Modi v United Kingdom Border Agency

On 15 July 2009 the appellant, Mr Modi, sought leave to enter the United Kingdom. Leave was refused the following day by an immigration officer. He appealed to the Asylum and Immigration Tribunal (“AIT”). On 19October 2009 Mr Modi issued proceedings against the respondent, UKBA, in the Queen’s Bench Division of the High Court seeking damages and declarations on the basis that the refusal was unlawful and in breach of section 6 of the Human Rights Act 1998. Reliance was placed upon article 8 and article 1 of the first protocol (“A1P1”) of the European Convention on Human Rights. That claim was struck out by Deputy Master Bard as an abuse of process and pursuant to CPR part 24 as having no real prospect of success. The abuse argument stemmed from the fact that Mr Modi had parallel proceedings in the AIT. UKBA’s application to strike out the proceedings was heard on 28 January 2010. The hearing of Mr Modi’s appeal to the AIT had taken place on 21 January 2010. The determination in that appeal was promulgated on 4 February 2010. Judgment was handed down by the Deputy Master on 25 March 2010. This is an appeal against the decision of the Deputy Master.

In order to understand the legal submissions in this appeal it is necessary to trace the underlying factual circumstances in a little detail and to explain the nature and progress of the two sets of proceedings to which I have referred.

Mr Modi was born in India on 31 May 1973. He studied internationally. He is President and Chief Operating Officer of a company called Great Eastern Energy Corporation Ltd (“the company”). It is a company incorporated in India which, as I understand it, was established by his father. It is listed on the alternative investment market of the London Stock Exchange. The market capitalisation of the company is about £550 million. I was told that Mr Modi is a substantial shareholder in the company. The company does a considerable amount of business in the United Kingdom and has investors in this country. Mr Modi is a protected investor under the Promotion and Protection of Investment Treaty agreed between the governments of the United Kingdom and India on 14 March 1994. Mr Modi has been in the habit of travelling to the United Kingdom on business for many years. On 17 October 2005 he was granted a multi-visit entry clearance valid until 2015. He regularly visited the United Kingdom in the months following the grant of that entry clearance.

Whilst in London in the spring of 2006 Mr Modi committed a serious sexual offence. On 9 August 2006 he pleaded guilty to sexual assault of a young lady who, along with two others, had accompanied him back to his hotel after an evening at Tramps nightclub. All had consumed a fair amount of alcohol. The girls crashed out in his room, two on his bed and one on a sofa. His victim was one of the girls lying on his bed. She was comatose. He changed into his pyjamas and lay down on the bed with the two girls. Mr Modi then undressed his victim and fondled her breasts and genitals no doubt, as the sentencing judge indicated, with a view to having intercourse. As Mr Modi accepted, the young lady in question was in no position to give consent. On 10 August 2006 His Honour Judge Roberts QC sentenced Mr Modi to a term of imprisonment of six months suspended for two years. The automatic notification requirements of section 82 to 88 of the Sexual Offences Act 2003 also came into play. The judge observed that in the ordinary course, the circumstances of the offence would lead to an immediate term of imprisonment of between 12 and 18 months. There were four mitigating features which led the Judge to take the unusual course which he did. First, Mr Modi was a man of exemplary character. Secondly, there was no suggestion that Mr Modi had deliberately plied the young women with drink with a view to taking advantage of them. The plan was that the girls would go back for a meal. There was no intention on the part of Mr Modi, or indeed any of the girls, that there should be sexual activity. The judge accepted that that the girls simply fell asleep and that Mr Modi himself got onto the bed with the intention of going to sleep. He was then unable to resist the temptation that his victim presented lying next to him. Thirdly, the judge accepted that Mr Modi was genuinely ashamed of what he had done and deeply remorseful. The judge noted that Mr Modi had initially lied in interview by suggesting that the girls were lying about his conduct. His guilty plea came late but, nonetheless, by that time he had accepted his responsibility for what had occurred. There was by then a deep level of remorse. Fourthly, the judge noted the profound impact of the offence upon Mr Modi's life. Since the date of the offence his life had been put on hold. He had been required to remain in the United Kingdom under strict bail conditions. His behaviour had brought disgrace upon him.

The judge went on to consider whether the dangerousness provisions then in force under the Criminal Justice Act 2003 were engaged to the extent of requiring him to impose a sentence of imprisonment for public protection. The judge was satisfied that there was not a significant risk to members of the public of serious harm occasioned by the commission by Mr Modi of further specified offences. That echoed the language of the statute. The judge went on to conclude that "it is quite clear that it is highly unlikely that Mr Modi will ever offend again … he has learned a bitter lesson from this event … he will not appear before the courts again."

The judge made no recommendation for deportation. No steps were taken by the Home Office or UKBA to cancel the multiple entry clearance. In the result, Mr Modi resumed his pattern of regular visits to the United Kingdom, having returned to India after he was convicted.

Between August 2006 and February 2008 Mr Modi made nine visits to the United Kingdom. On none of those occasions was he refused leave to enter nor troubled in any way by immigration officers. However, on 19 February 2008 Mr Modi was stopped and questioned by an immigration officer. He was detained pending further examination but chose to return to India the following day. The problem with which he was taxed by the immigration officer arose from his conviction in August 2006. The immigration officer believed that the victim was only 16 years old and that the offence was attempted rape because those details were entered on a database to which he had access. Neither of those facts was correct.

