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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tazeem, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 347 (27 March 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/347.html Cite as: [2025] EWCA Civ 347

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Tim Smith (sitting as a Deputy High Court Judge)
[2023] EWHC 1828 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 March 2025

This judgment was handed down remotely at 10.30am on Thursday27 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

LORD JUSTICE MALES:

1. The issue on this appeal is whether the appellant was unlawfully detained at Heathrow airport as a result of his leave to enter being cancelled by immigration officers who concluded, unfairly and therefore unlawfully, that he had made false representations in order to obtain it.
2. Mr Tim Smith, sitting as a Deputy Judge of the High Court, decided that the appellant's detention was a lawful exercise of the power to detain pending the completion of an examination into an arriving passenger's circumstances. The appellant appeals from that decision.

The facts

3. I can take the facts from the judgment.
4. The appellant, a national of Pakistan, was born in December 2002. On 3^rd September 2022, aged 19, he was granted leave to enter the UK and remain for a course of study at De Montfort University in Leicester. The course was a three-year bachelor's degree in Business and Management preceded by a one-year foundation course.
5. Admission by the university to study the course was conditional upon the appellant demonstrating a sufficient command of English. The appellant's case is that he had demonstrated this by providing a results card for his intermediate examination by the AJ and K Board of Intermediate Education in Mirpur, and that prior to registering for the course he also took and passed a test for proficiency in English conducted by the Oxford International Education Group ("OIEG"). He had used the same tests in order to demonstrate his proficiency in English for the purpose of obtaining leave to enter the UK.
6. On 8^th September 2022 the appellant left Pakistan for the UK. He arrived at Heathrow airport on 9^th September in the early evening. At 20:16 hours he was interviewed by Ms Richards, one of the Heathrow Border Force desk officers. The interview concluded at about 21:30 hours. A note of the interview prepared by Ms Richards reads as follows:

'On arrival the passenger was asked where he had just come from, however despite asking him three times he did not appear to understand what I was asking until I rephrased the question to, "have you come from Pakistan?"'

7. A witness statement from Ms Richards goes on to record that she asked the appellant a question about his intended course of study which he answered in the same way as it was answered on his form. She then asked him a question about his previous course of study which, she says, he was unable to answer at all. In view of the appellant's apparently poor command of English, despite the fact that his reason for entry was to pursue a course of higher education study, he was referred for a further interview.
8. The appellant was then interviewed again at 23:43 hours on the same day by another of the Border Force officers, Mr Badal. The appellant requested an Urdu interpreter at the outset of the interview. Mr Badal's notes record that, when asked why he wanted an interpreter, the appellant answered, 'Because I cannot speak in English'. Mr Badal arranged for an Urdu interpreter to assist.
9. At the outset of the interview the appellant was asked through the interpreter whether he was 'fit and well to be interviewed'. He confirmed that he was. The appellant was then asked 25 questions about his proposed degree course and the OIEG test which he had taken to demonstrate his proficiency in English. Mr Badal has explained that the very limited answers given by the appellant, broadly to the effect that he knew very little about his proposed course and could not remember anything about the OIEG test, gave him cause for concern as to whether the appellant's level of proficiency in English was what he had represented it to be. The interview finished at or about 00:49 hours on 10^th September.
10. Mr Badal discussed his findings and his concerns with a more senior Border Force officer, Mr Brown. They concluded that the appellant should be served with notices cancelling his leave to enter and requiring him to return to Pakistan. The relevant notices were drafted by Mr Badal and reviewed by him with Mr Brown. The relevant decision was made at some time between 01:15 and 02:32 hours on the morning of 10^th September.
11. Mr Badal then accompanied the appellant to an interview room at 02:32 hours where he commenced a third interview. The purpose of this third interview was not to investigate further, but to present and explain to the appellant the decision to cancel his leave to enter and to send him back to Pakistan on a flight due to leave at 15:05 hours that day. Once again it was conducted through an interpreter at the appellant's request. The appellant again confirmed that he was fit and well to conduct the interview. In view of the decision to cancel the appellant's leave to enter, Mr Badal had generated two other documents in advance. One was a form by which the appellant would waive his right to an administrative review of that decision. The other was a separate document explaining the content and effect of the waiver form. These forms were explained to the appellant through the interpreter and the appellant signed them.
12. This third interview ended at about 03:15 on 10^th September. Mr Badal served the appellant with Form IS 82 advising that he had been refused entry to the UK. The notice, served pursuant to section 120 of the Nationality, Immigration and Asylum Act 2002, recorded the following:

