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Spirited away


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The harsh reality of immigration law enforcement is dramatically exposed by the facts of the case of R (on the application of Shaw & Anor) v Secretary of State for the Home Department [2013] EWHC 42 (Admin). In this case a Jamaican woman and her five year old son who had been resident in the UK since 2002 and since birth in 2005 respectively were detained at the airport without warning when they attended there as requested. They were then bundled onto the first flight to Jamaica.

Plane taking off
By Dave Keeshan

They had recently made a trip to Jamaica for a family funeral and on re-entering the UK had aroused the suspicion of an Immigration Officer. The woman had originally entered as a visitor, switched to being a student (back when that was allowed) and then extended her leave on several occasions, most recently in 2009. In interview she eventually admitted to working more hours than she was permitted. She and and her son were granted Temporary Admission and allowed to leave the airport. They were asked to return a few days later with evidence of progress with her studies.

This they did. The evidence was considered insufficient. Allowed only one phone call, which was made to the woman’s aunt, who was waiting for them outside the airport, they were placed on a flight within a short time and removed.

Imagine. After nine years of residence, with no warning, no opportunity to put your affairs in order, no chance to say goodbye or pack and with no preparation for your five year old child, you are suddenly spirited away and bundled onto a plane.

In a subsequent judicial review application the Secretary of State undertook to bring the woman and her child back to the UK and reconsider the decision to remove them. The outcome of that case can be seen from the Court of Appeal judgment in ZS (Jamaica) and Another v Secretary of State for the Home Department [2012] EWCA Civ 1639. The Claimant won her appeal in the First-tier Tribunal but that was overturned in the Upper Tribunal on an appeal by the Secretary of State and that decision was upheld by the Court of Appeal. In short, she eventually lost her claim.

On the discreet question of the treatment in being bundled onto a flight, the High Court held that it was an infringement of the common law right of access to justice:

The removal directions were, in my judgment, unlawful for the simple reason that the Defendant failed to give the Claimants any time at all to consider whether to seek legal assistance.

Damages were awarded for the de facto detention between the time that the Claimants were told they were to be removed and escorted to the plane and the time they was able to disembark from the plane. This amounted to false imprisonment because the Claimants were forced onto a plane against their will that they were unable to leave the plane until it disembarked. There was in truth no legal power to enforce the removal because the breach of the common law duty of access to justice rendered the removal directions unlawful. £2,000 was awarded to each Claimant.

Unlawful detention claims for unlawful removals should be considered as a potential remedy.

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Picture of Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


3 Responses

  1. This is obviously the tip of an iceberg: only this week I heard of a case (from someone in detention) of a man being sent back in spite of an injunction obtained by his lawyer. The Home Office had apparently told the man that the result of the application was that the flight was not cancelled. After the removal the solicitor asked the Home Office to forward to him the letter they said they had received (which was different to the result he had been sent) but they apparently said they had mislaid it.
    In a second case very recently the people being removed were told by a solicitor that he had obtained an injunction and the flight was cancelled – but it seems that this (non legal aid) solicitor was lying. A complaint is being made about the lawyer but meanwhile the family has gone back to Sri Lanka. I presume with the constraints being imposed by the Immigration bill and the legal aid cuts, we shall see more and more examples of such injustice.

  2. “The file note records that on arrival Ms Shaw stated that she was a full time student attending Birmingham Training College but was unable to name the full title of the course that she was studying and could not state the name of the qualification she was studying for. She said that she lived as a member of her cousin’s household and did not do any work or claim benefits…On further questioning, however, she admitted that she had been working two hours a day from Monday to Friday for a cleaning company (not two hours a week as she had previously claimed). She also admitted working for up to 32 hours a week for a catering firm.”

    In light of her obvious multiple deceptions, what approach would you suggest?

    1. Perhaps lawful service of a decision in accordance with our common law that would have enabled her to consider whether she had any other basis for remaining or failing that prepare herself and her 5 year old child for departure?