Mr Modi issued civil proceedings in the High Court arising from the way in which he was treated on that occasion. Those proceedings were started on 6 October 2008. They sought damages together with a declaration designed to prevent a recurrence. Those proceedings were compromised. A stay was agreed on terms set out in a schedule which in summary provided (a) that UKBA would amend its records to show the correct age of the victim, namely 21; (b) that UKBA acknowledged that the period of suspension of the sentence was over; (c) that UKBA apologised to Mr Modi for distress caused as a result of the records being inaccurate; (d) that UKBA agreed "that the claimant is free to travel to the UK in accordance with the usual VISA requirement and subject to the entry provisions of the Immigration Act 1971 and the immigration rules”; and (e) that UKBA would record the terms of the agreement on its Case Information Database [“CID”] within 21 days of the order.

That compromise was reflected in an order of the court of 15April 2009.

On 15 July 2009 Mr Modi travelled to the United Kingdom. On arrival at Heathrow Airport he was examined by an immigration officer but was not granted leave to enter. Instead he was granted temporary admission and the following day was refused leave to enter. The notice of refusal was in these terms:

“You were given a Visa which had effect as leave to enter the United Kingdom on 17^th October 2005 but I am satisfied that false representations were employed or material facts were not disclosed for the purpose of obtaining the leave, or there has been such change of circumstances in your case since leave was granted that it should be cancelled.

On 10^th August 2006 you were sentenced to six months imprisonment, suspended for two years, under the Sexual Offences Act 2003. In the light of your conduct as evidenced by this offence it seems right to cancel your leave on the ground that your exclusion from the United Kingdom is conductive to the public good. I therefore cancel your leave. If your leave was conferred by an entry clearance this will also have the effect of cancelling your entry clearance.”

The notice used formulaic language which suggested that there had been deception before, or a change of circumstances since, the entry clearance was granted. There has, in fact, never been any evidence of such deception. The notice went on to give removal directions for 31 July. It also set out Mr Modi’s appeal rights. He was entitled to appeal from within the United Kingdom pursuant to sections 82 and 92(3) of the Nationality, Immigration and Asylum Act 2002 [“the 2002 Act”]. On 17 July Mr Modi served his grounds of appeal to the AIT which had been drafted the day before. He had been given temporary admission on 15 July. The effect of his commencing the appeal was that he was entitled to remain in the United Kingdom until his appeal was heard. However, on 19 July 2009 Mr Modi left the United Kingdom for reasons entirely unconnected with the difficulty he had encountered three days before. He had urgent business to attend to in India.

By virtue of section 104(4) of the 2002 Act the appeal was treated as abandoned upon Mr Modi’s leaving the United Kingdom. That was unsatisfactory from Mr Modi’s point of view because he wished to achieve the restoration of his multiple entry clearance. He therefore started fresh appeal proceedings from abroad on 4 September. After some procedural skirmishing those proceedings were heard by Immigration Judge White on 21 January 2010.

Mr Modi provided a detailed witness statement dated 25 January 2010 in response to the application to strike out his claim. It sets out the background to his immigration problems, the conviction and the effect that they have had upon him. He explained that he is required to travel to the United Kingdom on behalf of the company for short business meetings and argued that his inability to obtain an entry clearance effectively prevented him from conducting business in the United Kingdom for and on behalf of the company. He said that caused him and the company loss and damage particularly because it impeded growth through raising capital: paragraph 32(i) and (j) of his statement. He went on:

“33)

Further more, I am advised that the decision of 16 July 2009 is a breach of my rights under Article 8 and Article 1 of the First Protocol to the European Convention Human Rights (“ECHR”). This is because my business interests in the United Kingdom constitute possessions for the purposes of Article 1 of Protocol 1 o the ECHR. My ability to conduct business affairs in the United Kingdom are an element of my private life protected by Article 8 of the ECHR. My inability to conduct business in the United Kingdom equally impacts upon United Kingdom investors in GEEC Ltd. My reputation is equally protected by the right to private life. I am also advised that UKBA’s decision to refuse me leave to enter and cancel my entry clearance amounts to a serious interference with my rights under Article 8 ECHR and Article 1 Protocol 1 ECHR. …

35)

The arbitrary decision of UKBA and its actions has caused loss and damage to me and the business. The market capitalisation of GEEC Ltd., is approximately £550 million. GEEC Ltd has attracted a large sum of investment from the United Kingdom. About 40% of GEEC Ltd securities are held by institutions trading from and in the United Kingdom. Being the President and COO of GEEC Ltd., I play a very vital and active role in GEEC Ltd. and therefore am required to travel frequently to the United Kingdom for meetings with officials from the LSE, Large Financial Institutional Investors (Standard Life, Scottish Widows, AEGON Fidelity, Credit Suisse, etc.) Banks (UBS, RBC, etc.), Law Firms, other companies hired for maintaining public relations, carrying out day to day work, etc. This function is a critical part of GEEC Ltd. management requirements and can only be carried out by me. My inability to travel to the United Kingdom for any prolonged period of time is highly detrimental to GEEC Ltd. and its trading activities. It may entirely stall its plan to raise further funds from the London market which would also adversely affect contribution from GEEC Ltd. in terms of revenue to the United Kingdom economy and to the job sector. If I am unable to travel and conduct business in the United Kingdom on behalf of GEEC Ltd, it may have to consider alternative options for raising capital that could mean moving away from the United Kingdom to other financial markets around the world.”