'You have confirmed your intensions to study a Bachelor's degree in Business and Management, a full time course at your Higher Education Provider (HEP) Leicester De Montfort University. The university has issued you with a Confirmation of Acceptance for Studies (CAS) after being satisfied by your English language ability in four components. The method of assessment used was a Result Card Intermediate Annual Examination issued by AJ and K Board of Intermediate and Secondary Education Mirpur, dated 2021, and the Oxford International English test, which is considered equivalent to a CEFR B2. The University did not request any further evidence of your English language ability. However, on your arrival to the UK today you have been unable to demonstrate an ability to speak basic English, which has been made further evident by the need for you to request an Urdu interpreter for your further interview. In your visa application you stated that your preferred language to communicate in was English, however your request for an interpreter clearly demonstrates that this is not the case. Furthermore, during your interview in Urdu today, you failed to give a basic account of the questions posed to you in each of the four components of the Oxford International English test, the recent test which you presented as evidence to the Entry Clearance Officer of your English ability. You claim that the reason for not being able to remember details is due to the course being taken several months ago, however, when also taking into account that you have not even been able to relay the exact course title of your degree, serious concerns are raised about your ability to undertake such a course of study. In light of the above, it is evident that you have falsely represented yourself to the Entry Clearance in order to obtain your student visa. You clearly are unable to communicate in the English language, and I have doubts about the authenticity of the English tests.'

13. Removal directions were set for 15:05 hours on 10^th September 2022 and the appellant continued to be detained. However, within a few hours, the appellant instructed solicitors, SAJ Legal, who sent a letter before claim as a result of which the removal directions were cancelled. The appellant was notified of this cancellation at 13:38 hours on 10^th September and was released later that afternoon.

The claim for judicial review

14. On 12^th September 2022 judicial review proceedings were commenced. The grounds for seeking judicial review were later amended, but as they came before the judge there were four such grounds, as follows:

(1) Ground 1: in failing to give the appellant notice of the allegation/concern about the authenticity of the documentation for his English qualifications the SSHD had adopted an unfair procedure;

(2) Ground 2: the decision to cancel the appellant's leave to enter the UK was irrational and/or procedurally unfair;

(3) Ground 3: the SSHD's rejection of an application by the appellant for administrative review of the decision cancelling his leave to enter was irrational and/or procedurally unfair; and

(4) Ground 4: the appellant was detained unlawfully.

