Palisetty v Secretary of State for the Home Department [2014] EWHC 2473 (QB)

[2014] EWHC 2473 (QB)Case No TLQ/14/0146
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/07/2014
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
Between
SWATHI PALISETTYClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Michael Biggs (instructed by Acculegal Solicitors) for ClaimantMr David Manknell (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 29-30 May 2014
Judgment
[1]The Claimant, Miss Swathi Palisetty, claims damages including loss consequential on her removal to India on 29 December 2011 for a period of detention at Heathrow airport on 28 and 29 December 2011 which she alleges to have been unlawful. The Claimant brought proceedings for judicial review to challenge these actions.[2]The Claimant, an Indian national, first entered the United Kingdom on 16 November 2009 pursuant to entry clearance as a student valid from 10 November 2011, in order to study at the University of Bedfordshire in Luton for an MSc in Computer Networking. The Claimant’s leave to remain as a Tier 4 (general) student studying the MSc course was extended on 10 October 2011 to 1 July 2012.[3]The events which gave rise to her detention at Heathrow and removal to India on 29 December 2011 occurred when she returned to the United Kingdom on 28 December 2011 from a holiday in India. Following questioning by immigration officers at the port of entry on 28 December 2011 the Claimant was served with a Notice of Refusal of Leave to Enter. The basis of the Refusal was stated to be as follows:
“The change in circumstances in your case is that you obtained leave to enter as a student but you are now seeking to enter and remain for the purpose [of] continuing your employment as a nanny. You began this employment after you had last attended your college, the University of Bedfordshire in April 2011. You have admitted that you are no longer registered at the university and have failed to pay the necessary fees there. You work full time for the Rashid family in Manchester and live in at the household. I therefore cancel your continuing leave. Furthermore, you are now seeking entry for the purpose continuing your employment as a nanny but you are a visa national and you have failed to produce a passport or other identity 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.”
The Claimant was detained overnight and put on a flight to India the following day.[4]On an application for urgent interim relief, on 13 March 2012 Eady J ordered that the Defendant Secretary of State take steps to facilitate entry clearance to the Claimant forthwith to enable her to take examinations at the University of Bedfordshire. The Claimant was then returned to England at public expense. Permission to apply for judicial review was granted on 2 April 2013 by Ian Dove QC sitting as a Deputy High Court Judge. The reason for his decision was that it was:
“…at least arguable that there are anomalies in the interview record and the Acknowledgement of Service which require further investigation and call the Defendant’s evidence into question.”
[5]At the substantive hearing for judicial review on 10 April 2013, James Dingemans QC (as he then was) sitting as a Deputy High Court Judge transferred the claim to the Queen’s Bench Division.[6]The claim before this court is for damages for unlawful detention from 2pm on 28 December 2011 to 6pm on 29 December 2011, a period of 39.5 hours and for special damages for alleged consequential loss. The Claimant also claims aggravated damages in respect of such detention.[7]The Notice of Refusal of Leave to Enter cancels the Claimant’s continuing leave to remain in the United Kingdom because of a change in circumstances. The change is stated to be that the Claimant obtained leave to enter as a student but she was now seeking to enter and remain for a different purpose, continuing employment as a nanny. The Notice refuses leave to enter on the same basis. Mr Biggs, counsel for the Claimant, and Mr Manknell, counsel for the Defendant, agreed that the issue for the Court is whether it was justified on the evidence for the Defendant to conclude that the purpose of the Claimant in seeking to enter the United Kingdom was to work as a nanny and was not to study.[8]Schedule 2 of the Immigration Act 1971 provides:
“2A(1) This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before arrival. (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; … … (8) An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter. … 16(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.”
Immigration Rules (HC 385) in effect on 12/29 December 2011 provide:
“320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply: Grounds on which entry clearance or leave to enter the United Kingdom is to be refused … (5) failure, in the case of a visa national, to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought;…”
Directions may be given for the removal of persons who arrive in the UK and are refused leave to enter. (a) whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled; …[9]The interrelationship between cancellation of existing leave to enter under the Immigration Act 1971 Schedule 2 paragraphs 2A(2)(a) and (8) and refusal of leave to enter under the Immigration Rules paragraph 320(5) was explained by Pitchford LJ in Secretary of State for the Home Department v Boahen [2010] EWCA Civ 585. Mr Boahen had entry clearance as a “visitor” but on arrival he stated that he was intending to work. Leave to enter was refused and removal directions were given. Pitchford LJ held:
“32. In my opinion the submissions made by Miss McGahey are correct. When Mr Boahen arrived at port on 4 November 2008 the immigration officer's power, upon realising that Mr Boahen's purpose for entering was different from the purpose specified in his entry clearance, was confined to cancellation of his leave to enter, either on the ground specified in paragraph 2A(2A) and (8) (change of purpose) or on the ground specified in paragraph 2A(2)(i) and (8) of Schedule 2 and under paragraph 321A(1) of the Rules (change of circumstances). Only then did the power to refuse leave to enter under paragraph 320(5) come into play. It follows that the immigration officer's refusal of leave to enter under paragraph 320(5) depended for its validity upon the lawfulness of the cancellation under paragraph 321A(1) of the Rules.”