Mr Modi added that he had an important presentation to make to investors in London on 10 February 2010. He suggested that his reputation had been damaged by the refusal of leave to enter (over and above any damage done by his committing the serious sexual offence). He said that he had spent over £45,000 to secure his entry clearance, that is to overturn the decision of the immigration office by appealing to the AIT and by commencing these proceedings. He added that he also wished to recover losses sustained by the company.

Detailed grounds of appeal were served. They set out the background and contended that the immigration officer should not have refused leave to enter and should not have cancelled the entry clearance. There was no mention of the ECHR. The appeal was concerned to establish that the immigration officer should have exercised his discretion differently. At the hearing of the appeal, Mr Modi was represented by Mr Manjit Gill QC, a leading practitioner in the field of immigration law. The appeal was successful.

The Immigration Judge accepted that there had been a change of circumstances since the entry clearance had been granted, namely the conviction for sexual assault. In those circumstances a discretion arose under the rules whether to refuse leave and cancel the entry clearance. The immigration judge decided that, in the light of all the circumstances surrounding the conviction and immigration history, the immigration officer should have exercised his discretion differently and granted Mr Modi leave to enter. He disagreed that the public interest required Mr Modi to be refused leave to enter in consequence of his conviction. It followed that the entry clearance should not have been cancelled. The decision was in the following terms:

“32.

I allow the appeal on immigration grounds.

33.

I dismissed the appeal on human rights grounds.

34.

I direct that the appellant's 10 year entry clearance be reinstated. ”

Despite the grounds of appeal being silent on the matter, in the course of the hearing Mr Gill had raised an argument under article 8 ECHR. That is why the decision contains a reference to an appeal on human rights grounds. There was no suggestion before the immigration judge of an argument based upon A1P1 at the convention. The article 8 claim was dealt with in one short paragraph. The immigration judge was not satisfied that the cancelling of an entry clearance granted to a business visitor amounted to an interference with the fundamental human rights which article 8 is concerned to protect. He considered that the extent of any difficulty caused by the cancellation of the entry clearance would be to require Mr Modi to conduct his business differently. He concluded that there was no interference but even if there were, it would not have such severity to engage article 8.

As a result of the successful appeal and the direction which formed part of the decision, the entry clearance was reinstated. Mr Modi travelled to the United Kingdom in February 2010 without difficulty. The evidence before the Court does not give further details of the extent of his visits in the five months since February 2010, save that an e-mail exchange between his solicitors and the Treasury Solicitor shows that he planned to come on 13 March. The inference I draw from Mr Modi’s evidence of frequent short visits, and that e-mail exchange, is that he has been to and fro in the intervening period. As a result of the decision of the immigration judge, the entry on the CID was changed. Following that e-mail exchange, from 11 March 2010 the CID entry was amended and is now in the following terms:

“Mr Modi's appeal against refusal of leave to enter and cancellation of his visitor entry clearance in July 2009, which was based on his conviction for a sexual offence in 2006, was allowed and the Home Office did not seek to challenge the decision.

If a decision is taken to examine Mr Modi further, then he should not be extensively examined on arrival in relation to his conviction in 2006 nor should he be refused entry for reason of that conviction alone as that matter has, for the purposes of his examination under the Immigration Acts and in relation to his eligibility for entry, been determined in his favour by the Asylum and Immigration Tribunal.

Mr Modi will present himself in future with an entry clearance issued since the decision of the Asylum and Immigration Tribunal. The British High Commission in Delhi was fully aware of the facts of the case prior to issue of the current entry clearance.”

The reference to his not being refused entry on the basis of the conviction alone was added to the CID records at the suggestion of Mr Modi's solicitors. This version of the entry, together with an earlier one on which the solicitors commented, was produced in the course of the hearing by Mr Clayton QC who appears for UKBA. Mr Lewis QC, who appears for Mr Modi, produced an e-mail from the Treasury Solicitor which emphasised that any decision on leave to enter was for the immigration officer concerned taking account of all matters including the AIT decision. Mr Lewis was concerned that the observations in this e-mail, albeit not available to any immigration officer examining Mr Modi, represented a watering down of the unequivocal statement in the CID that the conviction alone should not result in a refusal of leave to enter or represented an indication that UKBA might seek to circumvent the decision of the Immigration Judge. The CID entry appears to me to be unequivocal. It could not be clearer.

The final form of the entry and its predecessor were not available at the hearing before the Deputy Master. They came into being long after the hearing, albeit before judgment was handed down. UKBA could have sought to rely upon the entry in post hearing submissions. Mr Lewis did not object to this fresh evidence being adduced, so long as he could adduce the e-mail to which I have referred, although he did with justification complain that UKBA should have produced it earlier than on the day of the hearing of the appeal.

