PRINCE VIJAYKUMAR BHATT & DHARINI VIJAYKUMAR BHATT V SECRETARTY OF STATE FOR THE HOME DEPARTMENT
The Claimants, a brother and sister who are nationals of India initially entered the UK lawfully on student visas, then on completion of their studies they applied for leave to remain under the post study category which were granted in 2008.
The Claimants then submitted applications for further leave to remain under the post-study work route using the assistance of an immigration advisor. Unbeknown to the Claimants the immigration advisor they had instructed submitted their applications with false information and fraudulent documents.
As a result of the contents of the applications the Claimants were thought to have used deception in attempt to remain in the UK; resulting in the Claimants being detained for seven days and then removed from the UK. The detention and removal of the individuals should not have occurred, as they were unaware of the fraudulent documents within the application, which has been considered as an "oversight" by the Defendant, Secretary of State for the Home Department.
The brother and sister then proceeded to submit an appeal from outside the UK which were again mishandled by the Defendant resulting in documents being lost, and delays with the processing of the application. Subsequently the appeal was successful, and the Claimants were then given leave to enter the UK for a month to allow time to resolve their issues with their immigration a status in the UK. During this time the Claimants submitted applications outside the immigration rules for leave to remain in the UK. Both applications were refused and Mr Bhatt was not offered a right of appeal; however Ms Bhatt did not choose to appeal her refusal.
The Claimants then applied for Judicial Review of the Defendants decision which raised a number of issues such as breach of rights and that they should be issued leave to remain in the UK and requesting compensation for a damages on several grounds.
The judge dismissed the judicial claim as she said there was "no proper basis" because the Claimants did not initially claim for false imprisonment in the claim form. It was also thought that the damages for unlawful imprisonment would fall within the limitations of a private law claim. She also stated that the claims of a breach of Human Rights under ECHR Article 8 and ECHR Article 3 were not specified in detail within the statement of facts and grounds within the skeleton argument submitted. The Claimant's various allegations of breaches of immigration law were not specifically listed in the submissions.
The judge did agree that the Defendant did not deal with the Claimants' cases appropriately and that as a result the brother and sister had suffered considerably. However, that the Claimants should have attempted to resolve this through the Secretary of State's complaint system before making a Judicial Review application.
The Defendant has issued an apology to the Claimants for how they were unlawfully treated; however no compensation has been offered.
It is important that all individuals seeking assistance from an immigration advisors have checked that the firm is regulated; and that they are are aware of the documents which have been included with their UK immigration applications to avoid any issues similar to the above.