[10]It was not in dispute between counsel that the function of the court in this claim as in cases of judicial review, “in cases of this sort”:
“…is not limited to deciding whether there was evidence on which the immigration officer … could reasonably come to his decision (provided he acted fairly and not in breach of the rules of natural justice).” but extended to deciding whether the decision was justified and in accordance with the evidence. In R v Secretary of State for the Home Department, ex parte Khawaja [1984] IAC 74 in respect of claims for judicial review Lord Fraser held at page 97E: “On this question I agree with my noble and learned friends, Lord Bridge and Lord Scarman, that an immigration officer is only entitled to order the detention and removal of a person who has entered the country by virtue of an ex facie valid permission if the person is an illegal entrant. That is a “precedent fact” which has to be established. It is not enough that the immigration officer reasonable believes him to be an illegal entrant if the evidence does not justify his belief. Accordingly, the duty of the court must go beyond inquiring only whether he had reasonable grounds for his belief.”
[11]It was not in dispute between counsel that the burden of proof is on the Defendant to show that the detention of the Claimant was lawful. As explained by Lord Fraser in Khawaja at page 97G the standard of proof is a high degree of probability.[12]Counsel were agreed that the judgment of the court on whether the decision of the Secretary of State was justified is to be taken not only on the evidence upon which the immigration officers had before them but also on that which could have been available to them at the time. However Mr Manknell did not accept the proposition advanced by Mr Biggs that the Court should also take into account evidence placed before the court at the hearing of the claim which was not available at the time the relevant decision was taken by the Secretary of State. Mr Biggs relied upon the dictum of Lord Wilberforce in Khawaja at page 105E that when considering whether the evidence justifies the conclusion reached by the Defendant:
“If the court is not satisfied with any part of the evidence it may remit the matter for reconsideration or itself receive further evidence.”
[13]When asked, neither counsel referred to any authority on the question of whether the court in determining a claim for unlawful detention can take into account evidence which was before the court hearing the claim but not that before or available to the relevant decision maker at the time. The issue in a claim for wrongful detention is whether the detention was lawful, the burden being on the Defendant. In this case, the decision to revoke the Claimant’s leave to enter and remain in the United Kingdom and to refuse to grant further leave to enter were taken on the basis that the purpose of the Claimant in returning to the United Kingdom on 28 December 2011 was to work as a nanny and not to study. It is not suggested that new evidence came to light which would not have been available to the Defendant at or about the time she took her decisions.[14]As was confirmed by the University after the Christmas vacation, Mr Manknell accepted that there was no dispute that the Claimant was enrolled. He asserted that this was obvious to the immigration officers but contended that this did not take the matter any further as the Claimant’s purpose or intention in returning to the United Kingdom was not to study but to work. Mr Biggs accepted that the fact that the Claimant was enrolled at the university was not enough to show that her purpose in returning to the United Kingdom was to study but contended that it was a highly material factor.[15]No evidence was produced as to whether and if so for how many hours a week the Claimant was working for Mr and Mrs Rashid. An email from Mrs Rashid of 14 January 2012 to solicitors for the Claimant was before the court. Mrs Rashid wrote:
“To whom it may concern, Swathi: who is a friend of mine has been staying with me for the last two months as a paying guest. She resided with us at 147 Stockport Road, Altrincham, WA15 7LT. For any further information you may contact me.”