These proceedings were issued on 19 October 2009. The brief details of the claim were:

“ … for loss and damages and a declaration that the decision to refuse leave to enter and to cancel any existing leave and entry clearance was unlawful and therefore should be reversed and a declaration that the claimant cannot lawfully be refused entry to the UK solely on the basis of his conviction on 9 August 2006 for sexual assault, with interest and costs. ”

The value of the claim was expressed to be less than £50,000.

These were ordinary civil proceedings. The particulars of claim recited the factual background fully and then came to the substance of the claim in paragraphs 27 to 29. Paragraph 27 of the particulars of claim referred back to a number of the factual matters already set out and averred that the decision to refuse Mr Modi leave to enter and to cancel his entry clearance was unlawful for three distinct reasons. First, he had a legitimate expectation that he would be granted leave to enter. Secondly, that refusing him leave to enter amounted to a violation of the Treaty between the United Kingdom and the government of India to which reference has already been made. Thirdly that the decision was irrational. The Human Rights Act claim is set out in paragraph 28:

“Further or alternatively, the decision of 16 July 2009 is in breach of the claimant's rights under article 8 and article 1 of the first protocol of the European Convention on Human Rights (“ECHR").

(i)

The claimant's business interests in the UK constitute possessions for the purposes of article 1 of protocol 1 to the ECHR.

(ii)

The claimant's ability to conduct his business affairs in the UK are an element of his private life protected by article 8 of the ECHR. The claimant's inability to conduct business in the UK equally impacts upon UK investors in GEEC Ltd. The claimant's reputation is equally protected by the right to private life.

(iii)

The defendant's decision to refuse the claimant leave to enter and cancel his entry clearance amounts to a serious interference with the claimant's rights under article 8 ECHR and article 1 protocol 1 ECHR.

(iv)

The defendants decision to refuse the claimant leave to enter and cancel his entry clearance was not in accordance with the law and amounts to a disproportionate interference with the claimant's rights under article 8 and article 1 of protocol 1 for the reasons set out in paragraph 27 above. ”

The passage in paragraph 27 is reflects the content of the statement quoted in paragraph [12] above:

“The claimant’s inability to obtain entry clearance … effectively [prevents] the claimant from conducting business in the United Kingdom for and on behalf of GEEC Ltd, causing the claimant loss and damage. The claimant’s business has also suffered further loss in terms of loss of future business and growth through further funding and/or capital raising.”

The particulars of loss identified four heads of claim. First, damages for loss of reputation. Secondly, loss and expense incurred in seeking entry clearance. Thirdly, loss of business and fourthly other unspecified losses. Two declarations were sought:

“(i)

a declaration that the decision to refuse leave to enter and to cancel any existing leave and entry clearance was unlawful and should be reversed.

(ii)

a declaration that the claimant cannot lawfully be refused leave to enter the UK solely on the basis of his conviction on 9 August 2006 for sexual assault. ”

The defence took a general point that the claim was one in public law and so should not have been started by part 7 proceedings. Instead (if arguable at all) they should have been commenced by way of judicial review. It denied the public law claims and averred that the proceedings were an abuse in the light of the parallel AIT proceedings. UKBA issued an application seeking an order that the claim be struck out, or alternatively that there be summary judgement for the defendants. That application was issued on 30 November 2009.

Much, indeed most, of the reserved judgment of the Deputy Master deals with matters which are no longer live in this appeal. Mr Modi does not seek to suggest that his public law claims founded in legitimate expectation, breach of the Treaty, or irrationality have any merit. He does not seek to revive them in this appeal. In consequence, it has been unnecessary for counsel to rehearse most of the arguments which evidently occupied much of the time before the Deputy Master. Similarly, he no longer pursues the first declaration set out in the particulars of claim because the decision of the Immigration Judge has, on any view, dealt with that issue.

Mr Lewis submits that the Deputy Master was wrong to strike out the Human Rights Act claim and the claim for the second declaration.

The Deputy Master dealt with the Human Rights act claim in three short paragraphs in his judgment. That is no criticism of the Deputy Master but reflects the reality of many appeals that what may have appeared far from central to the arguments at first instance dominates the appeal that follows. He noted that the claim was advanced under both article 8 and A1P1. He recorded a concession made on behalf of UKBA, which was repeated in this appeal, that "it is arguable that the claimant's economic interests in entering the UK are possessions for the purposes of article 1 of the first protocol". Having set out the terms of article 8 (2) and A1P1 the Deputy Master continued:

“37.

