Home Office concede that Dutch man was wrongly excluded from UK in case of mistaken identity

In R(AH) v Secretary of State for the Home Department, the Home Office has conceded that it wrongly excluded a Dutch man from re-entering the UK after a family holiday because it mistook him for a different Dutch national who had been deported from the UK. After proceedings were issued and urgent directions made by the Upper Tribunal, the Home Office conceded that no deportation order was in force against AH and allowed him to rejoin his family in the UK.

The facts of the case are shocking. AH had lived in the UK since he was a child and progressed through school and university before starting work. With his first paycheck, he decided to take his mum on holiday to visit family members who lived abroad. AH had a pending EUSS application and was entitled to re-enter the UK.

At the end of the holiday, airline staff refused to allow him to board the place to return to the UK with the rest of his family. AH immediately contacted the Home Office and was told the following day that there was a deportation order in force again him. This was news to AH, who had never been in any sort of trouble whatsoever.

Thereafter, AH’s life became a Kafkaesque nightmare of trying to prove his identity. Initially, the Home Office told him that there was a mistake in their own record-keeping and implied that the problem would be resolved quickly.

However, the Home Office instead doubled down on its position and issued another deportation decision. AH, and then later his solicitors, provided copious evidence of his life in the UK including evidence indicating that he had remained in the UK after the Home Office claimed he had been deported. The Home Office maintained its position and stated that AH must have illegally re-entered the UK under the radar before using his passport to go on holiday with his mum.

Proceedings were issued and AH argued that the Home Office’s continuing refusal to allow AH to re-enter the UK was unlawful on the following grounds:

The Home Office had made a mistake of fact and that the Upper Tribunal must determine AH’s identity for itself as a precedent fact applying R(Lim) v Secretary of State for the Home Department [2007] EWCA Civ 773.
The Home Office had breached the Tameside duty by failing to carry out reasonable enquires to obtain the necessary information about AH’s identity. This was particularly important given the lack of disclosure provided to AH.
The Home Office had breached AH’s Article 8 ECHR rights both through the unlawful processing of AH’s data and through the effect of separating him from his family and life in the UK.
The Home Office had breached its data protection obligations under the Data Protection Act 2018 and UK GDPR.

After the claim was issued, the Upper Tribunal set directions for an expedited response from the Home Office. When that response came, the Home Office conceded that it had made an error and that AH was entitled to return to the UK. Within days, AH had touched down in the UK and was reunited with his family.

The claim has now been transferred to the Kings Bench Division to continue as a civil claim for damages for breach of Article 8 ECHR, data protection law and the Withdrawal Agreement.

AH is represented by Greg Ó Ceallaigh KC and Alex Schymyck, of Garden Court Chambers, who are instructed by James Packer, Sarah Mills and Annie Taylor at Duncan Lewis Solicitors.