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

Whether a person worked in breach of immigration conditions was not a precedent fact for the court to determine. The question was whether the Secretary of State’s conclusion was irrational or Wednesbury unreasonable, assessed against the information available when the decision was made. For detention under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, the question was whether there were reasonable grounds for suspecting that removal directions might be given. Paid and unpaid work fell within the employment restriction in the Immigration Rules. On the evidence available to the decision-maker, both detention and curtailment were lawful.

The claimant entered the United Kingdom on a family visit visa prohibiting work. Immigration officers found him alone behind the counter of an open shop. He was detained on 24 August 2018 and his leave was curtailed on 28 August 2018 on the basis that he had worked in breach of his conditions. He sought judicial review of both decisions and claimed damages for unlawful detention.

The central issues were whether the alleged breach was a precedent fact or instead reviewable on conventional public law grounds, whether the detention satisfied paragraph 16(2) of Schedule 2 to the Immigration Act 1971, and whether the interview process involved an actionable procedural error.

1. Disposition. The claim for judicial review was dismissed. The court invited the parties to agree an order and reserved consequential matters, including costs, if they could not be agreed.
2. Applicable standards. The question whether the claimant had worked in breach of his visa conditions was not a precedent fact. The relevant question was whether the Secretary of State’s conclusion, based on the information then available, was irrational or Wednesbury unreasonable. For detention under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, the Secretary of State needed reasonable grounds for suspecting that the claimant was someone in respect of whom removal directions might be given. It was unnecessary that directions had already been given or inevitably would be given ([29]–[32]).
3. Evidence and application. The court applied the approach in R v Secretary of State for Health ex p McVey [2010] EWHC 437 (Admin). In the absence of cross-examination, the defendant’s evidence was accepted unless the documents showed it could not be correct. The immigration officers’ observations, the claimant’s answers, his responsibility for opening and closing the shop, the evidence that he accepted money, and the cash found on him provided reasonable grounds for suspicion. They also made the curtailment decision rational. The Rules made clear that the employment restriction covered unpaid work.
4. Procedural points. Complaints about the interview guidance and questioning were not open to the claimant because they had not been pleaded and no amendment was sought. In any event, the guidance relied upon concerned a paragraph 17 arrest, whereas the claimant was detained under paragraph 16(2). The interview did not involve obscurity or a failure to probe answers sufficient to make the process procedurally unfair ([61]–[65]).

First-instance judicial review proceedings. Permission was refused on paper on 26 October 2018 but granted on renewal on 23 November 2018. The claim was dismissed by the High Court (Administrative Court).