I read these exceptions to the two articles as permitting the state, in accordance with its properly enacted legal code and subject to principles of proportionality to a legitimate aim, to interfere with the rights conferred on the various grounds there set out. Plainly, these are circumstances in which those exceptions are highly likely to apply. Furthermore, despite the defendant’s limited concession, I do not see that the requirement for the claimant to conduct his business affairs through intermediaries or by remote communications (e.g. video conferencing or computer link), rather than entering the UK, interferes with the fundamental Human Rights which article 8 is concerned to protect - as the immigration judge pointed out; nor does it engages his privacy or his family life. ”

This reasoning in this paragraph is condensed. It is not altogether clear whether the Deputy Master was accepting that UKBA was called upon to justify as proportionate the immigration officer’s decision, whether there was no interference or such limited interference as not to call for justification. Be that as it may, the Deputy Master concluded that the Human Rights Act claim stood no real prospect of success applying the well known test for the purposes of CPR part 24. He also decided that the matter should have been brought in public law proceedings and so was an abuse of process and further that the principle in Henderson v Henderson (1843) 3 Hare 100 operated to defeat the claim because Mr Modi had raised the article 8 argument before the AIT (and lost) and could have raised his other Convention arguments in that forum but did not.

Mr Lewis drew a distinction between the claim for damages, on the one hand, and a declaration on the other. In respect of the former, Mr Modi seeks a finding in a civil court that the decision of the immigration officer of 16 July 2009 amounted to an unjustifiable interference with his rights under Article 8 and A1P1. That interference persisted until he returned to the United Kingdom in February 2010 following the AIT decision. The claim for damages forms part of the just satisfaction for which Mr Modi would contend in the event that the violation of one or other of these articles is established. In respect of the declaration, Mr Lewis submits that it is justified because of a risk that the UKBA would again violate those rights on account of the conviction alone. The risk arises because of the past conduct.

Mr Lewis’ argument contains the following propositions:

Mr Clayton makes a number of broad submissions:

It is convenient to consider first whether the claim has any real prospect of success.

It is perhaps a measure of the familiarity of the approach to summary judgment under CPR part 24.2 that neither counsel referred to it in terms nor to the principles identified in authorities in which it has been considered. They are collected together in the notes at CPR 24.2.3. Judgment for a defendant on the whole claim (or individual parts) cannot be given unless he establishes that the claim (or the part in question) has no real prospect of success. The inclusion of the word ‘real’ shows that the claim must be more than merely arguable. The criterion is the absence of reality.

The Article 8 claim is founded on the contention that the immigration officer’s decision interfered with Mr Modi’s private life in a very limited sense. It interfered with his ability to meet people face to face in the United Kingdom in the context of his doing business for the company of which he is President and Chief Operating Officer. No other context is discernable in the material before the Court nor was referred to by Mr Lewis. The extent of that interference is not fully particularised. However, the period during which it might have occurred can be stated with precision. Mr Modi left London in July 2009 for reasons unconnected with the refusal, having been granted temporary admission. For the few days that he was in the United Kingdom, Mr Modi was free to pursue his business interests unimpeded. Since February 2010 he has similarly been unimpeded in his access to the United Kingdom. There is no suggestion that UKBA has interfered with his Convention rights since the decision of the AIT. So the contention is that as a result of his having to forego visits to the United Kingdom between July 2009 and February 2010, each of which would have lasted a few days, and during which he would have conducted business on behalf of his company with, in particular, institutional investors and lenders, the Article 8 rights of Mr Modi have been interfered with. Although there is nothing in Mr Modi’s statement made in these proceedings which says in terms that he would have visited the United Kingdom during that period, Mr Lewis assured me that was so and I accept that it is implicit in the case being advanced.

At first blush it might seem ambitious that a provision in the Convention concerned with the right to respect for family and private life, and for one’s home and correspondence, could be brought to bear in a case which concerns interference in an individual’s ability to do business on behalf of his employer in the way described in Mr Modi’s statement. In R (Countryside Alliance) v Attorney General [2008] 1 AC 719 Lord Bingham of Cornhill described the content of the right under article 8 as elusive. He went on to identify its purpose:

“the purpose of the article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose. ” [10]

That echoes the language repeatedly used in the Strasbourg Court. Lord Hope of Craighead observed, by reference to a judgment of the Lord Justice Clerk in Adams v Scottish Ministers 2004 SC, "it is fallacious to argue that, because a certain activity establishes and develops relationships with others, it is on that account within the scope of private life." [55] He had earlier noted that in Giacomelli v Italy 45 EHRR 871, paragraph 76, the Strasbourg court had said that private and family life will usually develop in the home and that the individual has a right to quiet enjoyment of that area. He went on to explain that the Countryside Alliance case is "about the claimants’ rights to establish and develop relationships with other human beings and the outside world" which is a right protected only "to a certain degree". In support of that he cited Niemeitz v Germany 16 EHRR 97 at paragraph 29. Lord Rodger of Earlsferry also referred to this case in support of this proposition:

“[I]t soon became clear that article 8 was not concerned merely to protect relationships in a narrow domestic field ... so article 8 (1) had been violated by a search of the office where the applicant pursued his profession as a lawyer, since "it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world". ” [93]

The parts of Niemeitz referred to by Lord Hope and Lord Rodger are precisely those upon which Mr Lewis relies. The facts of the case were relatively straightforward. The German authorities were anxious to identify an individual who was the subject of criminal investigation by the state but who was known to them only by a pseudonym. The applicant, a lawyer, was believed to have information in his offices which might reveal the identity of the person concerned. A warrant was issued which authorised the search of the professional premises he occupied with other lawyers. The office was searched and the content of filing cabinets examined. The applicant complained that the search of his office violated his right to respect for his home and correspondence as laid down by article 8 of the Convention. The Commission found that having regard to the particular features of a lawyer's professional activities in his law office the search of the office amounted to an interference with his right to respect of his private life and home. The Commission considered that it was not possible to distinguish professional and private activity. It was particularly influenced by the duty of confidentiality imposed upon lawyers in their dealings with clients. The German government had argued that a search of professional premises had nothing to do with article 8 which was concerned only with the home and private life developed in the private sphere. Like the Commission, the Strasbourg Court rejected that argument.

