of Schedule 2 to the Act on the grounds set out in paragraph 2A(2)(a), namely that there had been a material change of circumstances. They contend that that meant that they had a right of appeal which could be exercised within the United Kingdom, by virtue of section 92(1) and (3) of the 2002 Act and that was denied to them. Further, they say that the notice of cancellation and refusal of leave to enter did not comply with the requirements of regulation 5(3) of the Regulations. For those reasons, they contend that the cancellation of leave and the refusal of leave to enter were unlawful.[28]The Defendant contends that, in fact, the leave to remain was cancelled, and leave to enter refused, because the purpose of Ms Shaw in coming to the United Kingdom was different from the purpose in the entry clearance. She had leave to remain as a student but was seeking to enter for the purposes of full-time employment. Leave was therefore cancelled on the ground set out in paragraph 2A(2A) of Schedule 2 to the Act. In those circumstances, says the Defendant, the right of appeal is limited by section 89 of the 2002 Act. The Claimants had no in-country right of appeal at that stage by reason of section 92(1), (3) and (3B) and, further, that in those circumstances regulation 5(3) does not apply by reason of regulation 5(6) of the Regulations.[29]This dispute turns, essentially, on the question of what was the basis upon which the Claimants’ leave was cancelled. In my judgment, and looking first only at the notice of refusal dated 11 September 2010 addressed to Ms Shaw, the basis upon which the leave was being cancelled under paragraph 2A(8) of Schedule 2 to the Act was that Ms Shaw’s purpose in coming to the UK on 31 August 2010 was to work not to study. I recognise that the notice sometimes refers to a material change of circumstances and sometimes to the purpose of entry. However, read as a whole, the clear, factual basis for the decision to cancel the leave was the view that the immigration officer had formed that Ms Shaw had obtained leave to enter and remain as a student but was now seeking to enter for the purpose of full time employment. That appears, in particular, from the second paragraph of the notice. The immigration officer explains why that conclusion has been reached (her admission that she worked full-time for up to 32 hours a week) and why it was not accepted that Ms Shaw was seeking to study. The reason for the cancellation is the reason set out in paragraph 2A(2A) of that Schedule.[30]That conclusion is reinforced by two further considerations that appear from consideration of the notice read as a whole. First, having cancelled the leave to remain, the notice goes on to deal with the fact that Ms Shaw is seeking entry to the UK for the purpose of employment but does not have permission to enter for that purpose and so, leave to enter was refused on the basis of rule 320(5) of the Immigration Rules. The reasons for that refusal are consistent with the fact that the basis for the cancellation of leave is the difference in purpose between the leave that Ms Shaw had - leave to remain as a student- and what she was seeking leave to enter for, namely employment. Secondly, in describing the right of appeal, the notice says that the right is limited under section 89 of the 2002 Act because the Claimant did “not have an entry clearance valid for the purpose for which your application for leave to enter was made.” Taking all those factors together, the notice, in my judgment, demonstrates that the ground upon which Ms Shaw’s leave was cancelled was that set out in paragraph 2A(2A) of Schedule 2 to the Act, namely that her purpose in arriving in the UK was different from the purpose specified in the entry clearance.[31]Similarly, in my judgment, the notice of 11 September 2010 addressed to the second Claimant also makes it clear that the basis for the cancellation of leave was a change in purpose. The second Claimant obtained leave to enter as the dependant of his mother who was a student but was now seeking to enter for the purpose of being a dependant of his mother whilst in full-time employment. The notice also refused leave to enter under rule 320 (5) of the Immigration Rules because of the difference in purpose and also attaches the same caveats in relation to the rights of appeal as appear in the notice addressed to the First Claimant. The ground upon which the second Claimant’s leave was cancelled was that set out in paragraph 2A(2A) of Schedule 2 to the Act, namely that his purpose in arriving in the UK was different from the purpose specified in the entry clearance.[32]In those circumstances, I accept the Defendant’s contention that the Claimants’ right of appeal was limited by section 89 of the 2002 Act. I further accept that, at that stage, any right of appeal was only exercisable from outside the United Kingdom by reason of section 92(1), (3) and (3B) of the 2002 Act (as, at that stage, the Claimants had not made a human rights claim and so section 92(4)(a) of the 2002 Act did not apply). Furthermore, in those circumstances, the requirements of regulation 5(3) of the Regulations did not apply by reason of regulation 5(6) of the Regulations. The cancellation of leave, the refusal of leave to enter and the removal directions were not, therefore, flawed by reason of the fact that the Claimants were not given an in- country right of appeal at that stage nor because the written notices failed to comply with the relevant regulations.