Efenure, R (on the application of) v Secretary of State for the Home Department

An immigration decision treating a person as an illegal entrant for deception must be supported by evidence capable of satisfying a high standard and must follow a fair procedure. Suspicion arising from a later asylum claim does not, without more, establish deception on entry. A certification under section 94 of the Nationality, Immigration and Asylum Act 2002 is unlawful only if the human rights claim might possibly succeed before an appellate tribunal. The reviewing court must ask itself the same substantive questions as that tribunal. Detention based on an irrational illegal-entrant decision is likewise unlawful.

The claimant, a Nigerian national, entered the United Kingdom with a Tier 4 student visa to study for an MSc. After he applied for asylum when he could not afford to extend his student leave, the Secretary of State treated him as an illegal entrant by deception, detained him, certified his asylum and human rights claims as clearly unfounded, and allegedly invalidated his student visa.

Permission for judicial review was granted after an injunction prevented removal. The issues were the legality of the illegal-entrant decision and detention, the section 94 certification, and compliance with the Immigration (Notices) Regulations 2003.

1. Illegal entrant decision. The decision of 29 January 2012 was quashed. Under R v Secretary of State for the Home Department, ex p Khawaja [1984] 1 AC 1974, the court must appraise the quality of the evidence and decide whether it justified the conclusion. The evidence had to meet a high, although non-criminal, standard. The screening interview did not identify any material deception or provide a rational basis for concluding that the claimant had intended to remain permanently or claim asylum when he entered.
2. The interview was procedurally unfair because the alleged deception was not put clearly to the claimant. The IS151A was also defective: it ticked the box concerning deception in seeking leave to remain, while the Secretary of State relied on alleged deception on entry. The form therefore contradicted itself and compounded the procedural unfairness.
3. Detention. The detention from 29 January to 15 June 2012 was unlawful because it rested on the irrational illegal-entrant decision. The court did not need to determine whether detention later became unlawful under R v Governor of Durham prison, ex p Hardial Singh [1984] 1 WLR 704. Had that issue required decision, the court would have declined to declare the detention unlawful before release.
4. Section 94 certification. The challenge failed. The test is whether the claim was bound to fail or might possibly succeed. Applying ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, and the approach in R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27, the court considered the five Article 8 questions afresh. The claimant’s private life, family connection, educational circumstances and financial difficulties could not make the claim potentially successful.
5. The challenge concerning the student visa failed because the claimant had not shown that a relevant decision had been made, or that it had been made without the notice required by the Immigration (Notices) Regulations 2003. Damages for unlawful detention were ordered, to be assessed if not agreed.

The judgment records that permission for judicial review was initially refused on the papers, but was granted on renewal by a Deputy Judge of the High Court. An injunction preventing removal was granted pending determination of the claim. The present court then quashed the illegal-entrant decision, declared the detention unlawful, and refused the challenges to the section 94 certification and student-visa decision.