Modi v United Kingdom Border Agency

A civil claim under the Human Rights Act 1998 may be brought in the High Court where the relevant immigration tribunal cannot grant the remedies sought, including damages or a declaration. Such proceedings are not automatically abusive merely because related issues were raised, or could have been raised, in an immigration appeal. However, a claim may be struck out under CPR 24.2 where it has no real prospect of success. Article 8 does not necessarily protect ordinary business contacts, and any interference caused by an initial immigration decision may be proportionate where an effective appeal can promptly review and reverse that decision.

The appellant, a businessman with a conviction for sexual assault, was refused leave to enter and his existing entry clearance was cancelled. He appealed successfully to the Asylum and Immigration Tribunal, which directed reinstatement of the entry clearance and rejected his Article 8 claim. He then pursued High Court proceedings seeking damages and declarations for alleged breaches of Article 8 and A1P1.

The Deputy Master struck out the claim under CPR 24.2 as having no real prospect of success and as abusive in light of the parallel immigration proceedings. The appeal concerned whether the Human Rights Act claims and a declaration concerning refusal of entry solely on the basis of the conviction should proceed.

1. Disposition. The appeal was dismissed. The claim had no real prospect of success and was properly struck out under CPR 24.2.
2. Article 8. Professional and business activities are not excluded from Article 8, as explained in Niemietz v Germany (1992) 16 EHRR 97. That authority did not establish that all business relationships or contacts fall within private life. The appellant’s proposed short business visits, involving dealings with investors and lenders, involved no identified personal relationships of the kind protected by Article 8. There was therefore no real prospect of establishing an interference.
3. Proportionality. Even assuming an interference with Article 8 or A1P1, the immigration officer’s decision was not arguably disproportionate. It formed only the first stage of a statutory and rules-based process. The appellant had an effective right of appeal, could remain in the United Kingdom on temporary admission, and could have stayed until the appeal was determined. The temporary impact of the initial decision was proportionate to the immigration-control objective. Any A1P1 claim was also marginal and, in any event, failed the proportionality requirement.
4. Declaration. It would be unlawful and Wednesbury unreasonable for an immigration officer, knowing the relevant CID entry, to refuse entry solely on the conviction. Nevertheless, declaratory relief was discretionary and the issue was academic because the tribunal had reinstated the entry clearance, UKBA had recorded the effect of that decision, and the appellant had since entered without difficulty.
5. Abuse of process. Applying Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, abuse requires a broad, merits-based assessment of whether the later proceedings misuse the court’s process. The High Court claim was not abusive merely because the AIT had considered Article 8 or could have considered A1P1, since the AIT could not award compensation or grant a declaration. That conclusion was unnecessary to the result once the claim had been found hopeless.

High Court (Queen’s Bench Division): The appeal from the Deputy Master’s order was dismissed. The claim remained struck out under CPR 24.2.