MR JOHN BOWERS QC:
- This case is concerned with an entry warrant for search of shop premises and a subsequent search of the Claimant's home, by immigration officers. Both searches took place on 27 October 2011 as part of Operation Hasselhof, a mid tier operation by United Kingdom Borders Agency ("UKBA"). The Claimant was subsequently detained for several weeks. Uxbridge Magistrates Court granted a search warrant to the UKBA to search Quality Foods at 1-3 Uxbridge Rd Hayes ("Quality Foods") for four named persons whose names were given to the Court as having been generated through intelligence. The Claimant was not one of those names.
The Claimant
- The Claimant is an Indian national, bom on 23rd December 1981. She arrived in the UK with entry clearance as a student on 18th October 2010. Her husband accompanied her as a dependent on her student visa. She gained entry as a student reading for a postgraduate diploma in Hospitality and Tourism Management at the College of IT and E-Commerce ("CITEC"). Her visa was valid from September 2010 to January 2012.
The claim
- The Claimant seeks redress in this action for oppressive questioning, unlawful arrest, unlawful detention, unlawful search of her home, theft and / or failure to secure her home premises, and the wrongful declaration by the UKBA that she was an illegal migrant subject to removal under Immigration Act 1971 s.10 provisions. Very serious allegations are made about theft by immigration officers of her money and jewellery.
- Permission was initially refused on the judicial review application by His Honour Judge Gosnell on 7 February 2012. It was however granted, following an oral renewal hearing on 28 June 2012 by Mr John Howell QC, sitting as a Deputy High Court Judge. Parts of the application were considered unsuitable for further hearing in the Administrative Court list because of the contested factual allegations. Thus these matters were "spun off" to be heard in the Queens Bench Division and Particulars of Claim and Defence ("the new QB pleadings") were served following the giving of that permission. I have only been concerned in the trial with these matters and not with determining or reviewing the actual immigration status of the Claimant save insofar it affected the issues in the new QB pleadings. This status was relevant only when it related to whether the suspicion of the immigration officers about the Claimant were reasonable.
- On the first day of the trial, I allowed an amendment to the QB pleadings to contend that notwithstanding that the search warrant was for four named persons "the Defendant in fact carried out an enforcement visit which was intended to screen all persons present at Quality Foods for immigration purposes and that this went far beyond the scope of the warrant". I so decided (over the objections of the Defendant) because the matters were already to some extent "in play" and I did not consider that there was any prejudice to the Defendant in those matters being ventilated.
The witnesses
- I heard from the following witnesses for the Claimant:
1. Ms Poonam Rani who made three statements
2. Mr Onkar Chand Sunda, the Claimant's husband who made two statements.
- The Defendant's witnesses were:
1. Alexander Morgan Legg, Chief Immigration Officer of the West London Arrest Team of the UKBA, and at all material times on Bronze Command (that is authorised to approve searches/detention) on 27 October 2011.
2. Lyn Chadwick, the Immigration Officer in charge of the operation.
3. Immigration Officers David Roberts, Ian Richard Goodwin, Sayed Asher Hussein, Talvinder Singh Khasriya, Robert Kirk and Desmond Joanes, each of whom was deployed at Quality Foods on the operation, and some of whom thereafter assisted with the search of the Claimant's home.
Both counsel submitted very helpful skeleton arguments and also made extensive oral submissions.
- I consider all the immigration officers gave the court honest evidence in their statements and answers when questioned during the trial (save in one respect as set out below in the statement of Officer Hussein), as they were cross examined extensively by Ms Jones Counsel for the Claimant. They were all experienced officers and had been on many similar such operations. All were arrest trained.
Common ground
- Although much else was contested, the following important facts were common ground between the parties:
1. the Claimant was encountered just after 9am on 27 October 2011 at Quality Foods having worked there since March 2011.
2. she was seen by the immigration officers taking off and attempting to remove her branded Quality Foods overall.
3. she admitted to Immigration Officers that she had consistently exceeded 20 hours of work permitted under her Visa during the academic term of CITEC (although Ms Jones contends that this was gained by oppressive questioning and the Claimant says in her first statement para 5 "I incorrectly told them I worked full time which was untrue").
4. she was detained at Yarls Wood IRC between 27 October 2011 and 2 December 2011 pursuant to paragraph 16 of Schedule 2 of the Immigration Act 1971. She then made a successful application for bail.
