Ait-Rabah, R (on the application of) v The Secretary of State for the Home Department

A visitor who deliberately gives a misleading account of the intended length or purpose of stay may have obtained entry by deception, even where the visitor holds a return ticket. The court determines the relevant precedent facts on the evidence.

Procedural defects in an immigration interview do not automatically invalidate later decisions. The court must consider whether the defect affected the decision and may rely on interview answers where their accuracy is undisputed. A pending application under the domestic EEA Regulations does not itself invalidate immigration decisions taken before that application is determined. Detention remains lawful where removal is reasonably practicable and the detainee has had a prompt opportunity to challenge its legality.

The claimant, an Algerian national, entered the United Kingdom using a visitor visa while travelling with his Slovakian fiancée. After the couple gave notice of their intention to marry, the Secretary of State investigated the proposed marriage. Following an interview, the claimant’s leave to enter was revoked on the basis that he had obtained entry by deception, and he was detained.

The claimant sought judicial review, challenging the factual finding of deception, the interview and decision-making process, the effect of an outstanding application as an unmarried partner of an EEA national, and the compatibility of his detention with Article 5 of the ECHR. The court also considered whether the pending EEA application made the decisions unlawful.

1. Deception and illegal entry. The claimant’s answer at Luton Airport that he intended to leave the following day was deliberately misleading. The surrounding evidence showed that he had already formed an intention to marry and settle in the United Kingdom. Entry would have been refused had he given an honest answer. The Secretary of State was therefore entitled, and factually correct, to conclude that entry had been obtained by deception (paras 44–50).
2. Procedural impropriety. Home Office guidance did not prohibit asking whether a relationship was sexual, although detailed questions about sexual activity would ordinarily be unjustified. Any inappropriate conduct by the interviewing officer could not affect the detention decision, which was taken by another officer on substantially the same information. Even if a caution should have been given, the omission did not invalidate the decisions. The answers could be relied on because their accuracy was not disputed, subject to particularly careful review (paras 51–56).
3. Reasons. Errors in the revocation notice, including the retention of the word “failed” and reference to the wrong statutory provision, were immaterial. The notice nevertheless explained that material facts had been withheld and that entry had been obtained by verbal deception. The detention notice adequately identified the statutory basis and grounds for detention (paras 57–60).
4. EEA application. The outstanding application had not been determined and its date of receipt was uncertain. The Secretary of State was entitled to a reasonable period to consider it. Directive 2004/38 was not directly effective because it had been implemented through the Immigration (European Economic Area) Regulations 2006. On the material before the court, the claimant was not within the definition of family member in regulation 7. The pending application did not invalidate the decisions of 10 March 2016, and any challenge was premature (paras 61–68).
5. Article 5 detention claim. Subject to the pending EEA application, the claimant was removable forthwith. Applying the principles in ex parte Hardial Singh [1984] 1 WLR 704 and Lumba v SSHD [2011] UKSC 12, there was a sufficient prospect of removal to justify detention. The grounds had been adequately explained, and the claimant had been able to challenge detention promptly, including through judicial review and bail applications which he withdrew. Article 5 added nothing to the domestic-law challenge (paras 69–72).
6. Permission to apply for judicial review was granted, but substantive relief was refused (para 73).