Shaw & Anor, R (on the application of) v Secretary of State for the Home Department

An immigration decision may be lawful even where leave is described both as cancelled following a change of circumstances and as cancelled because the entrant’s purpose differs from that specified in the entry clearance. The substance of the notice determines the statutory ground and the available appeal rights.

Removal directions may nevertheless be unlawful where, on the particular facts, the person is given no opportunity to obtain legal advice before removal and there is no demonstrated urgency. Such unlawful removal may constitute false imprisonment during the resulting detention. A proportionate interference with private life cannot be justified under Article 8(2) if it is not in accordance with domestic law. A finding of breach may provide sufficient Article 8 just satisfaction where the claimant has subsequently been returned and given an effective opportunity to pursue the substantive claim.

The claim concerned decisions made at Gatwick Airport on 11 September 2010 cancelling the claimants’ leave, refusing leave to enter and directing their removal to Jamaica. The first claimant, a Jamaican national, had leave as a student but admitted working substantially beyond the permitted hours. Her young son held dependent leave.

The claimants were removed shortly after being served with the decisions. They were later returned to the United Kingdom, their cases were reconsidered, and their substantive human-rights challenge was ultimately rejected by the Upper Tribunal. The Court of Appeal dismissed their appeal in [2012] EWCA Civ. 1639. The remaining issues concerned the lawfulness of the original decisions and removal, false imprisonment, Article 6 and Article 8 damages.

1. Cancellation and appeal rights. Reading the notices as a whole, the operative reason for cancellation was that the claimants’ purpose in arriving in the United Kingdom differed from the purpose specified in their entry clearance. The cancellation therefore fell within paragraph 2A(2A) of Schedule 2 to the Immigration Act 1971, rather than paragraph 2A(2)(a). The appeal restrictions in sections 89 and 92 of the Nationality, Immigration and Asylum Act 2002 applied, and the notice requirements in regulation 5(3) of the Immigration (Notices) Regulations 2003 were excluded by regulation 5(6).
2. The cancellation was authorised by a chief immigration officer and an immigration inspector on 7 September 2010. It was not irrational to conclude, on the evidence of extensive employment and limited academic progress, that the first claimant was seeking to work rather than study. The decision concerning the second claimant also had regard to his best interests under section 55 of the Borders, Citizenship and Immigration Act 2009.
3. Access to justice and removal. The 72-hour policy did not apply because the claimants were port cases removed within seven days of refusal. Separately, however, the common law required an opportunity to obtain legal advice on these particular facts. The claimants had long-standing connections with the United Kingdom, had twice been granted temporary admission, and there was no evidence of urgency. Giving them only about 80 minutes before the flight afforded no such opportunity. The removal directions were unlawful.
4. Article 8. Removal interfered with the claimants’ private life, pursued the legitimate aim of maintaining effective immigration control and was proportionate. It was nevertheless not in accordance with law because the opportunity to seek legal advice had been denied. The interference therefore could not be justified under Article 8(2). Article 6 was not engaged because immigration proceedings did not concern civil rights.
5. Damages. False imprisonment required detention and absence of lawful authority. Both elements were established for the approximately 10-hour period from 11.25 am until the claimants left the aircraft in Jamaica. Damages of £2,000 were awarded to each claimant. No additional Article 8 damages were necessary, since the claimants were returned and obtained an opportunity to pursue their substantive human-rights claim. Aggravated and exemplary damages were refused.

• Court of Appeal: The claimants’ appeal concerning the later human-rights determination was dismissed on 13 December 2012: [2012] EWCA Civ. 1639.
• High Court (Administrative Court): The present court held the original removal directions unlawful, awarded £2,000 to each claimant for false imprisonment, and refused further Article 8, aggravated or exemplary damages.