The judgment

15. The judge found that the basis on which the appellant's leave to enter had been cancelled was that there had been deception on the part of the appellant because the authenticity of the English language tests on which he had relied was doubtful. He found also that, despite the questions which the appellant had been asked about these tests, the Border Force officials' doubts about their authenticity had never been put clearly to the appellant, who therefore had not had an opportunity to give whatever explanation he may have been able to give. On this basis, applying Balajigari v SSHD [2019] EWCA Civ 673, [2019] 1 WLR 4647, the judge held that the decision to cancel the appellant's leave was procedurally unfair and therefore unlawful.
16. That decision, which was sufficient for the claim for judicial review of the decision to cancel the appellant's leave to succeed, has not been challenged on this appeal. There is no cross-appeal by the SSHD and we have heard no argument about it although, for my part, I would have thought that the questions asked by Mr Badal were at least arguably sufficient to warn the appellant that the authenticity of his certificates was in question. However, in the absence of a cross-appeal, we must proceed on the basis that the decision to cancel the appellant's leave was unlawful.
17. The judge went on to determine the second and third grounds of the claim, which he rejected. He held that in view of the appellant's poor grasp of English, as demonstrated in the first two interviews, the decision to cancel his leave was rational. As he put it, this was not 'a case involving fine margins'. Rather, the appellant 'appeared barely able to converse in English at all'. It would seem, therefore, that the Border Force officials' concerns about the authenticity of the appellant's certificates may well have been well founded.
18. The judge held also that the appellant did not come close to discharging the burden upon him of proving that the waiver of his right to an administrative review was the result of coercion or duress.
19. Finally, the judge held that the appellant's detention was lawful. He had been detained in accordance with paragraph 16 of Schedule 2 to the Immigration Act 1971 which contained a power to detain pending the completion of an examination into a passenger's circumstances, in particular whether grounds exist for refusing or cancelling leave to enter.

The appeal

20. On this appeal we are concerned only with the lawfulness of the appellant's detention between 20:16 hours on 9^th September and 13:38 hours on 10^th September 2022. That issue must be decided on the basis of the judge's conclusion, not challenged on appeal, that the decision to cancel the appellant's leave to enter was unlawful because of the procedural failure to put to him in terms the Border Force officials' suspicion that his test certificates were fraudulent.

Law

21. Paragraph 2 of Schedule 2, Part 1 to the Immigration Act 1971 enables an immigration officer to examine a person, such as the appellant, who arrives in the UK with leave to enter for the purpose of determining whether such leave should be curtailed.
22. Paragraph 16 of the same Schedule authorises the detention of a person who may be required to submit to such an examination:

'(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.

(1A) A person whose leave to enter has been suspended under paragraph 2A may be detained under the authority of an immigration officer pending—

(a) completion of his examination under that paragraph; and

(b) a decision on whether to cancel his leave to enter.'

23. The Act contains other powers of detention, including a power to detain a person who is liable to removal, but the exercise of this latter power is subject to the well-known Hardial Singh principles (R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704), which I can take as restated by Lord Justice Dyson in R (I) v SSHD [2002] EWCA Civ 888, [2003] INLR 196 at [46]:

'(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."

24. As explained by Lord Dyson in R (Lumba) v SSHD [2011] UKSC 12, [2012] 1 AC 245 at [65], once a claimant proves that he was directly and intentionally imprisoned by the defendant, the burden shifts to the defendant to show that there was lawful justification for the detention. If the defendant is unable to discharge this burden, it is not a defence that it could have detained the claimant lawfully if it did not in fact do so:

'62. … The introduction of a causation test in the tort of false imprisonment is contrary to principle both as a matter of the law of trespass to the person and as a matter of administrative law. Neither body of law recognises any defence of causation so as to render lawful what is in fact an unlawful authority to detain, by reference to how the executive could and would have acted if it had acted lawfully, as opposed to how it did in fact act. The causation test entails the surprising proposition that the detention of a person pursuant to a decision which is vitiated by a public law error is nevertheless to be regarded as having been lawfully authorised because a decision to detain could have been made which was not so vitiated. In my view, the law of false imprisonment does not permit history to be rewritten in this way.' (Lord Dyson's emphasis)

25. There is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law (Lumba at [66]). For example, if a decision to deport a person is unlawful, the exercise of the power to detain pending deportation is likewise unlawful (R (DN (Rwanda)) v SSHD [2020] UKSC 7, [2020] AC 698 at [17] and [19]). As Lord Kerr put it in DN (Rwanda) at [19], 'the lawfulness of the detention is always referable back to the legality of the decision to deport. If that is successfully challenged, the edifice on which the detention is founded crumbles'.