[33]Next the Claimants contend that the decisions to cancel their leave were not authorised by a chief immigration officer. Schedule 2 to the 1971 Act confers the power to cancel leave upon an immigration officer but paragraph 3.4 of chapter 1 of section 9 of the Immigration Directorates’ Instructions provides that the “power to cancel continuing leave is not to be exercised by an immigration officer acting on his own, the authority of a chief immigration officer or an immigration inspector must be obtained”. The Claimants point to a file copy of a document where the decision is recorded as being taken on the 11 September 2010 but the signature of the chief immigration officer is dated 12 September 2010. The Claimants say that this must mean that the authorisation was given after the decision was taken and after the removal had been carried out.[34]The short answer to this ground is that, as a matter of fact, a chief immigration officer and an immigration inspector did authorise cancellation of leave on 7 September 2010. The contemporaneous notes show that, at 17.15 p.m. on 7 September 2010, the immigration officer referred the case to a chief immigration officer and an immigration inspector and the case was discussed at some length. The chief immigration officer and the inspector authorised refusal. The notes refer to the fact that the Claimants are “on the face of it refusals as a change of purpose”. The notes then record that the chief immigration officer and the inspector authorised refusal and referred to one of the Immigration Rules under which leave could be cancelled and another under which leave to enter could be refused. In my judgment, it is clear that the immigration officer did not exercise the power to cancel leave alone but had the authorisation of a chief immigration officer and an inspector and that authorisation was granted on 7 September 2010 before the decision was taken.[35]The Claimants next contend that the decisions to cancel their leave were irrational. They say that the First Claimant was in fact a student, albeit that she was working in excess of the hours permitted. They say that a different, less draconian decision than the cancellation of leave would have been appropriate and, in argument, gave examples of such decisions as being the varying of the leave to remain or curtailing the hours the First Claimant was permitted to work. In my judgment, the question is whether the decision to cancel the Claimants leave was, on the material available before the immigration officer, irrational. In my judgment, it was not irrational or unreasonable. The First Claimant had admitted that she was working up to 32 hours a week for a catering company. There was little evidence of any academic progress being made as one would have expected if, as the First Claimant said, she had been studying for seven and a half years. In my judgment, it was open to the Defendant to conclude, on the material available, that the First Claimant was not seeking to come to the UK to study but was seeking to work full-time instead and to cancel the leave for that reason.[36]Next, the second Claimant contends that the decision to cancel his leave to remain and to refuse him leave to enter was unlawful as the immigration officers acting on behalf of the Defendant failed to have regard to what was in his best interests as a child. He relies upon section 55 of the 2009 Act. In my judgment, this ground of challenge is not made out. The immigration officers were well aware that the second Claimant was, at the time, just over 4 and ½ years old and that he was dependant on his mother. They knew he was a Jamaican national, not a British national. They knew that he had no contact with his father and that the Claimants had family (grandparents and cousins) in Jamaica. In my judgment, the inference from the evidence is that the Defendant considered that the best interests and the welfare of the second Claimant were best served by him remaining with his mother. There were no reasons why ensuring that the second Claimant returned with his mother to Jamaica would conflict with his best interests. I base my judgment on the position in September 2010 and the information then before the immigration officers. However, I note, for completeness, that when the Upper Tribunal considered the matter on September 2011, it concluded that it had not been shown that the Second Claimant’s best interests and welfare require that he remain in the United Kingdom (see paragraph 107 of the judgment of the Upper Tribunal). The Court of Appeal considered that any other conclusion on the evidence before the Upper Tribunal “would have been, to say the least, surprising” (paragraph 31 of the decision of the Court of Appeal in ZS (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ. 1639). In my judgment, the position was in fact the same one year earlier in September 2010. There is no basis for concluding that the decisions of the immigration officers failed to have due regard to the Second Claimant’s best interests and welfare.