5. 11 out of the 16 staff were arrested under immigration powers.
6. There had been a previous operation into a different Quality Foods premises about two weeks before which had found offending by several employees.
- I also find that
1. It is unlikely from what I heard that CITEC still functions; the Claimant believes that it has been ''blacklisted" and the College did not respond to two letters, one she sent and one by her solicitors. There was no definitive evidence given to the court.
2. The Quality Foods store was a very large site and required a large number of officers to search and secure (in fact there were twenty involved).
- I now deal in turn with the following issues which were in dispute (largely taken from the submissions of Ms Jones):
(i) What was the purpose of the UKBA's proceedings and search of Quality Foods in Hayes?
(ii) Why did the UKBA question the Claimant?
(iii) Was the Claimant properly cautioned?
(iv) What was the nature of the questioning of the Claimant and was it oppressive?
(v) On what grounds was the search of the Claimant's home authorised without a warrant?
(vi) Was the search wider than permitted by the provision governing such searches?
(vii) Did the search officers either remove items not listed on the schedule of the search, or fail to secure the premises such that other persons removed items, including cash and jewellery?
(viii) Did the search officers cause damage and unnecessary mess at the Claimant's home?
(ix) Did the UKBA reconsider detention in the light of the concerns raised about cautioning, searching and similar?
(x) what are the appropriate requirements of the cause of action in respect of unlawful detention?
In general I set out under each heading the relevant law before finding facts. I then consider how my findings of fact affect the various causes of action with which I am concerned which are limited to the QB pleadings.
Issues i&ii. The search warrant for Quality Foods
- Under s.15(6)(b) Police and Criminal Evidence Act 1984 ("PACE") a search warrant must identify, so far as is practicable, the articles to be sought in that search. By s. 16(8), a "search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued". A search which goes beyond the extent required for the purpose for which the warrant was issued would therefore be contrary to s. 16(8) and unlawful. There is no power for a random search to be conducted for immigration offenders: R v. Chesterfield Justices, ex parte Bramley [2000] Q.B. 576.
- Ms Chadwick who led this operation said that she believed that the magistrates who granted the warrant preferred to be given specific names for a search warrant; one can see why this should be, although Counsel accepted that it was possible to gain a search warrant for "persons unknown" at a particular site (which did not occur here). Ms Jones contended that the magistrates were misled in this case; the UKBA she said were telling them what they wanted to hear in that general (commonly occurring) names were put forward. What is clear is that the search warrant of Quality Foods was granted only in order to search for 4 named persons Mangat Khan, Kuldeep Singh, Mandeep Singh and Deepak Singh and documents associated with them (although the information by the
UKBA given for the search warrant was in much wider terms). None of those persons were found during the operation and I do not accept that much effort went into finding them (as opposed to generalised questioning of staff).
The briefing
- Officer Hussein said that he "was told in briefing to check the immigration status of everyone working there". Officer Khasriya told the court that although there were named suspected offenders "we would speak to everyone to see if they were named offenders". The briefing lasted about fifteen minutes and was conducted by Officer Chadwick.
- The actions of the immigration officers went beyond the permitted scope of the warrant and it appears that they were always going to do so given the contents of the briefing. The Quality Foods staff were assembled in a body and all questioned, only being eliminated if they were proved to be British citizens or had clear immigration status.
- Officer Khasriya said in his statement that the Claimant "attempted to hide the fleece under the till she was working at" on the sight of the immigration officers' arrival at the premises. If the Claimant had not drawn suspicion to herself I would have considered that this was in the case of the Claimant a random search of her, but given that she did so I believe that the officers were acting with the necessary reasonable suspicion in questioning her. They could not adopt "tunnel vision" because of the restricted terms of the search warrant and ignore her. I will resume this part of the narrative after considering the important question of whether the Claimant was cautioned.
Issue iii; The caution
- Ms Jones submitted that the Claimant was not cautioned at all and commented that even on the Defendant's own case she was not cautioned until two hours after the operation commenced; 11:35am was the first reported caution (in the Premises Search Book) but even that was not recorded in the cautioning officer's pocket book as it should have been. Ms Jones also said that the Defendant had a dilemma given the recorded facts:
a. if they had questioned her because of the fleece they should have cautioned her at 9 15 but clearly did not do so;
b. if they were questioning everyone it explains why they did not caution her.
