Palisetty v Secretary of State for the Home Department

For immigration detention following arrival with existing leave, the court must determine whether the facts justified cancellation of that leave and refusal of fresh leave. The inquiry extends beyond whether the immigration officer had reasonable grounds. The Secretary of State bears the burden of proving lawfulness to a high degree of probability.

Relevant evidence includes material before the decision-maker and material that could reasonably have been obtained at the time. Where the proposed decision depends on a change from study to unauthorised work, obvious checks with the sponsoring institution should ordinarily be made before taking the serious step of cancellation. Employment within the conditions of a student visa is not incompatible with a genuine purpose of study.

The claimant, an Indian student, returned to the United Kingdom on 28 December 2011 after a holiday. Immigration officers questioned her, cancelled her existing leave, refused her leave to enter and detained her overnight before removing her to India.

She claimed damages for wrongful detention and consequential loss. The central issue was whether the evidence justified the conclusion that her purpose in seeking entry had changed from studying to working as a nanny. The court also considered procedural fairness, access to legal advice, the need for an interpreter, the evidential burden, and the assessment of damages.

1. Lawfulness of examination and detention. Under Immigration Act 1971, Schedule 2, an immigration officer could examine the claimant and detain her pending examination and a decision on entry. The initial detention for examination was lawful.
2. Following Secretary of State for the Home Department v Boahen [2010] EWCA Civ 585, cancellation of existing leave because of a change of purpose had to precede refusal of leave under paragraph 320(5) of the Immigration Rules. The validity of the refusal therefore depended on a lawful cancellation.
3. Applying R v Secretary of State for the Home Department, ex parte Khawaja [1984] IAC 74, the court had to decide whether the decision was justified by the evidence, rather than merely whether the officer had reasonable grounds. The Secretary of State bore the burden of proof to a high degree of probability.
4. The immigration officers had not obtained evidence that was reasonably available. They failed to check the University of Bedfordshire’s records or the available Tier 4 database, and failed to contact the alleged employers. The claimant’s enrolment was highly relevant, although not determinative. Her permitted work was not incompatible with studying.
5. The evidence showed that the claimant remained a student and intended to continue her studies. The Secretary of State was not justified in concluding that her purpose was work rather than study. The detention became unlawful after the examination, at about 14:35 on 28 December 2011, and continued until removal at about 08:00 on 29 December 2011.
6. There were no special features requiring an opportunity for legal advice before removal. R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin) did not apply to port cases, and R (Zonite Shaw) v Secretary of State for the Home Department [2013] EWHC 42 (Admin) concerned exceptional circumstances absent here. The claimant had access to a telephone. Fairness also did not require an interpreter, although her answers had to be assessed in light of her imperfect English.
7. General damages were assessed by reference to Thompson v Commissioner of the Police for the Metropolis [1998] QB 498. The claimant was awarded £3,509.48 general damages and £621.93 special damages, making a total of £4,131.41. Other claimed losses were unproved or attributable to her academic performance.