[37]Next, the Claimants contend that the circumstances of their removal infringed the Defendant’s policy on giving a minimum of 72 hours notice before issuing removal directions and the constitutional right of access to a court. Dealing first with the policy, the Claimants rely upon the policy on Judicial Review and Injunctions which replaced Chapter 60 of the Enforcement Instructions with effect from 26 July 2010. Section 2.1 provides that a minimum of 72 hours (to include at least 2 working days) must generally be allowed between informing a person of their removal directions and the removal itself. However, that policy is subject to exceptions set out in section 3 of the policy. Paragraph 3.1.6 provides that in port cases, if removal takes place within 7 days of refusal, the policy does not require 72 hours notice to be given. Technically, the Claimants are port cases. They sought to enter the United Kingdom at an airport. They were granted temporary admission. They were refused leave to enter on 11 September 2010 and were removed within seven days of that refusal. The terms of the policy itself did not require that they be given a minimum of 72 hours notice.[38]There is, however, a separate question of whether the Claimants were entitled under the common law to a right of access to justice, as described in R (Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ. 1710. I should say first that I propose only to deal with the particular facts of this case. Nothing in this judgment is intended to apply to the generality of cases where a person arrives in the United Kingdom and is refused leave at the port. Nor is my conclusion based on any general concept that those who in fact are resident in the United Kingdom and are returning to the United Kingdom form a group who enjoy such a right. Nor, for reasons which will become clear, is it necessary to consider the precise scope of the right of access to justice in this case.[39]On the particular facts of this case, I am satisfied that the Claimants were entitled under the common law to access to justice in the sense of being given an opportunity to seek legal advice before they were removed and they were not in fact given that opportunity. I reach that conclusion for these reasons. First, the Second Claimant was at the time a 4 and a half year old child who, although not a British national, had been born in the United Kingdom and had lived here all his life. His mother, the First Claimant, had in fact been living in the United Kingdom since 2002 pursuant to a series of grants of leave to remain. Secondly, they were given temporary admission on two occasions and were permitted to be in the United Kingdom for a further 11 days from 31 August 2010 to 11 September 2010. Thirdly, and related to the second point, there is nothing in the evidence to suggest that the immigration officers considered that there was any urgent need for removal or that there was any, or any good, reason why the Claimants could not have been given an opportunity to seek legal advice before removal. Rather, the facts were these. On 31 August 2010, they were both given temporary admission to the United Kingdom while further checks were carried out. On 7 September 2010, the First Claimant attended, as requested, at Gatwick for interview. The decision to cancel the Claimants’ leave to remain was authorised on 7 September 2010. However, there is nothing in the evidence to suggest that the First Claimant was told this on 7 September 2010. Nor was there any apparent urgency requiring immediate removal. Rather, the Claimants were again granted temporary admission and Ms Shaw was again asked to attend at Gatwick airport with her son on 11 September 2010 and to bring her college certificates with her. Ms Shaw and her son went to Gatwick on 11 September 2010. The immigration officer considered the certificates that had been provided. It was only at that stage, at 11.25 a.m. on 11 September 2010, that the immigration officer informed the Claimants that their leave to remain was cancelled, leave to enter was refused and removal directions were served on them. The removal directions directed that the Claimants be removed on the 12.45 p.m. flight to Jamaica, just an hour and 20 minutes later. They were escorted by the immigration officer and two security officers to the gate for boarding at 11.40 a.m. They had time only to make one telephone call to Ms Shaw’s aunt. No explanation has been given as to why it was considered necessary to remove them immediately on 11 September 2010. Given the length of time that the Claimants had, in fact, been in the United Kingdom, and the fact that they were twice given temporary admission enabling them to be in the United Kingdom again from 31 August 2010 to 11 September 2010 while further checks were carried out, and given the absence of any indication of any need for urgent removal or any reason why they could not be given time to seek legal advice before removal, these two Claimants were, in my judgment, entitled to be given an opportunity to seek access to legal advice before their removal took place. They were in fact given no opportunity to seek any legal advice or assistance in relation to their removal. The removal directions were, in my judgment, unlawful for the simple reason that the Defendant failed to give the Claimants any time at all to consider whether to seek legal assistance. I deal with the question of remedies later in this judgment.