Kullas, R (on the application of) v SSHD

Detention under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 is not unlawful merely because an appeal against refusal of leave to enter may be likely to succeed. The underlying refusal must involve bad faith or irrationality in the Wednesbury sense. The decision is assessed by reference to information actually available to the immigration officer, subject to any question about the diligence of inquiries. Article 8 proportionality involves a continuous assessment of relevant factors. Long residence from childhood strengthens a person’s ties with the host state, but creates no automatic immunity from exclusion or deportation and no distinct legal threshold. Previous cases provide relevant principles and comparators, not inflexible outcomes.

The claimant, a United States citizen who had lived in Northern Ireland from childhood and held indefinite leave to remain, was refused leave to enter after returning from the United States. The refusal followed his conviction in Ireland for a sexual offence against a child. He was detained under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 from 21 November 2006 until bail was granted on 7 March 2007.

His appeal against the immigration decisions later succeeded on European Economic Area and Article 8 grounds. The remaining judicial review claim alleged that his detention had been unlawful because the refusal of leave to enter was irrational, or because the immigration authorities had failed properly to assess his Article 8 case. The central issue was the legal test for assessing detention dependent on a refusal of leave to enter.

1. The application was dismissed. Detention under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 depended on there being reasonable grounds for suspecting that removal directions could be given. The underlying refusal of leave to enter could invalidate detention if made in bad faith or irrationally, but the court rejected a separate test based on predicting that an appeal was bound to succeed.
2. The applicable standard was ordinary Wednesbury rationality. The statutory scheme contained no requirement that an immigration officer decide whether an appeal would necessarily succeed. Such a test would either duplicate rationality review or impose an unsupported additional restriction. The approach also applied whether or not there was a right of appeal in the particular case.
3. Rationality had to be assessed by reference to the information available to the immigration officer who made the decision. Information held elsewhere within the Home Office could not automatically be attributed to that officer. A separate question could arise if the officer had failed to make sufficiently diligent inquiries, but no such failure was established.
4. The decision in B v Secretary of State for the Home Department [2000] Imm AR 478 CA did not establish a rule that a person who had lived in the United Kingdom since childhood could not rationally be excluded or deported after committing a serious offence. Long residence, age on arrival, connection with the United Kingdom and connection with the country of nationality were relevant factors. Their weight increased on stronger facts, but they formed part of a continuous proportionality spectrum and did not create a step change or immunity.
5. The claimant’s case was materially different from B. The claimant’s offence involved a girl outside his family and evidence of grooming. There were also concerns about dishonesty, a possible breach of a non-molestation order and the risk of absconding. The later success of the claimant’s Article 8 appeal did not make the earlier refusal irrational.
6. The principle of consistency between like cases was subject to the variation of facts, the need to draw the comparator to the decision-maker’s attention and the possibility of justifying different treatment of superficially similar cases. The detention decisions therefore could not be impugned as unlawful.

First-instance judicial review in the Administrative Court. The judgment records that the claimant’s later appeal before the Asylum and Immigration Tribunal succeeded on European Economic Area and Article 8 grounds, but the judicial review claim concerning detention was dismissed.