Immigration officers are not required to verify your story

Immigration officers are not required to verify your story

R (on the application of Pereira Campos) v Secretary of State for the Home Department [2022] EWHC 3299 (Admin) holds that the Secretary of State is not required to verify a person’s account before cancelling their leave for breach of restrictions.

Brief facts of the case:

Mr. Pereira Campos (‘claimant’) visited the UK from Brazil with a visit visa in November 2021 with the intention of seeing friends for 10 days.

On 1^st February 2022, during an enforcement visit to a residential address where the claimant was staying, immigration officers discovered what they believed was evidence that the claimant was working for Deliveroo, which would be in breach of his immigration status. Visitors are not permitted to work, in accordance with Immigration Rule V4.4 in Appendix V: Visitor.

This evidence included the Deliveroo app on a phone the claimant was using; a motorcycle registered in his name; a motorcycle helmet; motorcycle boots; and Deliveroo clothing. During the enforcement visit, the Claimant was interviewed with a Portuguese interpreter and disputed the claims of the immigration officers. He stated that the phone belonged to his friend; that the boots and clothing were not his; and that his friend asked him to register the bike in his name because they couldn’t get insurance.

The immigration officers did not accept this. The Claimant was served with a RED.0001 liability notice and an IS.91.R (reasons for detention and bail rights notice) in accordance with section 120 Nationality, Immigration and Asylum Act 2002 and he was detained pending his removal. His visit visa was cancelled.

On 11^th February 2022, the Claimant signed an IS.101 (voluntary departure disclaimer form) and was subsequently issued with removal directions scheduled for removal to Brazil on 20^th February 2022.

However, prior to removal, the Claimant changed his mind, and sought a Judicial review.

Issues:

The grounds for the review were as follows:

• Ground 1a:
  • The decision to cancel his leave was irrational, that there were too many ‘gaps’ in the Secretary of State’s narrative
• Ground 1b:
  • There was procedural unfairness in relation to the cancellation decision, on the basis that he did not fully understand what was happening during the enforcement visit, due to linguistic barriers.
    • This was dismissed when the Secretary of State submitted the an interview transcript and witness testimony from the immigration officers
  • He then claimed that the cancellation of his visit visa was unreasonable and/or procedurally unfair since the immigration authorities failed to take efforts to substantiate his version that it was his friend working for Deliveroo, not him. He further claimed that the officers were rude and did not issue him a caution.
• Ground 2: The decision to detain him was unlawful, for the above reasons

The Claimant is seeking the following orders:

1. An order quashing the cancellation of his leave
2. A declaration that his detention was unlawful

• An order that the Defendant pay him damages and costs

What did the court find?

The Judge dismissed all of the grounds, ruling that the officers were within their rights to

conclude that Mr. Pereira Campos was operating unlawfully based on his responses and behaviour. The Judge held that there was no duty for the immigration officers or the Secretary of State to investigate the claimant’s narrative, which was referred to as “implausible”.It was also found that Mr. Pereira Campos could have submitted alternative evidence once he was issued a section 120 notice but chose not to. Concerning the officers’ rudeness, the Judge relied on the interview transcript, which revealed no indication of improper questioning.

With regards to the caution, it was determined that it was not necessary for an initial administrative review and that the lack of a caution did not deem the decision-making process unfair because Mr Pereira Campos was aware of the claims against him and was given to opportunity to reply. Ultimately, the Judge determined that the cancellation and detention was legal, and the Judicial review claim was rejected.

Additional Comments:

In order to ensure procedural fairness, the Secretary of State may be required to inform an applicant of their concerns before they reach an adverse immigration decision. As detailed in Balajigari v Secretary of State State for the Home Department [2019] EWCA C v 673, this would enable an applicant/claimant the opportunity to provide an innocent explanation that the Secretary of State will have to consider.

In De Aquino v Secretary of State for the Home Department [2022] EWHC 2730 (Admin) (31 October 2022), The High Court held that this requirements may include providing an interviewee with internet access in order for them to submit proof supporting their responses.

However, Mr. Pereira Campos’ case demonstrates that there is no mandatory requirement for the Secretary of State to do their own investigation to either prove or disprove an explanation. The onus is therefore on the Applicant to present all information which they would like to be reviewed and taken into consideration.

By: Jenny Comani