No further information from Mrs Rashid was advanced and neither Mr nor Mrs Rashid gave evidence at the hearing before me.[16]Since in this case there was no material fresh evidence placed before the court which could not have been available to the Defendant at or about the time the decisions in respect of the Claimant were taken, it is not necessary for me to decide whether in determining the lawfulness of her detention the court can take into account fresh evidence.[17]Another issue of law over which there was a difference between the parties was whether the Defendant had failed to comply with the requirements of procedural fairness by “blatant disregard for the Claimant’s entitlement to seek legal advice and assistance and obtain redress through the courts”. Mr Biggs relied upon the judgment of Silber J in R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) (upheld on appeal [2011] EWCA Civ 1710). On a challenge to the lawfulness of a policy of the Secretary of State on immigration control it was said that failure to provide access to the opportunity to obtain legal advice renders removal unlawful. Silber J held at paragraph 60:
“I have already explained that to have access to justice, the person subject to removal (other than those who wish to be removed and have consented in writing) need in the limited time available prior to removal to have a genuine opportunity to find a legal adviser who is ready, willing and able in the limited time available prior to removal to challenge the removal directions.”
[18]Mr Manknell pointed out that the decision in Medical Justice did not apply to port cases. When the case reached the Court of Appeal, Sullivan LJ observed at paragraph 38:
“…it follows that the judge was right to quash the whole of the section B policy with the exception of those parts that relate to port cases.”
Counsel referred in his skeleton argument that it was common ground that by reason of Immigration Act 1971 (as amended) section 91(1), (3) and (3B) there is no in-country right of appeal against the decision of the Secretary of State in port cases. Nor is there a right to be given a specific period of time before removal. It was said that in certain limited circumstances it may be necessary as a result of the requirements of common law fairness that there be a specific opportunity to take legal advice even in a port case. R (Zonite Shaw) v Secretary of State for the Home Department [2013] EWHC 42 (Admin) was such a case. One of the claimants was a child aged four who had been born in the United Kingdom and lived there all his life. He and his mother had left on a short trip for a family funeral. Other features were present which were not in this case. Clive Lewis QC (as he then was) (sitting as a Deputy High Court Judge) made clear in paragraph 38 that he was not suggesting that the right to access to legal advice arises “in the generality of cases where a person arrives in the UK and is refused leave at port”. Mr Manknell submitted that none of the exceptional factors which led to the decision in Shaw were present in this case and that on the evidence, in any event, the Claimant had access to a telephone and could contact a solicitor.[19]The Claimant wrote in her statement of 23 March 2012 that:
“2. The Defendant was incorrect to state in Section C of AOS that ‘I arrived in the United Kingdom on 28 December 2011 (from India on flight QF1 via Bangkok)’. On 28 December 2011, I was in London and attended the Defendant at Heathrow Airport in response to a call from the UKBA.”
If this assertion had been correct, this would not have been a port case. However the Claimant retracted this assertion. She had been questioned and detained on arrival. It was a port case. In my judgment no special features were present which gave the Claimant an entitlement to access to legal advice before being questioned, detained and returned to India. In any event I am satisfied from the evidence of Mr Humble and the Claimant herself that she had access to a telephone when she was being questioned at Heathrow. Although her mobile telephone was taken away from her, the Claimant had access to a telephone and telephoned her father. She could have contacted a solicitor. Accordingly if there had been an entitlement to the opportunity to seek legal advice she was not deprived of that opportunity.[20]It was contended by Mr Biggs that there was a breach of procedural fairness by the Defendant failing to provide the Claimant with an interpreter. It was submitted that although the Claimant had sufficient English to lawfully obtain a Tier 4 student visa, it is apparent that her English is such that there was a real need for an interpreter when it came to a formal interview. Mr Biggs referred to an email on 18 April 2012 from Steven Grundy, Senior Engagement Advisor of the University of Bedfordshire, in which he wrote of the Claimant:
“She is a little uncertain at the moment and I think that the language barrier means we will need to make things doubly clear.”
[21]At the hearing before me, the Claimant gave evidence through an interpreter. It appeared that her command of English was not good although she seemed to have a sufficient understanding of the questions put to her. The immigration officers who had questioned the Claimant on 28 December 2011 and who gave evidence at the hearing before me, Miss Roopra, Mr Cullen and Mr Humble, commented that her command of English as it appeared at the hearing was less good than on 28 December 2011. They also said that the Claimant did not ask for an interpreter.[22]The Claimant had sufficient command of English to undertake a degree course at the University of Bedfordshire. It appears that she had taken an English language session at the beginning of her course in 2009 for which she objected to pay. The fee was waived. By the date of her detention on 28 December 2011 the Claimant had been living in England for two years. The Claimant did not ask for an interpreter when she was questioned by immigration officers. On the evidence before the court in my judgment it was not unfair not to offer her access to an interpreter. However, as Mr Grundy observed in his email of 18 April 2012, because of some difficulty with the English language there was a need for the immigration officers “to make things doubly clear”. Although fairness did not require the provision of an interpreter on 28 December 2011, in my judgment the answers given to questions by the immigration officers are to be viewed in the light of the Claimant’s imperfect command of English.