- It is necessary first to consider the legal position on cautioning. Section 67(9) PACE provides:
"Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of [the PACE code of practice]"
The PACE 1984 Code of Practice C applies in this instance and states at section 10 when a caution must be given:
10 Cautions
(a) When a caution must be given
10.1 A person whom there are grounds to suspect of an offence, see Note 10A, must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect's answers or silence, (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution. A person need not be cautioned if questions are for other necessary purposes...
and examples are then given. The Code goes on to state:
(e) Documentation
10.13 A record shall be made when a caution is given under this section, either in the interviewer's pocket book or in the interview record, [my emphasis]
- Chapter 38 of the UKBA's Enforcement Instructions and Guidance sets out the cautioning which is required by immigration officers:
38.5. Cautions
As soon as there are grounds to suspect a person of an offence, he must be cautioned. The caution must take place before any questions (or further questions if it is his answers to previous questions which provide the grounds for suspicion) are put to him regarding his involvement or suspected involvement in the offence. Only if he has been cautioned may his answers or his silence (i.e. failure or refusal to answer a question or to answer satisfactorily) be given in evidence to a court in a prosecution. Section 10 of PACE Code of Practice C refers. ...Before you caution a person who is not under arrest, whether at a police station or not, tell him that he is not under arrest, he is not obliged to remain but that if he does, he is entitled to legal advice (see chapter 38.2).
- Chapter 61 of the same Enforcement Instructions and Guidance (Arrest Teams - Operational Procedures) includes the following passage:
61.11.2 Pocket Note Books (PNBs)
All officers must ensure they maintain full and, where possible, contemporaneous records of all operational activity. You should remember that your actions could be questioned many years after the event. It is essential, therefore, that you complete full notes of any arrest or other incident. A seemingly innocuous encounter may later produce allegations that will be difficult to refute in the absence of evidence. Notes should be written, therefore, as soon as possible after the event and while the events are still fresh in your mind.
In completing your notes, you must include not only the facts but also your honestly held beliefs about an incident in order to justify your actions.
- The meaning of a "caution + 2 interview" is spelt out in Chapter 37.2.1.
Caution + 2 Interviews: What is a Caution + 2?
Immigration officers have parallel but distinct criminal and administrative powers. They have criminal powers of arrest, entry, search and seizure etc in respect of specified offences. They have separate powers of arrest, entry, search and seizure etc with a view to detaining a person subject to immigration control, and removing him from the UK.
Caution + 2 interviews are only to be used when exercising administrative powers.
The wording for the Caution + 2 consists of the criminal caution:
"You do not have to say anything but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence"
followed immediately by the "+2" part of (i) you are not under arrest; and (ii) you are free to leave at any time.
- The relevant Immigration Officer here, Officer Hussein, states in his witness statement that the Claimant was cautioned by him. The Claimant strenuously denies this. I think that the Officer is the more reliable witness for reasons I will consider generally below. Here the fact that there was a caution is corroborated by notes made at the time (which I find to be reliable), albeit not made in the correct place. Officer Hussein did not note this in his pocket book as he should have done (nor did any of the other officers) but I am satisfied he did give the caution because
a. Officer Hussein told the court that he always cautioned in those situations and that he does make sure they understand; he is an experienced officer and Home Office interpreter.
b. There is a contemporaneous record of the caution in the Premises Search Book albeit that Officer Banfield who produced that book was not called as a witness; although it is true that there is a ten minute discrepancy between the two recordings of the caution I do not regard that as significant. Moreover I note that the Published Guidance makes provision for the caution to be noted in the interview record and I consider the Premises Search Book to be an analogous document.
c. Officer Hussein's witness statement included at Trial Bundle page 116 which states that there was a caution + 2 and this was completed on the day of the arrest.
It was also significant that when she was asked in cross examination "Before arrest were you told you could leave" the Claimant was not categoric that she was not so told, but said that she does not recall.
- I was, however, not at all impressed by the attempt of Officer Hussein to suggest in his witness statement that the reason he did not note the caution was because of officer safety issues (para 5 of his witness statement). There is no basis for such a contention. No-one was arrested for violence during the operation, threatening violence, or threats of any kind during this operation. As Ms Jones states "The 12 or so Immigration Officers were at the premises for more than 4 hours in total, a length of time which allows for a person to write 'caution x 2' or even 'c x 2' several times in his notebook."