The core of its reasoning is found in paragraphs 27 and following of the judgement.

“A.

Was there an "interference"?

Whilst this case is clear authority for the proposition that activities in the business or professional sphere are not excluded from the protection afforded by article 8, it is not authority for the converse proposition that business or professional activities are necessarily protected by article 8. Whilst expressing its view at a high level of abstraction, it is in my judgment clear that the Strasbourg Court was not suggesting that all business relationships and contacts fall within the sphere of private life of the purposes of article 8. It spoke in paragraph 29 of rejecting the proposition that activities outside the inner circle should be excluded "entirely" from the scope of private life. Respect for private life was also concerned with developing relationships. It recognised that work provides the opportunity for the development of important personal relationships particularly in the context of the professions. That, perhaps, is why the distinction between the professional and private can sometimes be quite difficult to draw. Counsel’s researches have found no case decided in Strasbourg in which the Court has recognised the application of article 8 in a context which concerns what might be described as purely business connections of the type in issue in this case.

In Countryside Alliance Lord Bingham discussed the case of Sidibras v Lithuania 42 EHRR 104. He described it as an extreme case on its facts. It concerned a law which excluded former KGB officers from employment in a large number of both public and private occupations. It effectively deprived the applicants of the ability to work. It caused constant embarrassment and blighted the applicants’ ability to function as social beings. He noted that the Strasbourg court was content to find for the applicant's on the basis of a breach of article 14 in the ambit of article 8 without determining that there was a breach of article 8 in itself. Lord Bingham’s discussion of this case arose in the context of a particular argument advanced in support of the claim under article 8 with which he was dealing, namely that the hunting ban had the effect of depriving a number of claimants of their livelihood and home. The interference with the claimants’ livelihood would impact on relationships. In respect of that argument (and indeed the others advanced which it is unnecessary to consider) Lord Bingham said:

“I judge the HR claimants complaints in this case to be far removed from the values which article 8 exists to protect.”

In my view the same can be said with more force in respect of the suggested impact on Mr Modi’s article 8 rights. His interest during the period with which this claim is concerned was to travel to the United Kingdom for short periods to do business for the company. The development of personal relationships would be entirely incidental, if it happened at all. Furthermore, Mr Modi had chosen to leave the United Kingdom when he could have stayed for the short time it would have taken to determine his in-country appeal. Looking at the circumstances of the activities he planned in that period with the most generous eye to Article 8, there is no real prospect of his showing that there was any interference with such rights.

In case I am wrong in that conclusion, I consider the question of justification and proportionality. It is important to identify carefully the impact of the decision of the immigration officer of 16 July 2009. It was not to exclude Mr Modi from the United Kingdom for all time. Its impact was to refuse leave to enter and cancel his entry clearance subject to any later decision of the AIT, and in the meantime to grant him temporary admission. Mr Modi had available to him a right of appeal which encompassed the possibility of the Immigration Judge substituting his own discretion for that earlier exercised by the immigration officer. The appeal enabled him to raise any Convention arguments he chose. The scheme of immigration decision making envisages this two stage process in the event that an individual is disappointed by the decision at the first stage. Any interference with Convention rights, if they could be established, would be for a short period whilst the decision making process determined the outcome.

Mr Lewis submits that there could never have been any justification for refusing Mr Modi leave to enter (or to cancel his entry clearance) on the basis of his conviction because the risk of re-offending was determined by the sentencing judge to be low. In the light of the conclusion of the Immigration Judge it is now accepted by UKBA that refusal of leave to enter on this basis alone would be wrong. However, I do not consider the actions of the immigration officer to be even arguably disproportionate in this case. He took the decision required of him by the scheme of the legislation and rules. It was a discretionary decision under the rules with the founding premise being a conviction for a serious sexual offence. Whether right or wrong, his decision was capable of relatively rapid review by the AIT with the prospect of the decision being reversed. That review process enables an appellant to place before the AIT all matters considered by the immigration officer and additional material which was not considered by him. As Mr Clayton put it, the system secured Mr Modi’s right to enter the United Kingdom notwithstanding the decision of the immigration officer.

Many immigration appeals raising Convention issues proceed upon the basis that removal from the United Kingdom would violate a Convention right. Others concern applications to come to the United Kingdom which directly engage Convention rights. Those seeking to enter as spouses or family members of a person settled in the United Kingdom spring to mind. In such cases it would be almost impossible, save on exceptional facts, to argue that a violation of Article 8 would flow from the continuing separation of the family members concerned during the decision making process, including the period required for an appeal. Any interference during that period would be proportionate. Similarly, it is difficult to imagine that someone intending to enter the United Kingdom for a very short period, or series of short periods, could successfully argue a violation of Article 8 resulting from such interference as flows from the decision making process itself. The facts would need to be very striking indeed to get such an argument off the ground.