Evidence and findings of fact

[23]The issue for me to decide therefore turns on whether on the evidence before the immigration officers and that which would have been available to them within a reasonable time the decision of the Defendant on 28 December 2011 that the Claimant’s purpose in entering the United Kingdom had changed from studying to working as a nanny was justified.[24]Mr Manknell submitted that a straightforward factual dispute lies at the heart of this claim. If the evidence of the immigration officers is accepted, the Claimant told them that her purpose in returning to the United Kingdom was to work as a nanny. No further investigation was necessary. The case for the Claimant is that she did not admit that she was not a student or that she was coming to the United Kingdom to work as a nanny. Further, the evidence did not establish, to the necessary standard, that the decision of the Defendant was justified.[25]The Claimant relied upon her three witness statements, the first two of which were produced in support of her application for judicial review. She gave evidence at the hearing before me. For the Defendant three immigration officers relied upon their witness statements and gave oral evidence. The statement of Mr Patel, assistant immigration officer, was received without his attendance to give evidence as he had suffered a stroke and was an inpatient at a hospital.[26]On her own admission when giving evidence in chief, the Claimant did not tell the truth in her second witness statement signed on 23 March 2013. She wrote that she did not attend immigration officers at Heathrow on 28 December 2011 on arrival on a flight from India via Bangkok. The Claimant stated that she was in London on 28 December 2011 and attended the Defendant at Heathrow airport in response to a call from the United Kingdom Border Agency (‘UKBA’). It is clear from their letter before claim to the UKBA of 17 January 2012 that the Claimant had given the same untrue account to her solicitors. Further, it is alleged on behalf of the Defendant that the Claimant gave the same untrue account to the university. This allegation is supported by her email of 3 January 2012 to Tom Rouvray at the university in which she wrote:
“…I got a call from immigration enquiry office on 28 december so, according to them i went there. as soon as i went there they have asked me many questions…”
This assertion is consistent with the untruth later given to her solicitor and repeated in her statement of 23 March 2013 made for the purpose of her application for judicial review.[27]The Claimant admitted that she lied as to how she came to be interviewed by immigration officers at Heathrow on 28 December 2011. In evidence she stated that she had lied because she was afraid of what her father would say. He did not want her to return to India over the holidays. She went to some lengths to maintain the deception that she had remained in England. She did not stay with or visit her parents when she was in India in December 2011. It is clear from her own admissions that the Claimant is prepared to lie when it suits her.[28]Mr Manknell submitted that the Claimant also lied when making what he characterises as outlandish allegations against the immigration officers who gave evidence in these proceedings.

What did the Claimant say to the immigration officers on 28 December 2011?

[29]Miss Roopra is an immigration officer. On 28 December 2011 she stopped the Claimant at the primary checkpoint at Immigration Control at Heathrow at about 12:20. The Claimant had arrived on a flight from India via Doha. The Claimant agreed that Miss Roopra made contemporaneous notes on the back of her landing card. The immigration officer completed a minute sheet recording the answers she said were given to her by the Claimant. She made the following note:
“12:20 The passenger held a residence permit endorsed T4 general student in the UK on 10/10/11 and valid until 01/07/12. She stated that she was studying an MSC in Computer Networking at the University of Bedfordshire. She had an expired university ID card (expired on 31/07/11). She said that she did not have a new card. She said that her course would be finishing in July 2012. The passenger stated that she worked in a restaurant in Manchester as a waitress. She said that she was not attending college and would only be going in for her exams. She said that she last attended college in October 2011. She said that she worked 20 hours a week during term time and worked full time during the holidays. She could not describe the contents of her modules. I was not immediately satisfied that the passenger was a genuine student so I issued an IS81 at 12:30. The case was referred to acting CIO I. Fernandes who asked me to call the college. 12:37 I called the University of Bedfordshire on 01234 400 400, but there was a message on their answer phone stating that they would be open on 5th Jan 2012. 12:40 I spoke to the passenger again. She stated that she lived in Luton and moved to Manchester three months ago. She said that she did not attend her exam in November 2011 because she was sick. She said that she would re-sit an exam in February 2012. The passenger stated that she worked in a restaurant called ZO. She did not have a contact number. She said that she also worked at the owners house (Rashid Jamil) looking after his children. She held no contact number. I asked her whether she had an NI card. She said that she did. I asked her if I could take her card. She gave me her card. 12:45 I referred the case to CIO Gordon Birnie who authorised for HMRC checks to be done. 13:00 HMRC checks done by IO Jason McCullum. Details on file. 13:15 IO Jason McCullum also had a chat with the passenger (see notes on file). I was also present.”
