A would-be student stopped on arrival in the UK was wrongly denied a solicitor in interview, the High Court has found in R (on the application of Kumar) v Secretary of State for the Home Department [2023] EWHC 1741 (Admin).

The facts

Mr Kumar arrived at Manchester Airport with a student visa. The immigration officer who initially questioned him at the desk wasn’t satisfied from his answers that he was a genuine student. He was therefore detained for further investigation. He instructed a solicitor who asked to be present by phone when Mr Kumar was subsequently interviewed. The immigration officers refused this, saying that the solicitor could speak to him before and after the interview but couldn’t attend it. Mr Kumar was being assisted by an interpreter over the telephone and the officers claimed that it wasn’t possible for an additional person to join the call. There was, they said, no legal entitlement to accompanied by a solicitor.

When Mr Kumar was brought into the interview room, he repeatedly refused to participate without his solicitor present. As a result, his leave to enter was cancelled under paragraph 9.9.2 of the Immigration Rules. This states:

Any entry clearance or permission held by a person may be cancelled where the person fails without reasonable excuse to comply with a reasonable requirement to:

(a) attend an interview; or

(b) provide information; or

(c) provide biometrics; or

(d) undergo a medical examination; or

(e) provide a medical report.

Mr Kumar applied for judicial review of the cancellation. He argued that paragraph 9.9.2 did not apply because he had a reasonable excuse for failing to comply with the interview – namely, that he had wrongly been denied the presence of a solicitor. The decision-making process, he submitted, was procedurally unfair because his right of access to justice had not been honoured. Additionally, the immigration officers had breached Home Office policy, which said that lawyers generally should be allowed to attend interviews.

Access to justice

His Honour Judge Dight CBE, sitting in the High Court, agreed that the cancellation decision was unlawful.

The Home Office argued that Mr Kumar was not entitled to be accompanied by his solicitor in interview. It relied on three old (in immigration law terms) cases, one saying there was no right to an interpreter when interviewed at the airport and two saying there was no right to a lawyer. Judge Dight considered these cases of little use, describing them as ‘of their time’.

Instead, the judge relied on the Supreme Court’s much more recent summary of the legal principles concerning access to justice, as applied by the Court of Appeal in R (on the application of FB (Afghanistan) v Secretary of State for the Home Department [2020] EWCA Civ 1338. Essentially, it’s not enough that a person has a theoretical right to challenge a decision if they can’t exercise that right in practice. In some cases, this will require access to a solicitor if the person requests it.

Mr Kumar, Judge Dight pointed out, was detained and facing an interview that could lose him the right to enter the UK and study at university. He didn’t know the complex law involved and he had no right of appeal if denied entry to the UK. In these circumstances, access to justice required an opportunity to be assisted by a lawyer. Where he had not been told the immigration officer’s concerns in advance, the lawyer needed to be in the interview. The supposed logistical problems didn’t justify denying Mr Kumar this right, particularly since his solicitor had been permitted and able to join the interview of another client who was detained after arriving on the same flight as Mr Kumar.

The process leading to the decision, therefore, was ‘unfair and fundamentally flawed’.

The wrong starting point

Judge Dight also accepted Mr Kumar’s argument about the failure to adhere to policy. The policy document in question indicated that appropriately qualified legal representatives should generally be allowed to attend interviews. Although there was discretion to exclude a representative if ‘essential’ to do so, this would be a departure from the default position and reasons had to be given.

The immigration officers had taken the opposite approach in Mr Kumar’s case, the judge held. Instead of asking whether there was good reason to exclude his solicitor, they’d wrongly taken the starting point that he wasn’t entitled to have one present. This in turn tainted their approach to the issue of whether his refusal to be interviewed was reasonable.

Mr Kumar therefore won his judicial review claim. The decision to cancel his leave to enter was unlawful, and that made his detention afterwards unlawful too.

Comment

The Home Office will need to make a new decision on whether Mr Kumar should be admitted to the UK. Although his leave could still be cancelled, Judge Dight’s finding that he was wrongly denied a solicitor in interview means he probably won’t be refused under paragraph 9.9.2 again. The judgment illustrates the need to have regard to the wider circumstances, and the lawfulness of the Home Office’s conduct, when deciding whether someone has a ‘reasonable excuse’ for non-compliance.

Although Mr Kumar succeeded on the basis that the Home Office had breached its own policy, that wasn’t apparent when the claim was initially argued. The policy on interviews is unpublished and wasn’t disclosed until after the substantive hearing had already taken place. A second hearing had to be quickly arranged and the Judge ordered that the Home Office pay the costs of Mr Kumar’s lawyers’ attendance. The document was obviously relevant, he said, and it was ‘surprising, to say the least’ that it hadn’t been provided earlier given the duty of candour – the requirement that parties to a case ‘ensure that all relevant information and all material facts are put before the court’. No explanation was offered.

This isn’t the first time that the courts have criticised the Home Office’s approach to disclosure. Recent judgments show it giving incomplete information to its own lawyers and wrongly hiding the identity of the officials responsible for its decisions. The costs order in Mr Kumar’s case will hopefully remind it of its overriding duty to the court.