- I think there were two languages the Claimant understood quite clearly (English and Hindi). I so find because she was able to answer questions in court in English before asking for an interpreter half way through her cross examination. I am satisfied on the balance of probabilities that the Claimant was told in a language she understood that she did not have to say anything and that it was clear to the claimant she could leave if she wanted to.
Issue iv; The questioning of the Claimant
- It is necessary to consider whether the exceeding of the search warrant rendered the questioning of the Claimant at the Quality Foods premises unlawful. Ms Jones accepted (on the authorities) that the officers executing such a warrant do not have to adopt "tunnel vision" when they reach the premises but she said that the nature of the briefing here made this visit to execute the search warrant unlawful from start to finish, and that unlawfulness in effect infected all that followed, including the prolonged detention of the Claimant in Yarls Wood IRC. Even had the caution not been given, however, the starting point is that the Claimant's answers were, at least, relevant to the decision to arrest and/or detain.
- There are indeed separate powers to arrest and detain from the power to search premises. Schedule 2 to the 1971 Immigration Act, as amended, allows immigration officers to locate, arrest and detain for removal those in respect of whom there are reasonable grounds for suspecting that removal directions may be given, pending a decision whether or not to give such directions.
- Paragraph 16 provides, so far as material:
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs [8 to 10A] or 12 to 14, that person may be detained under the authority of an immigration officer pending—
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions.
- Chapter 31.13 of the Defendant's Enforcement Instructions and Guidance provides in similar terms:
"During visits to ... places of employment, people should be "invited to answer questions" about their immigration status only if there are reasonable grounds to suspect that they are immigration offenders (Singh v Hammond)
If the purpose of the visit is to locate a named offender, you should usually only question people on the premises to eliminate them from enquiries.
- The Chapter then gives specific examples "where it is justifiable to invite a person other than the named offender to answer questions". These include:
"where a person gives reasonable cause for suspicion that he is an immigration offender, for example
- By his behaviour (for example an attempt to conceal himself or leave hurriedly
....
- If a named offender is located at a place of employment and there is reason to believe that other employees are offenders where the employer has a history of engaging immigration offenders
- I do think the questioning of the Claimant falls within these categories. I must now go on to consider whether the questioning was oppressive, in which event the reliance that can be placed upon them in these civil proceedings would be minimal. In Ghulam Yasim v Secretary of State for the Home Department [1996] EWCA Civ 707, the Court of Appeal rejected the submission that, in a civil claim, sections 76 to 78 PACE precluded reliance altogether upon any evidence by an interview without a prior caution. Those exclusionary provisions were confined, the Court made clear, to criminal proceedings.
- The Court however emphasised that
1. Were the court to be satisfied that answers had been obtained by oppression, the weight to be accorded to evidence may nonetheless be reduced so that very little, if any weight could be accorded to it.
2. oppression requires the exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc, or the imposition of unreasonable or unjust burdens "in circumstances which almost always entail some impropriety by the interrogator".
- The Divisional Court established in Singh v Hammond [1987] 1 WLR 283 that, having regard to section 4(2)(c) of the 1971 Act which provides that the provisions of Schedule 2 shall have effect with respect of the exercise by immigration officers of their powers "for purposes supplementary to the foregoing provisions of this Act"
1. An examination formed an integral part of the powers of immigration officer's functions and duties in relation to investigating whether persons have entered or remained unlawfully (page 289).
2. Such an examination can properly be conducted by an immigration officer away from the place of entry and on a later date if the immigration officer has some information in his possession which causes him to enquire whether the person being examined is a British citizen and if not whether may have entered the UK without leave (page 290).
3. a person who is subject of an examination under paragraph 2 is further, by paragraph 4(1) of Schedule 2, under a duty to furnish the person carrying out the examination all such information in his possession as that person may require for the purposes of his functions (page 288).
None of the provisions are dependent on the prior obtaining of any judicial or other authority.
paragraph 4(1) of Schedule 2, under a duty to furnish the person carrying out the examination all such information in his possession as that person may require for the purposes of his functions (page 288).
None of the provisions are dependent on the prior obtaining of any judicial or other authority.
- Although I accept that the Claimant was distressed by the questioning (in particular as stated in her main witness statement, paragraphs 5 to 7) I do not consider it unreasonable or oppressive within the relevant definition just stated. There was nothing conducted in a burdensome, harsh, or wrongful manner; with unjust or cruel treatment of subjects, inferiors, etc, or the imposition of unreasonable or unjust burdens. They were on the contrary necessary questions to ask in the circumstances. Those suggestions of oppression were indeed not put squarely to the Defendant's several witnesses when they were giving evidence by Ms Jones.
- It is important to note that in those answers to the immigration officers, the Claimant confirmed:
1. that she continued to attend College, and was permitted to work 20 hours per week in that capacity; this is contradictory to the suggestion elsewhere and later that the College term had finished.
2. that she had worked at Quality Foods since March 2011 on a full time basis, with a working pattern comprising up to 35 hours per week. She went on to say she was paid "only £3 per hour cash in hand...the owners are bad".
She also signed the note book after the questions and the answers are recorded to the effect that she worked about 30 hours a week but she now says that she did not know what she was signing when she was asked to sign Officer Hussein's notebook. I am satisfied that she did know what she was signing and that she had more than enough English to understand what had been written.
- Ms Jones is, however, correct that even on the Defendant's own case what was done by the immigration officers breaches Code C para 10.13. There was no written record of the interview in a foreign language; I do not however think that anything flows from this in term of loss and I regard this breach although unfortunate as purely technical.
- On the evidence which I have heard, I am satisfied that
1. the story which the Claimant latterly gave of covering for a colleague on the day of the operation was a late considered excuse for being found to be working in her uniform a full shift (which she knew inculpated her); it was noticeable that two different explanations for her working were given in the evidence before the court, one that she was covering for someone because of Diwali, and the other that it arose because of the sickness of a colleague. The latter story was given by her husband in evidence but presumably derived from her initially. I do not think that in reality she was covering for another but rather this was part of her normal shift or at least that there was a reasonable suspicion to this effect;
2. t he work which she says she submitted to the College (two assignments of which are in the Trial Bundle) was not in fact her work at all; it was in my view far too sophisticated to have been written by her, not least given that she claimed that she needed an interpreter part way through her evidence and the two assignments she said she submitted were in almost word perfect English. This affects her credibility and is one of the bases on which I prefer the evidence of the immigration officers over her evidence where it is in conflict.
- Further, the assignments cannot record her own experiences as they purport to do. The Claimant chose as the subject of her second College assignment contained in the Trial Bundle a restaurant in Atlanta, Georgia which the assignment suggested she had actually visited although in evidence she denied that she had done so. Having said that these assignments were the finished article, she later sought to renege from that and say they were rough work to be corrected. There was also no evidence of acceptance of either assignment by the College (nor indeed anything save a handwritten note to tie the assignment to the College at all). She was very vague as to why the necessary third and fourth assignments were not completed. This also contrasts with paragraph 5 of her second witness statement that "I had completed all of my assignments".
- On 27 January 2013 Bhogal Partners wrote on behalf of the Claimant to CITEC saying that "after August 2011 our client [the Claimant] was neither made aware of nor informed of the final term date". This was crucially the period in which our client was required to submit her research project that would determine her final grade to complete the course she was on.
Issue v; The search of the Claimant's home
- As in previous sections of this judgment I consider first the law then apply it to the facts. A search of the Claimant's home was conducted without a warrant under the Immigration Act 1971, Schedule 2, s.25A(2). This power provides:
25A(1)This paragraph applies if—
(a) a person is arrested under this Schedule; or
(b) a person who was arrested by a constable (other than under this Schedule) is detained by an immigration officer under this Schedule.
(2) An immigration officer may enter and search any premises—
(a) occupied or controlled by the arrested person, or
(b) in which that person was when he was arrested, or immediately before he was arrested,
for relevant documents.
(3) The power may be exercised—
(a) only if the officer has reasonable grounds for believing that there are relevant documents on the premises;
(b) only to the extent that it is reasonably required for the purpose of discovering relevant documents; and
(c) subject to sub-paragraph (4), only if a senior officer has authorised its exercise in writing.
(6) The officer authorising a search, or who is informed of one under sub- paragraph (5). must make a record in writing of—
(a) the grounds for the search; and [my emphasis]
(b) the nature of the documents that were sought.
- In Bhatti v Croydon Magistrates Court [2010] EWHC 522 (Admin) search warrants had been obtained, and the details of the address(es) to be searched had been filled in by hand as the warrant was executed, rather than the schedule to the warrant showing the addresses being provided to the occupiers of the premises.
