Procedural fairness does not require the Secretary of State to take steps to corroborate a person’s account before cancelling their leave for breach of conditions. So held the High Court in R (on the application of Pereira Campos) v Secretary of State for the Home Department [2022] EWHC 3299 (Admin).

The facts

Mr Pereira Campos entered the UK as a visitor in November 2021, telling immigration officers that he planned to visit friends for 10 days. In February 2022 an enforcement visit to a residential address uncovered that he was working in the UK.

He was interviewed in his bedroom, where immigration officers noticed a logbook naming him as the registered keeper of a motorcycle acquired eight days after his arrival. A motorbike helmet and boots were nearby. His mobile phone was examined and found to contain an app for Deliveroo workers and a photograph of him wearing the helmet and standing by the motorbike. He was observed moving his bed quilt to cover up some Deliveroo clothing.

In interview, Mr Pereira Campos denied working. He said that the motorbike was held in his name for his friend who had “problems with insurance”, that the Deliveroo app was used by another friend, and that the boots and clothing were not his. The officers didn’t believe him and detained him on suspicion of working without permission. They then cancelled his leave to enter the UK on the basis that he breached the conditions of his visa for working.

Mr Pereira Campos was served with a section 120 notice. His first response was simply to request voluntary return. But he later changed his mind and, through solicitors, judicially reviewed the decision to cancel his leave and his consequent detention.

The issues

The grounds of challenge changed over time. At first, Mr Pereira Campos argued procedural unfairness because he was denied an interpreter and wasn’t questioned before his leave was cancelled. This was no longer pursued after an interview transcript and witness statements from the officers were served.

By the time of the hearing, he argued that the cancellation was irrational and/or procedurally unfair because there were several ‘gaps’ in the evidence. The immigration officers should have taken steps to corroborate his account, for example by interviewing the friends he’d identified or contacting Deliveroo. He also asserted that the officers were “aggressive, rude, intimidating and threatening” and that there was no evidence he’d been cautioned.

The court’s findings

The judge rejected these arguments. Far from containing gaps, the evidence, together with Mr Pereira Campos’s answers and conduct, entitled the officers to conclude that he was working illegally. He had a fair opportunity to respond to the concerns raised, and there was no obligation to investigate what the judge described as an “implausible” account. He could also have provided witness statements or documentary evidence when served with the section 120 notice. He had chosen not to do so.

As for the allegations about the officers’ conduct, these were rejected. The claims of rudeness and intimidation were not set out in the grounds for judicial review, only appearing in a witness statement served after the claim was lodged. Instead, the Judge relied on the contemporaneous interview transcript, which contained no evidence of inappropriate questioning. Mr Pereira Campos had signed this at the time and had never disputed its accuracy.

There was no evidence either way about a caution, but none was required for an initial administrative interview such as this, and the Police and Criminal Evidence Act 1984 did not apply. On its own, the absence of a caution didn’t render the decision-making process unfair where Mr Pereira Campos was fully aware of the allegations against him and was able to respond to them.

Accordingly, the Judge found that the cancellation, and the detention based upon it, were lawful. The judicial review claim was dismissed.

Comment

Procedural fairness may require the Secretary of State to tell someone about her concerns before making an adverse immigration decision. As was explained in Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673, this enables the person to provide an innocent explanation that the Secretary of State will have to consider. The High Court has recently held that this obligation may extend to giving an interviewee internet access so they can produce evidence corroborating their answers. The decision in Mr Pereira Campos’s case makes clear that there are limits, however, and that the Secretary of State does not necessarily have to investigate an innocent explanation before rejecting it.

Mr Pereira Campos’s prospects of success were probably not helped by the changing nature of his case; the irrationality ground was only formally added at the substantive hearing, and some of the factual allegations made in his witness statement weren’t mentioned in his initial claim. It seems there were problems on both sides, however, with the Secretary of State disclosing evidence late and seeking to adduce more after the hearing. This was reflected in costs and serves as a useful reminder of the importance of procedural rigour (previously highlighted in R (on the application of Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841).