In this case, there is an additional factor. Mr Modi had an in-country right of appeal which, to begin with, he exercised. He could have stayed in the United Kingdom until the appeal was determined. The system in which the immigration officer was operating ensured that there would be no impact whatsoever on Mr Modi’s ability to operate in the United Kingdom if he chose to remain here. He chose to leave and then pursued an appeal from abroad. The result of there being two appeals led to delay but that could not, in my view, affect the proportionality of the decision taken by the immigration officer.

For similar reasons, in my judgment there is no real prospect of Mr Modi succeeding in a claim under A1P1. If any interference with Article 8 was proportionate, so too would any interference with rights protected under A1P1 be proportionate. I have earlier noted that UKBA is prepared to accept a theoretical interference with Mr Modi’s A1P1 rights on the basis of some interference with the claimant's ‘economic interests’. That appears to proceed from the bare assertion contained in Mr Modi’s pleading and witness statement that he personally lost money as a result of the decision. In the course of argument it became doubtful whether the concession was correct. The fact that he has expended money on professional assistance in overturning the decision of the immigration officer has nothing to do with A1P1. Mr Clayton submits that, at best, any claim can only be at the margins of engagement of A1P1 and that, in truth it adds nothing to the Article 8 claim. It is derivative of the ability to do business for the company. Mr Lewis suggested that the A1P1 rights of Mr Modi were indeed derivative of those of the company which employed him, because he is a large shareholder. Thus any impediment to the company’s ability to secure business and funding would impact upon Mr Modi through reduced dividends or a lower share price than would otherwise be the case. In the light of the Strasbourg Court’s jurisprudence I consider that approach to be doubtful (see for example Agrotexim & others v Greece (1995) EHRR 250). Be that as it may, I proceed on the basis that UKBA accepts that the decision of the immigration officer may theoretically have interfered with Mr Modi’s A1P1 rights but I also accept Mr Clayton’s submission that any interference could only be at the margins.

Nonetheless, that concession does not assist Mr Modi unless he has real prospect of showing that the decision taking by the immigration officer did not have ‘a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’ That is the language of the Strasbourg Court in James v United Kingdom (1986) 8 EHRR 123 at p 145, paragraph 50. In the context of the decision making process of which the immigration officer’s initial decision formed only part, for the reasons discussed when considering Article 8, it is not arguable that the decision was disproportionate.

Mr Modi sought damages for breaches of Article 8 and A1P1. In my judgment. Neither claim has a real prospect of success. In coming to that conclusion I do not accept Mr Clayton’s argument that because the possibility of substantial damages being awarded is remote, for that reason the claim should not be allowed to proceed. It is correct that substantial awards of damages under the Human Rights Act have not hitherto been made, just as the Strasbourg Court’s award of monetary compensation in just satisfaction under article 41 ECHR is usually modest. That is no reason to prevent a claim from proceeding if otherwise there are real prospects of success, particularly in an environment in which a finding of a violation of the Convention will often be regarded in itself as sufficient just satisfaction. Furthermore I do not accept Mr Clayton’s argument that the finding of the AIT secured just satisfaction for any breach of a Convention right. That seems to me to be a difficult argument to sustain in the face of a positive finding by the AIT that there was nothing in the Article 8 claim.

As I have noted, a declaration is sought by Mr Modi that he

“cannot lawfully be refused leave to enter the UK solely on the basis of his conviction on 9 August 2006 for sexual assault”

Mr Lewis suggested that the declaration, rather than technical recognition of breaches of Article 8 or A1P1 with damages, was at the heart of the claim. That is apparently because Mr Modi fears that UKBA may refuse leave to enter or cancel the multiple entry clearance despite his success before the AIT and the record in the CID which is set out in full in paragraph 16 above.

In my judgment there is no basis for that fear. The determination of the Immigration Judge stands as a clear statement in support of the proposition that it would be a wrongful exercise of discretion to refuse entry on the basis of the conviction alone. The entry in the CID (which would be available to an immigration officer conducting a detailing examination) records the effect of the AIT decision and states in terms that entry should not be refused solely on that basis.

I consider this aspect of the claim to be entirely academic. Mr Modi succeeded in his appeal before the AIT. UKBA has accepted the decision of the AIT (as it was bound to do in the absence of seeking to overturn it) and taken positive steps to ensure that its effect has been disseminated so that it will be respected by immigration officers. The history of events since the AIT issued its determination is that Mr Modi has entered the United Kingdom without any problem. If he has any continuing concerns, he will no doubt carry a copy of the determination with him together with a copy of the entry in the CID.

It would be ‘unlawful’ for an immigration officer seized of the entry in the CID to refuse leave to enter on the basis of the criminal conviction alone. It would be Wednesbury unreasonable to do so. It would not necessarily entail a breach of the Convention. A notional breach of the Convention would depend upon the reason for the visit.