- The Court found that there had been a breach of the requirement to provide a copy of the warrant. At paragraph 21 the court stated:
Parliament...has stipulated what the householder should be told by way of assurance that the searchers have the authority they claim, and it has done so by requiring a copy of the warrant, not a copy of part only supplemented by further information provided by the executing officer, which is in essence what the current practice provides.
- At paragraph 22, the Court said:
It has been emphasised in the authorities time after time, at least since Lord Camden CJ's seminal speech in Entick v Carrington (1765) 2 Wils 275 that nobody should be allowed to enter uninvited into someone's home without very clear justification in law. Where conditions for the exercise of the power to search are imposed they must be properly and stringently complied with.
- In Faisaltex Ltd & Ors, R (on the application of) v Crown Court Sitting At Preston & Ors [2008] EWHC 2832 (Admin) (21 November 2008):
The requirements which have to be met for the issue of a search warrant, whether under section 8 of PACE or under Schedule 1 thereof may seem numerous and onerous. But as the courts have repeatedly emphasised, that is only to be expected when a police officer is seeking authority to enter a person's home or other premises without that person's consent and to search for and seize items present there. It has rightly been described as a draconian power (see R v. Guildhall Magistrates' Court, ex parte Primlaks Holdings Co. (Panama) Inc., [1990] 1 QB 261, 272, and as Latham LJ put it in R (Redknapp) v. Commissioner of City of London Police [2008] EWHC 1177 (Admin):
"The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person's home. " (paragraph 13).
- I thus decide this aspect on the basis of the need to find proper and stringent compliance as required by Bhatti. Bhatti was concerned with search warrants. The power used in this case to search the Claimant's home without a warrant is even more draconian.
- Here no (or certainly insufficient) grounds for the search warrant were given in writing. The notice states that the grounds for the search are, "After Arrest" and the documents sought are, "Documents establishing identity and nationality".
- CIO Legg was asked whether he knew what was said that made him think there was a passport in the premises but could not say so. Ms Chadwick said that it would be standard procedure to search in such a situation and one can immediately see the sense of that position, given that the passport was not with the Claimant at the shop, and it was likely that it would be (if anywhere) at her home.
- I however accept Ms Jones' submission on the authorities that the chief immigration officer who authorises a search without a warrant must turn his or her mind to whether reasonable grounds exists for the search. There is no basis for thinking that he did so here given that the only record of the reason on the form is "search after arrest". The power only arises after arrest in any event. So the arrest cannot be grounds for the search and only this is put forward.
- Mr Thomann is correct in his submission that Para 25A(2) does not specify the precise form in which the written authorisation is to be recorded and that the Claimant was provided with an "Arrest Team Search Authority" form informing her
1. of the property to be searched.
2. that the power of search was being exercised under para 25A(2) of Schedule 2 in respect of a premises controlled or occupied by a person arrested for an offence under Schedule 2 of the Immigration Act 1971 - and that person was named as the Claimant.
3. the evidence sought was documentation establishing her nationality or identity.
- Nevertheless I consider that there has been a breach of s25A (1) (6) because details of grounds are not given. I do not however consider that this rendered the subsequent detention unlawful and it had only a limited effect as discussed below.
Issues vi vi viii: The search of the premises
- The Claimant took officers after her questioning to her premises, a small annex/garage located at the rear of 136 Brent Road, Southall known as 136A. She led officers to where she stated she believed her passport to be. When it was not found, the property was searched, whilst the Claimant was escorted to the cellular vehicle outside. A Premises Search Book was kept, which recorded in some detail the time of entry and exit, as well as documents found. Her passport was not located although the passport of another person was. A copy of the authority to search the premises following arrest, and a copy of the information to the occupier were left on the kitchen worktop.
Interference with goods
- It is contended in paragraphs 10 and 15 of the Particulars of Claim that "the seizure of [the Claimant's] possessions by the Defendant's officers constituted a wrongful interference with goods". Jewellery is claimed in sum of £2132.28, cash of £3000 "taken from the Claimant's family member" (this as pleaded runs into the problem that the brother in law was not a party to the action) and "two house keys worth £10".
- Miss Jones says that the evidence bears out the pleading that the premises were left in a state of serious damage and messiness that had not been present before the search; that valuable items were missing, and the door was not secured. In her skeleton argument she says "Either items were taken from the premises, or the premises were left unlocked and some other person removed them. In either event, it is submitted that the Defendant bears responsibility for the loss of the cash and gold." I do not accept that the words underlined fall within the pleaded case.