[40]The Claimants also contend that the removal breached their right to respect for private or family life under Article 8(1) ECHR and was not justified under Article 8(2) ECHR. First, as at September 2010, the Claimants had not established any family life with other persons in the UK. Their family life was with each other but returning them both to Jamaica would not constitute an interference with that family life. They had, however, established a private life in the United Kingdom. Secondly, in my judgment, removal to Jamaica would constitute an interference with that private life but would serve a legitimate aim, the maintenance of an effective immigration policy, and would be proportionate in all the circumstances. I base my conclusions on the evidence as at 11 September 2010. However, I note that the Upper Tribunal reached similar conclusions when it considered the matter in September 2011 (see paragraphs 108 to 115 of the judgment of the Upper Tribunal). There is, in my judgment, no material difference between September 2010 and September 2011 in relation to the issues of legitimate aim and proportionality. However, in order for the removal in September 2010 to be justified under Article 8(2) ECHR, it would have to be done in accordance with law. As I have held above, the removal was not in accordance with domestic law as the Claimants were not given any opportunity to seek access to justice. For that reason, and that reason only, the removal was also in breach of Article 8(1) ECHR and could not be justified under Article 8(2) ECHR.[41]In relation to the other claims, first, there is no basis for contending that there was a breach of Article 6 ECHR. Determination of immigration claims do not constitute the determination of civil rights for the purpose of Article 6 ECHR: see Maaouia v France [2001] 33 EHRR 42. In any event, the Claimants were in fact returned to the United Kingdom and their claims under the ECHR have been considered by the courts. No remedy in damages would be appropriate. Secondly, there was no detention of the First Claimant on 7 September or of the Claimants on 11 September 2010 (prior to 11.25 a.m.) when they attended at Gatwick airport. Mr Karnik for the Claimants says that the form of interview on 7 and 11 September 2010 was the same as on 31 August 2010. The Claimants were detained on 31 August 2010 and so must have been detained when interviewed on 7 and 11 September 2010. In my judgment, that factual premise is wrong. The First Claimant attended voluntarily in order to co-operate with the immigration authorities on both 7 and with her son on 11 September 2010. Detention was neither necessary nor occurred during the interviews as the First Claimant was content to be present and to co-operate. The Claimants also raised a number of other points in their grounds of claim and their skeleton argument. I have considered them all but none of them, in my judgment, establish any additional ground for suggesting that the cancellation of leave, the refusal of leave to enter or the removal directions were unlawful.

THE REMEDIES

[42]In the light of the above, the removal directions served on 11 September 2010 were unlawful. Any public law remedy would, however, be academic as the removal directions have been implemented and, more fundamentally, the Claimants were subsequently returned to the United Kingdom. Their case was reconsidered. A fresh decision cancelling their leave to remain was taken. That was challenged on human rights ground and was the subject of an in-country right of appeal. Public law remedies in relation to the decisions and the removal directions served on 11 September 2010 are therefore academic and no longer appropriate. Rather, this claim has proceeded as a claim for damages principally for unlawful detention and breach of Article 8 ECHR.[43]In relation to detention, the period at issue is the period of 10 hours from 11.25 a.m. on 11 September 2010 when the Claimants were told they were to be removed and were then escorted to the gate until the flight landed in Jamaica and they were able to leave the plane. The Claimants claim for false imprisonment. There are two ingredients to the tort of false imprisonment: the fact of detention and the absence of lawful authority to justify it: R (Lumba) v Secretary of State for the Home Department [2012] A.C. 245 at paragraph 65. The Defendant accepts that the Claimants were in fact detained from 11.25 a.m. and whilst they were on the flight as they were placed there against their will. I have proceeded on the basis of this concession and I have not been shown authorities dealing with the question of what constitutes detention. There was no lawful justification for their being placed on the flight on 11 September 2010 as the removal directions were unlawful as the Claimants were entitled to, but did not have, a period of time to enable them to obtain access to legal advice. The two elements of the tort of false imprisonment are therefore made out. The parties are agreed that, in the light of Thompson v Commissioner of the Police of the Metropolis [1998] Q.B. 498, and bearing in mind inflation, the appropriate measure of damages is in the region of about £4,500 for the first 24 hours. In the present case, there were 10 hours of detention. The appropriate figure for each Claimant is in my judgment £2,000.