Submissions

26. For the appellant, Mr Jay Gajjar acknowledged that the Secretary of State had the power to examine the appellant for the purpose of deciding whether his leave to enter should be curtailed and to detain him for that purpose. But he submitted that, just as the Hardial Singh principles qualify the apparently unqualified statutory power to detain a person pending deportation, a similar qualification should be read into the power to detain pending examination, to the effect that if the decision made at the conclusion of the examination is unlawful, so too is the detention. On that basis, he submitted that the appellant's detention from 20:16 hours on 9^th September 2022, i.e. from the beginning of the examination, was tainted by the procedural unfairness which rendered the cancellation of his leave to enter unlawful.
27. Alternatively, Mr Gajjar submitted that, even if the detention was initially lawful, it became unlawful once the examination was concluded and an unlawful decision was made to cancel the appellant's leave to enter. From that time until 13:38 hours on 10^th September 2022 there was no lawful basis for the appellant's detention. (Mr Gajjar added that it might have been possible to say that the unlawful detention continued after 13:38 hours on 10^th September, but he was content to limit the appellant's claim until that time).
28. Mr William Irwin for the Secretary of State insisted that there was a single decision, made on the evening of 9^th September, to detain the appellant pending his examination, which was lawful when made and which was not rendered unlawful by the fact that the later decision to cancel the appellant's leave to enter proved to be unlawful. He accepted that, once the examination was concluded and a decision to cancel the appellant's leave was made, the statutory purpose of the detention came to an end, but submitted that this did not mean that the appellant's detention thereafter was unlawful. On the contrary, the Secretary of State was entitled to detain the appellant for a further period, described as a 'period of grace', in order to make arrangements for his release.

Decision

29. I have no doubt that the appellant's detention was lawful until the decision was made that his leave to enter should be cancelled. Until that time he was detained in accordance with paragraph 16 of Schedule 2 pending a decision on whether to cancel his leave, and there were clearly grounds for concern about the appellant's knowledge of English and the authenticity of his certificates.
30. I would reject Mr Gajjar's submission that the lawfulness of the appellant's detention during this initial period was somehow tainted from the beginning by the fact that the decision eventually made to cancel his leave to enter was unlawful. Detention which was lawful at the time because it was for the purpose of carrying out an examination did not become retrospectively unlawful because the wrong decision was made at the end of the examination. It is essential that Border Force officials needing to carry out an examination should be able to know from the outset whether they are entitled to detain the person to be examined. The lawfulness of the detention cannot depend on whether the decision made at the conclusion of the examination is lawful.
31. In my judgment Mr Gajjar's submission fails to distinguish between the examination, which was lawful, and the ultimate decision to cancel the appellant's leave, which was unlawful simply because the Border Force officials failed to ask an additional question at the end of the examination ('Your certificates are fake, aren't they, Mr Tazeem?') and, having failed to do so, made a decision which has been held to be procedurally unfair.
32. However, once the decision to cancel the appellant's leave to enter was made, at some time between 01:15 and 02:32 hours on the morning of 10^th September, the appellant was no longer being detained for the purpose of being examined. The examination had finished and a decision had been made. Continued detention thereafter cannot be justified as authorised by paragraph 16 of Schedule 2. The burden is on the Secretary of State to identify some other lawful justification for the appellant's continued detention.
33. As I have noted, Mr Irwin submitted that the Secretary of State was entitled to a reasonable period to put in place appropriate conditions for release. He relied on R (AC (Algeria)) v SSHD [2020] EWCA Civ 36, [2020] 1 WLR 2893. That case confirms that when a person held in immigration detention must be released as a result of applying the Hardial Singh principles, for example because he cannot be removed to his country of origin, the Secretary of State is entitled to a period of grace in order to put in place appropriate conditions for release, and that until that period has expired, continued detention will remain lawful. Lord Justice Irwin explained the principle in these terms:

