24 Oct 2016, 38 mins ago

The Court of Appeal in R (on the application of Radha Naran Patel) v SSHD [2015] EWCA Civ 645  has overturned an Administrative Court award of £125,000 damages against the Home Office to an Indian visitor for false imprisonment.

Mrs Patel arrived in the UK in May 2011 with valid entry clearance and a visitor’s visa. She was refused leave to enter at immigration control, and detained for five days pending removal. The Immigration Officer’s reasoning for denying entry and issuing removal directions were that, under interview, Mrs Patel had said she intended to work for her sister while in the UK. Mrs Patel refuted the claim that she intended to work and denied saying anything to that effect in interviews with the Immigration Officers (“IO”)

Mrs Patel brought a claim against the SSHD in the Administrative Court for damages for false imprisonment. The damages were claimed for “her unlawful detention, for the malicious and deliberate bullying and ill-treatment that she suffered when she was interrogated in detention, for the concoction and fabrication of admissions that she was alleged to have made in interviews which were known by the interviewing IO to be false and the opposite of what she was answering and for her unlawful detention”.

In the meantime, Mrs Patel successfully appealed against her refusal of leave to enter to the First-tier Tribunal. The Secretary of State was unrepresented and simply relied upon explanatory statements and interview records.

The damages claim was heard in the Administrative Court by a judge on the papers alone (ie without an oral hearing). In his judgment, the judge found that Mrs Patel had not intended to work and had not said that she did; that she had been subjected to at least five further interviews not referred to in the evidence, all conducted by one officer, who had deliberately concocted and falsified records, and that three officers had conspired to mislead the First Tier Tribunal and the Administrative Court. He found that the decisions to detain Mrs Patel were unlawful; violated Articles 5, 8 and 14 of the European Convention on Human Rights and awarded her £125,000 damages.

The SSHD then appealed the judge’s decision on liability and damages, submitting that the evidence before the judge was not capable of supporting his findings. The Court of Appeal allowed the appeal. It found that this was a wholly inappropriate case to have been determined on the papers, given the seriousness of the allegations being made. It said that the protagonists should have given evidence and subjected themselves to cross-examination. The judge should have transferred the case to the non-jury list of the Queen’s Bench Division or directed that it continue in the Administrative Court as a Part 7 claim. However, the Court blamed the parties, primarily the SSHD, for allowing the case to proceed in the way it did. The SSHD was lambasted for the ‘unaccountably cavalier attitude towards the proceedings’ and ‘glaring shortcomings’ in answering questions only in the most perfunctory terms and not ensuring that the officers in question were called to give evidence.

Whilst the Court found that the judge had been placed in a difficult and frustrating position, this did not allow him to draw inferences unsupported by the evidence or to justify him treating the absence of evidence as evidence to the contrary.

The appeal was allowed to the extent that the case was remitted to the Queen’s Bench Division to continue as a Part 7 claim.