[30]Miss Roopra gave evidence that the Claimant was unable to explain the content of her course. The chief immigration officer advised her to contact the university. The UKBA would do that to satisfy themselves that the Claimant was a student. Miss Roopra said that she telephoned the University of Bedfordshire. In answer to Mr Biggs, Miss Roopra agreed that the fact that the Claimant was living in Manchester and just going in for exams was not a problem. Miss Roopra said that the Claimant told her she did not have a telephone number for the Rashids although the evidence was that she later gave Mr Humble their number. Miss Roopra agreed that on her student visa the Claimant was entitled to work for twenty hours a week during term time and full time during the holidays. She was adamant in cross-examination that the Claimant said that she had been working at a restaurant called ZO and that she had been looking after the Rashids’ children. Miss Roopra agreed that the Claimant had been struggling with her English over the two days of the court hearing but her command of English was better in 2011. She was not satisfied that the Claimant was a genuine student.[31]The Claimant said that she told Miss Roopra that she was staying with Mr and Mrs Rashid in Manchester as a paying guest. Although she mentioned ZO, the name of the restaurant where Mr Rashid worked, she did not say that she worked there. She did not tell Miss Roopra that the Rashids have children or that she worked for them as a nanny. The Claimant said that Miss Roopra made this up “because they want to send Indians back to India”. The Claimant also asked “How can I work in a restaurant and be a nanny?”[32]The Claimant said that when Miss Roopra asked her about her university course she “didn’t explain deeply”. The Claimant asserted that Miss Roopra lied to her saying that the immigration officers had called the university and the university had told her she was not a student. The Claimant gave evidence that this was after the Claimant had told “them” that she had an appointment at the university. The Claimant alleged that Miss Roopra and Mr Humble, another immigration officer, told her that she was working as a nanny.[33]Mr McCullum, immigration officer and the duty forgery officer on 28 December 2011, gave evidence. He stated that he joined Miss Roopra and asked the Claimant some questions at the desk at about 13:20. Mr McCullum recorded in his note of the conversation that the Claimant said that she had not attended the university since around April 2011. She said that her student ID card was out of date as she was not a very good student and only attended one lecture a week. Mr McCullum noted that the Claimant said that she moved to Manchester in October 2011 so that she could work as a nanny for a manager of the local restaurant. She was paid cash in hand, £8 an hour. He recorded that the Claimant said that the university accused her of plagiarism, had requested fees for her studies and that she did not have the money to pay them. Therefore she is no longer registered at the school.[34]The Claimant gave evidence that she told Mr McCullum that she had an appointment with the university on 5 January 2012. She did not know why Mr McCullum had said that she was working as a nanny for £8 per hour. She had not told him this.[35]Attached to the statement of Mr Patel, an assistant immigration officer, was a record of his search of the Claimant’s baggage timed 13:45 on 28 December 2011. This notes:
“Pax started work for PAK National taking care for children in Manchester got cash in hand £500 per month. Also stated all my friend do that.”
[36]The Claimant said that she did not talk to Mr Patel about a nanny job. None of her friends work as nannies. She said that she told Mr Patel that she paid £300 for rent.[37]Mr Humble, an immigration officer, interviewed the Claimant and took the decision to refuse her entry to the United Kingdom on 28 December 2011. He took his decision after interviewing the Claimant in an interview room. Mr Humble produced a handwritten record of what he said were his questions answers. Mr Humble wrote on the Interview Front Cover sheet that the interview started at 14:15 and ended at 14:35. He stated that he accurately wrote down the questions and answers given and that he read these to the Claimant. She signed the declaration:
“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.”
Each of the subsequent three pages was signed once by Mr Humble and twice by the Claimant. My Humble denied the allegation by the Claimant that she was asked to sign blank sheets of paper before the questions and answers were recorded and that these were not read over to her. Mr Humble did not know why the Claimant had signed each page of the notes of the interview twice.[38]Mr Manknell particularly relied upon the following questions and answers recorded by Mr Humble:
“Q8: Are you still registered as a student at the college? A: No Q9: Have you paid your fees? A: No. They asked me for £1,300 and I haven’t paid. My account at college is blocked. Q10: So what have you been doing? A: I have been working as a nanny. Q11: Since when? A: The last three months. … Q15: How many hours a week do you work? A: I look after the children when they are there. … Q22: Why did you stop attending college? A: I had a problem with plagiarism. Someone else on the project got accused of it and I did too. Q23: Were you still registered at the school? A: No.”