'31. As this court emphasised in FM v SSHD [2011] EWCA Civ 807, the application of the Hardial Singh principles bearing on the "grace period" allows for practical matters, such as organising the conditions for release of a detainee. That is consistent with the principle that the test for the lawfulness of a period of detention is one of reasonableness. Pitchford LJ said exactly that in his judgment:

"60. I have already expressed my opinion that the test for the lawfulness of a period of detention is one of reasonableness. The obligation of the Secretary of State is to cease detention when it becomes clear that detention is no longer required to effect removal but, in my view, common sense demands that a short period of grace is required for the decision-making process to take place which may include a decision as to the management of the detainee on release. First, there is, I think, a distinction between cases in which it is clear that removal directions will not be re-set (e.g. upon grant of ILR) and those in which the decision whether to re-set removal directions depends upon the outcome of proceedings (as in the present case). The Secretary of State will in the latter cases be concerned to ensure that she is kept aware of the whereabouts of the released detainee. That may require administrative arrangements for appropriate accommodation to be made available. I do not think that the Secretary of State is bound to release without regard to a residual risk of absconding (see, for example, R (Wang) v SSHD [2009] EWHC 1578 (Admin)). Secondly, I do not consider, as Mr Husain argues, that the Secretary of State's assumption of responsibility for the welfare of these two children in detention can lightly be segregated from a responsibility to take reasonable steps to ensure that they are properly accommodated on release. There is no policy of the Secretary of State which requires case workers to turn detainees out of a detention centre without first ensuring that they can survive. On the contrary, it is the policy of the Secretary of State (EIG 55.6.3) that detention may be necessary "whilst alternative arrangements are made" for the detainee's care (provided, of course, that the purpose of detention was to effect removal). It is not difficult to envisage circumstances in which the Secretary of State could be said to be acting in dereliction of the duty undertaken by the act of detention if she took no action but to release the detained person immediately removal within a reasonable period became, as a matter of fact, not possible.

61. I note that in R (Ahmed) v SSHD [2008] EWHC 1533 (Admin), the claimant, while having been entitled to release from detention, remained in detention for a period of four days while arrangements were made to obtain accommodation for the claimant and her family. No claim was made in respect of that period of four days because it was accepted that the original detention was lawful and at the stage when the claimant was entitled to release those same enquiries would have been required."

34. It is clear from this passage that the 'period of grace' referred to is an aspect of the Hardial Singh principles. Those principles do not mean that a person must be released immediately as soon as, for example, it becomes clear that he cannot be deported within a reasonable time. Rather, as a matter of practicality, it may be necessary and will be lawful to continue detention for a short period so that suitable arrangements can be put in place.
35. Such a 'period of grace' is obviously sensible in the kind of case to which the Hardial Singh principles will often apply, such as a foreign national criminal who cannot be deported because his country of origin will not have him back or because deportation would put his life at immediate risk, but who may represent a risk to public safety. In such a case it will be necessary to deal with such matters as bail conditions and where the person concerned is to live. But there is no justification here for a submission that the Secretary of State is entitled to a period of grace whenever any period of lawful detention comes to an end.
36. There are two reasons why Mr Irwin's submission must be rejected in the present case. First, the appellant was not detained in order for appropriate conditions to be put in place. He was detained for the purpose of removing him on a flight to Pakistan later on 10^th September and was only released as a result of the intervention of his solicitors. Detention for that reason was unlawful, applying DN (Rwanda), because the decision to cancel his leave to enter and return him to Pakistan was unlawful. To say that he could have been detained for the purpose of putting in place conditions for his release would be contrary to the clear rejection by the Supreme Court in Lumba of any defence, when a person is in fact unlawfully detained, to the effect that he could have been lawfully detained.
37. Second, there was no need for any conditions to be put in place. The appellant had leave to enter and, because the decision to cancel that leave was unlawful, that decision must be treated as a nullity. He was not liable to be deported and there was therefore no question of bail, or of bail conditions, needing to be put in place. There was no suggestion that the appellant represented a risk to public safety. He was simply a student who had come to study a university course, albeit one which, if he could not speak English, he was likely to fail. All that needed to be done was to tell the appellant that he was free to go. That could be done, with the aid of an interpreter, in a few minutes.
38. In my judgment, therefore, the 'period of grace' cases on which Mr Irwin relied have no application in the circumstances of the present case.
39. In these circumstances I would hold that detention after 02:32 hours (at the latest) on 10^th September was unlawful. In view of Mr Gajjar's acceptance that the period of unlawful detention came to an end at 13:38 hours on the same day, that means that he was unlawfully detained for a period of between 11 and 12 hours.
40. A stray remark by the judge has led to some argument about whether such a short period of detention counts as detention at all. The judge said:

