Bhatt, R (On the Application Of) v The Secretary of State for the Home Department

Judicial review is concerned with the public law decision identified in the claim, and cannot ordinarily be used to introduce an unpleaded private law claim concerning a different decision. A period of detention may be unlawful, and may amount to false imprisonment, yet the appropriate remedy may require a separately pleaded private law action. An appeal allowing a challenge to removal does not itself restore expired immigration leave or require the grant of new leave. Where false documents were submitted without the applicant’s knowledge, that lack of knowledge may prevent removal on the ground of deception while leaving curtailment of leave lawful under the Immigration Rules. Claims under the Human Rights Act 1998 must identify the Convention right, alleged infringement and relief sought. Allegations of maladministration may appropriately be pursued through the public authority’s complaints procedure.

The claimants, Indian nationals, had been granted immigration leave after applications submitted by an adviser using fraudulent documents without their knowledge. They were later detained and removed on the basis that they had used deception. The Upper Tribunal allowed their appeal, holding that the removal decision was not in accordance with section 10(1)(b) of the Immigration & Asylum Act 1999 because they had not known of the adviser’s fraud.

The claimants subsequently sought judicial review, damages, restoration or grant of immigration leave, and other relief. The issues included the effect of the Upper Tribunal decision, the lawfulness of detention and removal, alleged maladministration, Human Rights Act claims, and procedural matters.

1. Application dismissed. The claim was inadequately pleaded and did not identify a sustainable public law error in the decision challenged. The claim form concerned an alleged continuing failure to act on the successful appeal, rather than the earlier detention decision. A private law claim for false imprisonment could not properly be introduced within judicial review proceedings concerning a different public law decision: BA v Home Office [2013] EWHC 1446 (QB), at [35].
2. The detention between 14 and 21 March 2012 was unlawful. Detention could be exercised only for the purpose of lawful removal, and removal under section 10(1)(b) of the Immigration & Asylum Act 1999 required the claimants to have used deception. The Upper Tribunal had found that they did not know of their adviser’s fraud. The admitted facts therefore amounted to false imprisonment, but any such claim had to be properly pleaded as a private law claim.
3. The Upper Tribunal’s decision did not restore or extend the claimants’ previous leave. Their earlier post-study work leave had expired, and later applications for leave outside the Immigration Rules had not been challenged. The court therefore had no basis to order the Secretary of State to grant leave.
4. The false documents justified curtailment under paragraph 322(1A) and rule 322A of the Immigration Rules, notwithstanding the claimants’ lack of knowledge. The illegality affecting removal and detention did not infect the separate curtailment decision.
5. The Human Rights Act 1998 claims were neither properly pleaded nor brought within the primary limitation period in section 7(5)(a), and no basis for extending time under section 7(5)(b) had been provided. Allegations of an undisclosed policy and other immigration-law breaches lacked the required specificity.
6. The Defendant’s delays and other failings might constitute maladministration and might support compensation, but the appropriate initial route was the complaints procedure: Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406; MD (China) v SSHD [2011] EWCA Civ 453. Relief from sanctions was granted for the Defendant’s late grounds of resistance, applying Denton v TH White Ltd [2014] EWCA Civ 904.

The court later explained that R(Boafo) v Secretary of State for the Home Department [2002] EWCA Civ 44 did not confer a freestanding jurisdiction to grant indefinite leave to remain. It concerned the lawful result on redetermination after quashing a refusal. No costs order was made.

First-instance judicial review proceedings. The judgment records that the First-tier Tribunal allowed the claimants’ appeals on 21 January 2013. The Upper Tribunal set that decision aside and retook the decision, allowing the appeals on 24 April 2013 because the removal decisions were not in accordance with section 10(1)(b) of the Immigration & Asylum Act 1999.