Mr Humble did not put to the Claimant the allegation that she was seeking to enter the United Kingdom not to study but to work. A: No Q9: Have you paid your fees? Q10: So what have you been doing? Q11: Since when? Q15: How many hours a week do you work? Q22: Why did you stop attending college? Q23: Were you still registered at the school? A: No.”

Q23: Were you still registered at the school?

[39]Mr Humble recorded that the Claimant told him that the last time she attended college was May 2011. The Claimant stated that she told him that she attended the university until July 2011, submitted her group assignment in August 2011 and was preparing for her assessment in January 2012. A further assessment was to be completed by July 2012.[40]The Claimant wrote in her statement of 23 March 2013 that she explained to “her interviewer”:
“2iv. …about the issues surrounding allegation of plagiarism in response to his allegation that he received information from the University that I didn’t pay the tuition fees to the University. I explained him that I paid full tuition fees to the University and the current dispute with the University concerning the extra fees that I was asked to pay as a member of the team. I also explained them that I was given an appointment by the University Officials on 5 January 2012 to discuss further.”
[41]Mr Humble wrote in his statement made on 1 November 2012:
“5. The decision to refuse entry was accordingly made on 28 November (sic) 2011 based on the facts obtained from the interview and the Claimant’s answers to the questions put to her.”
[42]Mr Humble agreed with Mr Biggs that the fact that the Claimant had not attended university since April 2011 was not a reason for cancelling her leave to remain in the United Kingdom. He did not attempt to contact the university. Mr Humble said the 28 December 2011 when he interviewed the Claimant was a Saturday during holiday time. The information he had at the time was that the university was shut. Mr Humble agreed that the UKBA had access to an online database of Tier 4 students. Tier 4 sponsor universities are required to notify the UKBA of any concerns about students’ compliance with visa conditions. Mr Humble did not attempt to access the database to see whether the Claimant was still recognised as a student by the University of Bedfordshire. Mr Humble said that he thought that “registered” and “enrolled” were the same thing so that when the Claimant said that she was no longer registered he understood that she was no longer a student at the university.[43]As for his conclusion that the purpose of the Claimant in returning to the United Kingdom was to work as a nanny, Mr Humble said that he had been told by Mr Patel that she had said that she was working in Manchester as a nanny. Mr Humble did not ask for how many hours the Claimant worked. He agreed that she was entitled to work full time outside term time. The Claimant had given him the Rashids’ telephone number and address but she told him that they were in Pakistan and could not be contacted. Mr Humble did not attempt to contact the Rashids to ask them if the Claimant was working for them.

Findings of fact relevant to the issues in dispute between the parties

[44]There are unsatisfactory aspects of both the evidence of the Claimant and of some witnesses for the Defendant. Some of these may be attributable to the Claimant’s imperfect command of English.[45]The Claimant told Mr Humble that she was not registered. In saying this it is likely she meant that she was not registered to re-take the Grid Technologies Module of her course. The Claimant was refusing to pay an additional fee for re-taking this module in respect of which her group had been subject to a finding of plagiarism. She had been due to re-take the module in November 2011. She had paid for this re-assessment but had not taken it in November. The Claimant objected to paying for another re-assessment. The Claimant had arranged a meeting with a student engagement advisor on 5 January 2012 to discuss this dispute. Knowing that she had an appointment with the university to try to resolve difficulties about re-taking the module, in my judgment it is unlikely that the Claimant would have said that she was no longer registered at the university. A Confirmation of Acceptance of Studies (‘CAS’) dated 25 August 2011 shows that the fees for the course ending 1 March 2012 has been paid. There may have been a misunderstanding between her and Mr Humble when she told him that she was no longer registered. On 28 December 2011 the Claimant was not registered to re-take the Grid Technologies Module because of a dispute over the fee for the re-take. This was to be discussed on 5 January 2012.[46]Mr Humble did not check the database which was available to the UKBA to ascertain whether the Claimant was still recorded by the University of Bedfordshire as a student at their institution. It is clear from the material before the court that the university was well aware of their obligation to report to the UKBA if the Claimant was no longer continuing with her academic studies. I infer from the responsible attitude of the university to their obligation to inform the UKBA if the Claimant was no longer pursuing a course of study with them that they would have done so in 2011 if she had ceased her studies with them.