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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: http://www.bailii.org/ew/cases/EWCA/Civ/2025/347.html Cite as: [2025] EWCA Civ 347 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Tim Smith (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ELISABETH LAING
and
LORD JUSTICE HOLGATE
____________________
THE KING (ON THE APPLICATION OF HAMMAD TAZEEM) |
Appellant/ Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent/Defendant |
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William Irwin (instructed by the Government Legal Department) for the Respondent
Hearing date: 13 March 2025
Post hearing written submissions 20 March 2025
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Crown Copyright ©
LORD JUSTICE MALES:
The facts
'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?"'
'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.'
The claim for judicial review
(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
The appeal
Law
'(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.'
'(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."
'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)
Submissions
Decision
'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."
'122. I do not consider that the Claimant's detention – if such a short period can properly be termed that – was unlawful. …'
Quantum
Disposal
LADY JUSTICE ELISABETH LAING:
LORD JUSTICE HOLGATE: