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Caselaw

High Court Ruling on Unlawful Detention

Posted by Gunes Saybak on June 19, 2017

Chaparadza, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 1209 (Admin) 

This case was heard in the High Court (Administrative Court) and concerned a Judicial Review (JR) claim in which the Claimant sought to challenge his unlawful detention by the Defendant (“SSHD”).

Chronology

The Claimant was a national of Zimbabwe who entered the UK on 05/09/04 with leave to remain as a student. His leave was extended, on numerous occasions, by the Defendant. His last period of leave was granted until 31/07/11.

On 27/07/11, before the expiry of his leave, the Claimant applied to extend his right to remain in order for him to re-sit one of his exams in order to complete his Masters degree. This extension application was made outside of the Immigration Rules.  It had the effect of extending his leave to remain in the UK pending the decision on his application and any appeal against that decision, by virtue of s.3C of the Immigration Act 1971 Act (“section 3C”).

In October 2011, the Claimant’s application was refused on the basis that the he had failed to disclose a material fact – namely that he had criminal convictions. The decision was, however, erroneously sent by the Defendant, to the Claimant’s college and not to his personal address. He was therefore unaware that the application had been refused.

On 02/06/13, the Claimant was arrested for driving without insurance and obstructing a police officer in the execution of his duty. He was subsequently served with notice that he was liable to removal from the UK as a check on his immigration had revealed him to be an overstayer.

The Claimant then sought asylum on the basis that he feared persecution and harassment by the Zimbabwean authorities for reasons of his political and/or his imputed political opinions. Although notified by the Respondent as part of his asylum claim, the Claimant reiterated that he had not been aware of a decision in relation to his 2011 extension application. On 02/07/13 the Claimant’s asylum claim was refused and all his appeal rights were considered exhausted on 21/02/14.

Whilst complying with reporting conditions on 11/04/14, the Claimant was detained. He made further submissions in support of his asylum claim on 25/04/14. By way of a decision dated 06/05/14, the Claimant’s further submissions were rejected by the SSHD who refused to treat the submissions as having amounted to a fresh asylum claim. As the Claimant had no right of appeal he issued an application for permission to apply for JR.

The Claimant’s detention came to an end on 20/06/14 as the JR was considered a barrier to his removal from the UK.

Grounds for Judicial Review

The Claimant argued following three grounds:

  1. The failure of the SSHD to serve the decision refusing the 2011 application in accordance with the Notice Regulations
  1. The refusal of the SSHD to treat the further submissions submitted on 06/05/14 as a fresh claim for asylum;
  1. The lawfulness of the Claimant’s detention. It was alleged that there had been lawful basis for detaining the Claimant in view of his pending application for 2011 and the continuation of his leave pursuant to section 3C.

Decision of the Court

Ground 1 – Failure to Serve Notice

The court concluded, with reference to sections 3C and 4 of Immigration Act 1971 and Regulation 2 of the Immigration (Continuation of Leave) (Notices) Regulations 2006, that the Defendants power to grant leave to remain or to vary any leave was required  “…to be exercised by notice in writing given to the person affected” and that an application for variation of leave could only be considered as ‘decided’ when notice of the decision had been given to the Claimant.

The Claimant’s 2011 application extended therefore extended his leave under section 3(C)(2).It followed therefore that as the asylum claim was made before any legally effective decision on the Claimant’s 2011 application, it  could amount to variation of the original 2011 application. The court found that the asylum claim supplemented rather than supplanted the basis for the 2011 application by virtue of s 3(C )(4).

Further, the Claimant had not formally withdrawn of the 2011 application. This required the Defendant to consider all of the grounds for seeking leave to remain at the same time. The Defendant’s decision to refuse the Claimant’s asylum claim in 2013 could not amount to a determination of the 2011 application, as it provided no reasons for the 2011 refusal. Accordingly, the notice of the  refusal of the 2011 decision contained in the 2013 asylum decision was invalid

Ground 2 – Failure to treat further submission as a fresh claim

The court deemed this ground academic on the basis of its findings as to Ground 3.

Ground 3 – Unlawful Detention

The court held that the 2011 decision had been without any legal effect. This meant that the Claimant had a lawful basis to be in the UK as at 11/04/14 which, in turn, meant that there had been no lawful basis to have detained him.

The Claimant could only have said to have exhausted all his appeal rights at the time of his detention in respect of his asylum claim and not in respect of the 2011 decision. The fact that the Defendant believed that a valid decision had been taken in respect of the 2011 decision and that the Claimant’s removal was imminent did not provide a sufficient basis for detention

Conclusion

For the reasons above, the Judicial Review was allowed on Grounds 1 and 3 and the court allowed and that damages for unlawful detention in the sum of £10,500.

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