[47]Neither Mr Humble nor any other immigration officer pursued an enquiry directly with the university. The immigration officers clearly considered it relevant to ascertain whether the Claimant remained enrolled at the university. Miss Roopra gave evidence that the Chief Immigration Officer told her to make this check. Given the importance of the cancellation and refusal of fresh leave to enter, in my judgment even if such enquiry had to wait until the start of term, 5 January 2012, a decision should not have been taken before a reply to the enquiry was given.[48]It is unsatisfactory that the Notice of Refusal of Leave to Enter recites that the Claimant last attended the University of Bedfordshire in April 2011. Miss Roopra recorded that she had been told by the Claimant that she last attended in October 2011; Mr McCullum, who joined Miss Roopra at the desk stated that the Claimant gave the date of her last attendance as April 2011. The record Mr Humble made of his interview with the Claimant shows that she told him that she last attended the college in May 2011. Mr Humble appears to have selected for insertion in the Notice of Refusal of Leave to Enter the date the Claimant was alleged to have given to Mr McCullum and not the date he stated was given to him.[49]Mr Manknell submitted that the fact that the Claimant was enrolled at the University of Bedfordshire at the time the Defendant took the decision to cancel her leave to enter and remain in the United Kingdom does not take the matter any further. I disagree. Whilst enrolment as a student is not determinative of the Claimant’s purpose in entering the United Kingdom it is highly relevant.[50]Evidence was given by Mr Patel, Miss Roopra, Mr McCullum and Mr Humble that the Claimant said she had been working for the Rashids as a nanny. The Claimant denied that she had said this. I find it unlikely that all the witnesses for the Defendant would make this assertion if they had not been so informed by the Claimant. I find that the Claimant told each of them that she had worked as a nanny in Manchester. However the allegation that the Claimant told Miss Roopra that she worked as a waitress in a restaurant called ZO in Manchester is not established. No doubt the Claimant mentioned the name of the restaurant and that Mr Rashid worked there but I am not satisfied that the Claimant stated that she worked there. The Claimant gave evidence that she would go to the restaurant with the Rashid family to parties but not to work. Miss Roopra may have misunderstood the Claimant’s explanation of the reason for visiting the restaurant.[51]The Claimant gave a telephone number and address for the Rashids to Mr Humble. It would be curious if two hours earlier she had told Miss Roopra that she had no contact number for the Rashid family. The position at the conclusion of the interview with Mr Humble was that he had a telephone number on which the Claimant’s alleged employer could be contacted but he did not do so. Even if the Claimant had said the Rashids were in Pakistan this did not prevent Mr Humble from attempting to contact them.[52]The witnesses for the Defendant agreed that under the terms of her student visa the Claimant was entitled to work for twenty hours a week during term time and full time during the holidays. In her note of her interview Miss Roopra recorded that the Claimant told her that she worked those hours. No other witness gave evidence to what, if anything, the Claimant said about the hours she worked. Mr Humble stated that the Claimant told him that she had worked for the Rashids as a nanny for the last three months. He did not probe further the answer given to the question for how many hours a week she worked when the response given was that she looked after the children when they were there. The Defendant did not have information from which it could be concluded that the Claimant worked more than was permitted by the terms of her student visa.[53]Mr Humble did not put the allegation to the Claimant which was the ground for his decision to refuse her leave to enter the United Kingdom. He did not give her the opportunity to comment on the allegation that her purpose in coming to the United Kingdom was not to study but to work as a nanny.[54]The decisions taken by the immigration officer were based upon what was alleged the Claimant said about when she last attended the University of Bedfordshire, that she was not registered with that institution.[55]In reaching his decision as to the purpose of the Claimant in seeking to enter the United Kingdom the immigration officer did not obtain all the evidence which would have been available to him. He did not take the obvious step of checking with the University of Bedfordshire to ascertain whether the Claimant continued to be enrolled with them. Cancelling the Claimant’s leave to remain in the United Kingdom was a serious step with obviously potentially detrimental consequences for the Claimant. Even if the immigration officer would have had to wait a week or so until the university returned from vacation such a wait would not have been disproportionate. Further, on the basis of the answers given by Mr Humble in cross-examination, he could have checked the online database of students at Tier 4 sponsor universities. If these checks had been made it would have been apparent that the Claimant remained a student of the University of Bedfordshire. She was not a good student. She had not successfully completed many modules. Her attendance was poor and she was unlikely to succeed in obtaining her qualification. However she was a student of the University of Bedfordshire on 28 December 2011.