Luiz Henrique De Aquino v Secretary of State for the Home Department

An immigration interview must be procedurally fair. Where an applicant offers potentially relevant evidence, fairness may require the decision-maker to explore what corroboration is available and what reasonable steps could secure access to it.

Relief must nevertheless be refused under Senior Courts Act 1981, section 31(2A), where it is highly likely that the outcome would not have been substantially different. Previous overstaying and unlawful employment may rationally carry significant weight despite voluntary departure, a return ticket or personal ties abroad.

The claimant, a Brazilian national, sought judicial review of the refusal of permission to enter the United Kingdom as a visitor and of his detention at Heathrow Airport. He alleged procedural unfairness in the immigration interview and challenged the refusal as irrational. He also contended that his detention was unlawful.

The court considered whether the claim was academic in light of the claimant’s later conduct, whether the refusal was procedurally unfair or irrational, and whether any procedural defect justified relief.

1. Claim dismissed. The claim was not academic. The lawfulness of the refusal and detention fell to be assessed by reference to the circumstances known when the decisions were made. The claimant’s later conduct did not establish that he was not a genuine visitor.
2. The decision-maker was entitled to conclude that the claimant was not a genuine visitor. The interview addressed the purpose and length of the visit, occupation, family, marital status and immigration history, and some answers prompted further questions. The alleged ambiguities concerning ticket arrangements and company registration did not materially affect the decision.
3. Procedural fairness nevertheless required the decision-maker to explore what corroborative evidence of the claimant’s earnings was available and what reasonable steps could secure access to it. The claimant offered to show his bank account but was given no opportunity to access the internet or provide the evidence by another reasonable means. Reliance on the absence of documentary evidence was therefore procedurally unfair.
4. The irrationality challenge failed. The claimant’s previous substantial overstay and unlawful employment were relevant matters to which significant weight could rationally be given. His voluntary departure, return ticket, girlfriend in Brazil and grandfather’s recent death could receive little or no weight in that context.
5. Relief was barred by section 31(2A) of the Senior Courts Act 1981. It was highly likely that access to a telephone, laptop or other reasonable means would not have produced documentary evidence demonstrating the claimed income. The exceptional-public-interest exception under section 31(2B) did not apply.
6. Because the procedural defect would not have made a substantial difference, and the refusal was not irrational, detention was lawful and justified under paragraph 16(2) of Schedule 3 to the Immigration Act 1971. The parties were to draw up an order dealing with consequential matters, including costs.