- Mr Sunda says that he returned with his brother at 6pm and found the door unlocked. I do not accept that the door was left open when the immigration officers departed. The locking was recorded in the premises book kept by the officers. No complaint was made about that at the time as one might have expected if this were so. It was only much later that this allegation emerged. It is also notable that Mr Sunda said that beds had been damaged in the search but this is not shown on the photographs.
Suitcases
- Paragraph 16 of the Particulars of Claim assert that "her possessions were damaged as a result of the officers raid and searching the property... 13 suitcases which [sic] zips, lining and compartments were broken and damaged and in need of replacement". I am also not satisfied that any suitcases were damaged because
a. there was no mention of suitcases being damaged in the original witness statements of the Claimant or her husband
b. t he standard method used by immigration officers in these circumstances is to put a biro through the zip and not to tear open the suitcases as the photos suggest happened. The reason for doing this is the suitcase can then be resealed; it separates the teeth of the zip.
Necklace
- I also do not accept the Claimant's evidence that her brother in law had just given her a necklace worth over £2000 on the day before for Diwali. It seems very strange that he should happen to give it then when the receipt which is contained in the Trial Bundle was from as long ago as 2009. It was noticeable that the Claimant's brother in law who could have easily cleared up this point (and the alleged giving of £3000) neither gave evidence nor put in a statement.
The cash
- Without corroboration from the brother in-law (and I was given no reason why he might be unavailable), I am not prepared to accept that he (the brother in-law) made money in the sum of £3000 available to the Claimant and her husband (according to them for the purposes of a visa application). In any event I do not accept that the officers took the money which is the only allegation that is pleaded (there is no plea of negligence). Ms Jones sought to develop a point that there was negligence on the part of the officers which allowed someone else (unspecified) to take the money but I do not believe that the officers left the premises unlocked. Rather as they all said the premises were secured by locking the door.
- I do not accept that the property was left by the Immigration Officers in the condition shown in the photographs which were presented to the court; it is obscure precisely when the photographs in the bundle (other than those related to the suitcases) were taken. Further they would not find the passport easily if it were in such a state. I infer that either they depict some other break in (which had nothing to do with the officers) or the premises were dishevelled for the sake of gaining damages in this case.
Staying in the UK
- Ms Jones sought to develop a case that the Claimant was entitled to damages for the period she has remained in the UK because after her leave was cancelled on 27 October 2011 she was then left in limbo ie she cannot work and she cannot study. I do not accept that this is contained in the pleadings but in any event it appears to be misconceived.
Issue ix: Detention
- Finally I consider the effect of what has gone before on the Claimant's detention. The UKBA has issued an IS151A notice, and intends to remove the Claimant and her husband under the Immigration Act 1971 s.10 although I am told that the Claimant has now put in a Tier 4 application.
- In the Particulars of Claim paragraphs 5d and 6 it is said that the Claimant was served with an illegal entry notice for allegedly working more than 20 hours without proper cause or evidence that the Claimant had breached the terms of her visa or committed an offence. Ms Jones stated that there is no evidence upon which the reasonable immigration officer could conclude that she was working in breach, and therefore removal cannot possibly be imminent. As the Claimant has leave to remain in the UK, she should never have been detained, and her continuing detention was also unlawful.
- Miss Jones further submits in her skeleton argument: "The Claimant obtained employment in March 2011 at Quality Foods, in Hayes. She has continued to study in addition to the part-time work. The Claimant was on a staff rota, and did not work more than 20 hours in any term-time week (para 4). The evidence that the Claimant has breached the terms of her visa is extremely thin". She goes in to say "The interview with the Claimant, conducted as detailed above in flagrant breach of the law, could not provide a reasonable suspicion that the Claimant would be removed, and therefore the arrest was unlawful.... As the Claimant has leave to remain in the UK, she should never have been detained, and her continuing detention was also unlawful".
- I do not accept any of this submission. The UKBA Guidance states in Chapter 50:
50.6. Section 10(1) (a) - Working in breach
A person is liable to administrative removal under section 10 if found to be working in breach of a restriction or prohibition on employment. The breach must be of sufficient gravity to warrant such action.