[56]Further if, as I have found, the Claimant informed the immigration officer that she had worked for the Rashids as a nanny, as they all agreed, this would not have been in breach of the conditions of her visa. According to the evidence of Miss Roopra the Claimant told her that she worked for the Rashids for twenty hours during term time and full time during the holidays. This was acceptable. Despite being given their contact details Mr Humble did not enquire of the Rashids to find out the number of hours the Claimant worked for them.[57]In light of the fact that the Claimant had arranged a meeting at the university to discuss payment of a fee for the Grid Technologies module which she was due to re-take I infer that on 28 December 2011 she was intending to continue with her studies. I also infer that she would not have told the immigration officers that she was no longer registered at the university and had failed to pay the fees there. She had to pay to re-take the Grid Technologies module and so may well not have been registered for that examination. Further, whilst the Claimant may well have told immigration officers that she had worked for the Rashids as a nanny and was going to continue to do so, this was not incompatible with the purpose of her being in the United Kingdom to study.[58]On the evidence on which the immigration officers acted and that which would have been available to them at the time, I find that they were justified in detaining the Claimant for examining her on arrival at Heathrow on 28 December 2011. However on the material before the immigration officers and that which was available at or around 28 December 2011, the Defendant was not justified in inferring that the purpose of the Claimant in seeking to re-enter the United Kingdom was not to study but to work as a nanny. The Defendant has failed to satisfy the burden of proof on her to establish that the detention of the Claimant after examining her was justified.

Damages

[59]The Claimant claimed damages for wrongful detention from 14:00 on 28 December 2011 to 18:00 on 29 December 2011, 39.5 hours. Both the Particulars of Claim, paragraph 23, and the Defendant’s Counsel Schedule of Loss state that the Claimant’s flight departed at approximately 08:00 on 29 December 2011. Having regard to my finding that the initial period of detention for examination until about 14:35 on 28 December 2011 was lawful, I conclude that the Claimant was wrongfully detained from 14:35 on 28 December 2011 until about 08:00 on 29 December 2011 when she was removed from the United Kingdom on a flight to India, a total of approximately 17.5 hours.[60]The parties agreed that general damages for wrongful detention are to be assessed in accordance with the guideline case of Thompson v Commissioner of the Police for the Metropolis [1998] QB 498. Updated for inflation, the damages for the first 24 hours of unlawful detention would be approximately £4,813. Accordingly I award general damages for unlawful detention in the sum of £3,509.48.[61]The Claimant is entitled to recover as special damages the cost of her flight from London to Hyderabad. These costs would not have been incurred but for the actions of the Defendant. There is a dispute between the parties as to the cost of the flights. The Claimant claims £594 for the flight to Chennai and £56 for the onward journey to Hyderabad. The Defendant contends that the receipt for the flight to Chennai is for 47,430 Rupees which it was said was approximately £464 at current rates, I assume this was the exchange rate at the date of the Schedule of Loss, 7 February 2014. However the receipt shows a sum of £568.93. The relevant rate of exchange is that at the date of the payment, 30 December 2011. The best evidence of that is what is shown on the receipt. Accordingly a sum of £568.93 will be awarded. Further an award of £56 will be made. The Claimant would not have returned to Hyderabad on 29 December 2011 but for the Defendant’s actions.[62]The Claimant also claims £374 said to be the cost of her visa. No evidence was advanced in support of this claim and no award is made in respect of it.[63]The Claimant claims fees paid to the University of Bedfordshire, living expenses wasted by the Claimant during her time in the United Kingdom being rent, general living expenses and travel costs. It is said that living expenses and university fees were wasted because the Claimant failed to obtain her MSc from the University of Bedfordshire. The burden of proof is on the Claimant to show that but for the wrongful act of the Defendant those costs would not have been wasted. She has failed to do so. The Claimant was a poor student who had a bad attendance record at the University. By email on 12 December 2012 Krishna Songara the UKBA Compliance Officer at the University of Bedfordshire wrote to Keith Benton at the Home Office:
“In response to your email, her current status with the University is that she has been removed from the University Register, we could not report her termination to the UKBA as her visa expired 01/Jul/2012 and a CAS request for an extension was not issued. … Given her past academic performance we do not feel sufficiently confident that Swathi intends to or has the ability to successfully complete the program of study, therefore we do not feel inclined to re-instate her.”
The fees and expenses claimed were wasted because of the Claimant’s failure to complete her MSc due to her own poor performance. No award is made in respect of these sums claimed.[64]Accordingly the Defendant is ordered to pay the Claimant damages the sum of £4131.41 for her wrongful detention.

Cited in 1 later judgment