25.03.2014 – In the case of R (on the application of Thapa) v Secretary of State for the Home Department [2014] EWHC 659 (Admin) Mr Thapa sought judicial review of the Secretary of State’s decision to make directions for his administrative removal, in the exercise of her discretion under the Immigration and Asylum Act 1999, s 10(1)(a) (IAA 1999) and of her decision to remove him from the jurisdiction. Allowing the claim, the Administrative Court decided that there had been no evidence that the Secretary of State had appreciated that she had been exercising a discretion, rather than taking action which had followed automatically from her belief that there had been a breach of Mr Thapa’s visa.

What is the significance of this decision?

Mr Thapa, a Nepalese student, has brought foreign catering workers blinking into the light of public law principles–that discretion must be exercised and exercised fairly before they can be summarily removed.

Mr Thapa had worked in a restaurant while he had permission to work as a student. When his leave was varied to prohibit work, he says he stopped working. He was detained by immigration officers in the same restaurant–he said he was socialising with his friends, the immigration officer said he was working. He was detained and served with a decision summarily to remove him, as a person with limited leave in breach of his conditions, under IAA 1999, s 10(1)(a).

In question were:

o the jurisdiction of the High Court to establish a precedent fact–that Mr Thapa was working in breach of conditions, a pre-condition to the decision to remove

o the circumstances in which a case is sufficiently ‘exceptional’ for the High Court to agree to review it while there is an alternative appeal right, and

o the exercise of discretion by the decision-maker both when choosing which enforcement route to take–to remove for breach of conditions of limited leave (which engages speedy removal with only an out of country appeal, Nationality Immigration and Asylum Act 2002, s 82(2)(g) (NIAA 2002)) or to curtail leave (which engages an in-country right of appeal (NIAA 2002, s 82(2)(e)) and in the manner of doing so, in line with developed principles of fairness and transparency.

In the case of another foreign catering worker detained in the wrong restaurant (R (on the application of Lim) v Secretary of State for the Home Department [2007] EWCA Civ 773, [2007] All ER (D) 402 (Jul)), the Court of Appeal confirmed the jurisdiction of the High Court to determine preconditions of liability to removal. Removal decisions could be both appealable and reviewable, calibrated by judicial discretion, but the High Court would entertain such jurisdiction only in ‘exceptional’ cases. The hardship in having to appeal from abroad did not make Mr Lim’s case exceptional and his complaint should be left to the appellate tribunal. However, while overturning grant of permission by the previous judge because the exceptionality threshold had not been met, the Court of Appeal made clear its discomfort with the Secretary of State’s ‘colossal overreaction to what, even if proved, was a venial breach of condition’ (para [27]) and, obiter, hoped the Secretary of State would not follow success in the case with resumption of removal.

How might this decision affect future administrative removal decisions?

Helen Mountfield QC, sitting as a deputy High Court judge, distinguished Lim. This claimant front-loaded the pre-decision stage of how the immigration officer exercised her discretion in choosing what sort of enforcement decision to take and how to do it. It was argued that discretion should be exercised:

o in line with safeguards developed in comparable illegal entry cases (also within IAA 1999, s 10) and public policy, and

o applying principles of fairness, giving reasons or at least the gist

If a discretion exists it must be exercised transparently and fairly. That was not something the tribunal could look into on an appeal against the decision actually made. It was suitable for the supervisory jurisdiction of the High Court.

What does this case tell us about the amount of material that needs to be before the court to show a fair decision has been made under IAA 1999, s 10(1)(a)?

It helped that Mr Thapa had submitted evidence which supported his case–it helped him considerably that the Secretary of State had not. Mr Thapa produced a good college attendance record and witness statements from former colleagues to collaborate that what he said was true and the immigration officer was mistaken. There was no direct evidence from the apprehending immigration officer. Mr Thapa was not interviewed under caution. There was no evidence that the reporting immigration officer:

o was aware she was exercising a discretion

o that she comprehended the sort of evidence she should be seeking and recording (such as an admission under caution, a statement by the employer, tax records, evidence of a pattern of working, and a statement by the officer witnessing the activity), as suggested in Chapter 50 of the enforcement instructions and guidance (EIG)

This is needed to evidence that offending behaviour took place and to substantiate that the case was of sufficient gravity to support a IAA 1999, s 10 removal decision. She gave no reasons, necessary both to ensure the court can see there has been lawful and rational exercise of discretion and to be fair to the prospective appellant.

How did the court approach the threshold argument?

The court took a widened view of how to cross the exceptionality threshold:

o on appeal the tribunal would look only at the decision made, not ‘the question of whether the decision to adopt this (rather than some other, or no) enforcement action was lawful and appropriate’

o the appeal might not be a suitable alternative because the detriment the appellant seeks to avoid will already have occurred and the tribunal cannot provide a suitable alternative safeguard after the event

o the case raised points of ‘considerable wider importance as to the fair and appropriate application of discretion’

It is questionable whether the first two points have really transcended the exceptionality test. They were acknowledged as harsh consequences in Lim, but they were not exceptional. The difference now is that public law has moved on. The High Court expects discretionary powers to be exercised in accordance with published policy, fairly and transparently. Both Mr Justice Walker, in granting permission, and Helen Mountfield QC in this hearing, gave weight to the wider public interest in this case. The exercise of discretion was not demonstrably rational and fair. Therefore, it was not just about what was fair to Mr Thapa–the fair and appropriate application of discretion has a wider public interest.

What should lawyers do next?

Given that removal often follows detention in short order, practitioners would do well to familiarise themselves with the safeguards and evidential requirements already envisaged in EIG Chapters 7 and 50, and the public law principles endorsed in this judgment. There is now a firm basis to demand sight of reasoned removal documentation, to make representations against automatic removal, and to challenge where the documentation does not evidence that discretion has been exercised properly or at all.

It has been argued that summary removals are not exceptional because they are normal. Lack of judicial scrutiny has permitted immigration officers not to notice they are exercising a discretion. That norm now has to change to build in fairness and transparency when:

o exercising a discretion

o gathering of relevant evidence

o making a balanced decision

o recording and informing the individual of the material information

o developing and observing published policy in relation to removal

The dynamic should change. To do it properly might give immigration officers pause before detaining and setting removal in short order. The writer has met a detainee still in his chef’s uniform in a short term holding centre, taken straight from kitchen to detention to airplane, in whites and chequered trousers. A procedural pause might at least give him time to get a change of clothes if not legal advice. The unfairness inherent in speedy removals and out of country appeals, the increased cost and reduced control for the appellant, has been consistently noted with regret, even in Lim, which failed to cross the exceptionality threshold. Better informed and tracked decision-making will not stop those in serious breach from being removed, but will improve the quality of decision making, the scope for legal advice and intervention, and the pressure for in country appeal rights where fairness demands.

It remains to be seen whether asserting these public law principles will in fact put any brake on the Home Office interest in removing people as quickly as possible and packing off their appeal rights with them. Before that happens, this case has given practitioners leverage to question and challenge the process–to require immigration officers at least to do it properly, or leave themselves open to challenge.

This article was first published on Lexis®PSL Immigration on 24 March 2014. Click here for a free 24h trial of Lexis®PSL