'122. I do not consider that the Claimant's detention – if such a short period can properly be termed that – was unlawful. …'

41. However, when refusing permission to appeal, the judge made clear that this was not intended to be part of his dispositive reasoning. Mr Irwin for the Secretary of State has rightly not suggested that detention for a period counted only in hours is not capable of qualifying as unlawful detention.

Quantum

42. The parties agreed that it would be sensible for us to assess the damages to which the appellant is entitled, rather than putting them to the expense and delay of remitting this issue for decision elsewhere. We received brief written submissions on this issue after the conclusion of the hearing.
43. The parties agreed with the guidance given in Thompson v Commissioner of Police for the Metropolis [1998] QB 498 to the effect that in a 'straightforward case of wrongful arrest and imprisonment', the starting point was likely to be about £500 for the first hour of loss of liberty and that a claimant wrongly detained for 24 hours should for that alone normally be entitled to an award of about £3,000. They agreed also that this figure needs to be adjusted for inflation to take account of the time which has passed since the decision in Thompson, and that the figures of £500 and £3,000 would now correspond to £1,263 for the first hour and £7,589 for 24 hours.
44. Mr Muhammad Zahab Jamali for the appellant submitted that detention is more traumatic for a person of good character who is unfamiliar with the 'clang of the prison gates', that account must be taken of the initial shock to the appellant of being detained, and that aggravated damages should be awarded because of the aggressive questioning of the appellant, including intimidating him into signing the waiver forms. All this had caused stress, anxiety and depression to the appellant. On the assumption that the detention became unlawful at or soon after 00:49 hours on 10^th September, as I have held it did, Mr Jamali submitted that there should be basic damages of £7,000, with additional aggravated damages of £5,000.
45. For the Secretary of State, Mr Irwin pointed out that the appellant did not experience the 'clang of the prison gates'. He was simply required to wait in what was effectively a waiting room at Heathrow airport, without being arrested or subject to any physical force. The initial shock of being detained would therefore have been less in his case than in other cases. In those circumstances the basic damages award should be no more than £1,500, and there should be no question of any aggravated damages. (For completeness I should note that Mr Irwin did not suggest that only nominal damages should be awarded (cf. Lumba at [95])).
46. The appellant is entitled to damages for his detention for a period of 11 to 12 hours. During that time he was not sent to prison or to a detention centre, but simply waited in a room at Heathrow airport. He was not at any point subjected to physical restraint. It is apparent that he was able to communicate with the outside world, because within a matter of hours he instructed solicitors who acted promptly to ensure his release. By comparison with other cases, the conditions of his detention cannot be viewed as harsh or oppressive. I would therefore reject the claim for aggravated damages. Taking account of the short period for which the appellant was detained, I would assess the damages at £4,500.

Disposal

47. I would therefore allow the appeal and would declare that the appellant was unlawfully detained for a period of between 11 and 12 hours on 10^th September 2022. I would assess the appellant's damages for that detention in the sum of £4,500.

LADY JUSTICE ELISABETH LAING:

48. I agree.

LORD JUSTICE HOLGATE:

49. I also agree.