[44]The Claimants also claim damages for breach of Article 8 ECHR and have lodged a schedule setting out a number of heads of loss. By reason of section 8(3) of the Human Rights Act 1998, damages should only be awarded in respect of an act which is unlawful as it involves a breach of a Convention right if it is necessary to afford just satisfaction taking account of all the circumstances of the case including any other remedy or order made and the consequences of any decision of a court.[45]In my judgment, in all the circumstances of this case, it is not necessary to award damages to ensure just satisfaction for the breach of Article 8 ECHR. I reach that conclusion for the following reasons. First, I have found that there was a breach of Article 8 ECHR. However, the nature of the breach was that the Claimants were removed from the United Kingdom otherwise than in accordance with law as they had not had, as they should have had under domestic law, the opportunity to seek access to legal advice. Secondly, the Claimants were in fact returned to the United Kingdom and they have in fact had the opportunity to argue their substantive human rights claim before the courts and tribunals in this country. That, in itself, in my judgment, largely remedies the breach of Article 8 that occurred. Thirdly, so far as the removal involved unlawful detention, they have obtained an appropriate remedy in damages. Fourthly, I have considered the claim for anxiety and distress and embarrassment during the flight, and in particular, the matters referred to in paragraph 13 of Ms Shaw’s witness statement but, in my judgment, given the nature of the breach of Article 8 that occurred, the evidence of the distress suffered does not justify a further award of damages. As for the unquantified claim for psychological damage and loss of education, there is no evidence before this court of any trauma or psychological damage being suffered by the Second Claimant. I also note in this regard the findings of the Upper Tribunal. None of the other heads of damage listed in the schedule in my judgment call for any award of damages for breach of Article 8 ECHR in order to ensure just satisfaction for the Claimants. The finding of a breach is sufficient in the circumstances of this case.[46]The Claimants also claim £78,540 for aggravated or exemplary damages. The only authority to which I was referred was Thompson v Commissioner of the Police of the Metropolis [1998] Q.B. 498. That sets out the general position that aggravated damages should only be awarded where there are aggravating features about the Defendant’s conduct which justify such an award. Broadly, exemplary damages may be awarded in circumstances where there has been conduct which is oppressive or arbitrary or unconstitutional. On the facts of this case, there is no basis at all for considering an award of aggravated or exemplary damages. The actions taken were, in my judgment, wrong and unlawful in one respect, namely the implementation of removal directions without giving the Claimants an opportunity to seek access to legal advice. The conduct complained of however, does not justify any award of aggravated or exemplary damages. There were no aggravating features on the part of the immigration officers concerned. There was no oppressive or arbitrary behaviour. I recognise the constitutional importance of the right of access to justice but, even though the removal directions impeded the exercise of that right, it would not be correct to categorise the action that occurred in this case as unconstitutional in the sense that term is used in relation to exemplary damages.

CONCLUSION

[47]For those reasons, I find that, in the particular circumstances of this case, the removal of the Claimants from the United Kingdom was unlawful solely because of the failure to allow the Claimants any time to seek legal advice after they were served with removal directions. As a consequence, the removal was unlawful and they were unlawfully detained for a period of 10 hours whilst that removal was effected. I order that the Defendant pay each Claimant the sum of £2,000. In relation to Article 8 ECHR, the removal of the Claimants was a proportionate interference with the Claimants’ right to private life in the United Kingdom done in pursuance of a legitimate aim. However, it was not done in accordance with law and for that reason alone cannot be justified under Article 8(2) ECHR. For that reason, the removal on 11 September 2010 was an unjustified interference with the Claimants’ right to private life. No further remedy is called for in relation to Article 8 and, in particular, no award of damages is necessary in all the circumstances of this case.

Cited in 3 later judgments