There must be firm and recent evidence (within 6 months) of working in breach, including one of the following:
- An admission under caution by the offender of working in breach
- I have no doubt that there was reasonable suspicion that the Claimant was working in breach of her visa conditions arising from:
a. Her answers to questions under caution referred to already which amounted to an admission;
b. The suspicious nature of the excuses given by her as to why she was working on the day of the search and the fact that I was told that the rosters appeared to be prepared for many weeks in advance.
There is also the lack of reality of the assignments for the College, although there is no evidence before me that the immigration officers relied on this feature at the time.
The correct legal test
- There was a difference between Counsel as to the correct test of proximity to establish the cause of action in damages. Ms Jones appeared to contend for a but for test; Mr Thomann said I needed to be satisfied that there is a "close connection" between any unlawful act and unlawful detention. Given that there was he said a separate statutory authority to question an immigration offender there was he said here no relevant link between the warrant of search and the detention.
- I accept Mr Thomann's written submission that it does not follow that the exceeding of the warrant rendered unlawful the Defendant's subsequent detention. The lawfulness of immigration detention is to be tested by reference to the four principles stated in Hardial Singh [1984] 1 WLR 704. Detention must be for the purposes of removal. It must not exceed a time which is reasonable in order to effect removal. Where it becomes clear that removal will not be achievable within a reasonable timeframe, the subject must be released. The Secretary of State must further act with reasonable expedition.
- Each of these conditions was, at the material time, fulfilled (and I did not detect an attack on this by Ms Jones who relied on the prior unlawfulness with which I have already dealt). The suggestion that detention was in those circumstances vitiated by any unlawfulness underlying the preceding search exercise, and that this gives rise to a claim for substantive damages, is not sustainable on the facts of this case as I have found them.
- There is here an insufficient close connection between the limited ground of unlawfulness I have found proved and the exercise of the power to detain. The Supreme Court considered in Kambadzi v SSHD [2011] 1 WLR 1299 a breach of the Defendant's public law duty to review detention regularly. In considering whether a breach of this
duty rendered detention unlawful, the Court said that the Claimant needed to show that the breach of legal duty relied upon was "sufficiently closely connected" to the authorisation of detention to provide a qualification to the authority to detain (per Lord Hope at paragraph 51, per Baroness Hale at paragraph 71-3).
- In that case the relationship between review and the exercise of authority to detain was "very close", such that the two "go hand in hand" (paragraph 52). Here, by contrast, the statutory basis for questioning, in Schedule 2 of the 1971 Act, stands independently of the terms of the warrant of entry. The decision to authorise detention was based not on items seized at the premises, but on the answers the Claimant gave under caution (which she signed as accurate) following questioning authorised under the Act. The scope and purpose of the entry warrant was, in those circumstances, a part of the background leading up to questioning. There was no direct nexus with the decision to arrest and detain.
- Any claim to substantive damages would need to demonstrate causation. As Baroness Hale explained in paragraph 74 of Kambadzi:
"The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done. "
(see also per Lord Hope at paragraph 56, indicating that any damages award would need to be justified "on normal compensatory principles")
- The Court of Appeal has since confirmed the correctness of this approach in R(OM) v SSHD [2011] EWCA Civ 909:
"It seems to me that on normal compensatory principles it would be for the claimant to prove his loss on the balance of probabilities. " (para 23; also para 20).
- Where, as here, it is clear that the Claimant could and would, on the balance of probabilities, have been questioned lawfully and thereafter detained regardless of the ambit of the warrant obtained, substantive damages for the scope of the search cannot be sustained. To put it another way, in view of inter alia, the Claimant's conduct upon arrival (which her own counsel suggested should have led to caution there and then), she is unable to make good that any breach of law about the scope of the visit on 27 October 2011 affected her adversely.
Damages
- The search of Quality Foods beyond the persons referred to in the search warrant has not caused the Claimant's subsequent detention nor does it render that detention unlawful. It is part of the history of events given the reasonable suspicion of the Claimant caused by the removal of the fleece and subsequent lawful questioning.
- In my view the Claimant's detention also cannot be said to be unlawful by reason of the only potentially causative breach which I have found (namely the failure to identify the grounds of search of the Claimant's home).
- The Claimant may and I emphasise may be entitled to damages for the breach just referred to in the previous paragraph. Since the issue of the level of damages was only addressed briefly in submissions by both Counsel (as is understandable given the various permutations of liability) I propose to allow Counsel to address me when judgment is handed down on what the proper award (if any) should be given my findings.
- They can also then deal with any other consequential matters (if these cannot be agreed before the handing down).