Declaratory relief of the sort Mr Modi seeks is discretionary. This part of the claim would, ordinarily, be brought by judicial review. No procedural point is taken by UKBA. Nonetheless, it is extremely difficult to imagine on the basis of the history of this case that that the High Court would grant the declaration sought. If this claim had been brought by way of judicial review I have no doubt that permission to apply would be have been refused. For the purposes of CPR part 24.2 this aspect of the claim has no real prospect of success.

The appeal against the order of the Deputy Master dismissing the claim under CPR part 24.2 is itself dismissed.

In view of the conclusions I have reached on the prospects of success of the action, consideration of the abuse argument is strictly unnecessary but I deal with it briefly out of deference to counsel’s argument.

The argument before me was much more focussed than received by the Deputy Master. He was asked to deal with an argument that the proceedings should have been started by way of judicial review rather than ordinary action. That contention fed into a broader argument that there was an abuse of process because matters were being re-litigated in the High Court which had been litigated in the AIT and other matters should have been raised in the AIT, but were not.

In this court, Mr Clayton rests his submission on the straightforward proposition that the Article 8 point was fought but lost in the AIT. Whilst disavowing any suggestion that there is an issue estoppel in respect of Article 8, he suggests that to re-litigate the point is an abuse. Additionally, he submits that the A1P1 point could have been raised in the AIT. It was not and to do so now is an abuse. He submits that there was no reason (save, as he suggested, Mr Gill’s good sense before the AIT) for not raising the A1P1 point then. Mr Lewis submits that the relief being sought in these proceedings was not available in the AIT. That in itself suggests these proceedings are not abusive. He accepts that the A1P1 point could have been raised there but submits that even if successful, the AIT could not have given monetary just satisfaction. He also submits that Mr Modi was not able to challenge the finding under Article 8 made by the Immigration Judge because he won the appeal on other grounds.

The mechanism for challenge then in place following an appeal to the AIT was that found in section 103A of the 2002 Act. There is no authority on the question whether a disappointed party before the AIT could seek reconsideration of one aspect of the determination pursuant to section 103A when he had ‘won’ the appeal. Here, Mr Modi won his appeal under the immigration rules, but was unsuccessful under the Convention. Mr Clayton did not dispute Mr Lewis’ proposition and I accept it for the purposes of consideration of this part of the appeal, without deciding the point.

Both Mr Clayton and Mr Lewis relied upon the speech of Lord Bingham of Cornhill in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 30H to 31F as setting out the modern approach to abuse of process of this sort:

“It may very well be, as has been convincingly argued (Watt, "The Danger and Deceit of the Rule in Henderson v. Henderson: A new approach to successive civil actions arising from the same factual matter," 19 Civil Justice Quarterly, (July 2000), page 287), that what is now taken to be the rule in Henderson v. Henderson, has diverged from the ruling which Wigram V.-C. made, which was addressed to res judicata. But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

For the purposes of this appeal the following represent the propositions that may be derived from Johnson:

The question of ‘abuse of process’ in the relationship between immigration appellate decisions and applications for judicial review in respect of matters that could or should have been raised before the AIT was considered by the Court of Appeal in R (F) Mongolia v AIT [2007] EWCA Civ 769; [2007] 1 WLR applying an earlier decision of the Court of Appeal in R(G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731; [2005] 1 WLR 1445. In Ibrahim and Omer v SSHD I sought to summarise the principles that emerged from those cases in the context of the systems of review then in place:

“The proper avenue for seeking to overturn an appealable immigration decision is (i) an appeal to the AIT; (ii) if unsuccessful on appeal, an application for reconsideration to a Senior Immigration Judge; (iii) if unsuccessful in that application, an application for reconsideration to the High Court. If that route is followed and the High Court refuses to order reconsideration or to refer the matter to the Court of Appeal, that is the end of the matter. The decision of the High Court is not itself subject to appeal; nor can it be judicially reviewed. So if that process were exhausted a direct judicial review challenge to the decision of the High Court Judge would not be entertained. On the authority of R(G) it is a proper exercise of the court's discretion to refuse to entertain an application for judicial review where the matter in issue was or could have been challenged in the immigration appellate and review process. It is expressed as a matter of discretion because there is no ousting of the court's jurisdiction but as Collins J recognised there are very few circumstances in which it would be appropriate to allow such a claim to proceed.”

The approach of the Court of Appeal when considering the relationship between the immigration appellate jurisdiction and judicial review is entirely consistent with the general approach to abuse of process, albeit expressed in the language of exhaustion of remedies and discretion. Whilst expressed in a different way, it reflects the first proposition identified in paragraph [57] above. Almost all appeals to the AIT are concerned with overturning an immigration decision, and nothing more. The principle is that the immigration appellate system must be used, rather than the Administrative Court when the effect of the decision in either would be for practical purposes the same.

Mr Clayton did not rely upon these decisions because the circumstances in this case are different. The AIT could not have delivered to Mr Modi what he wishes to achieve in addition to the reversal of the immediate immigration decision. Therefore, consideration of the abuse argument must proceed by reference to the principles articulated in Johnson.

The hypothesis upon which the abuse argument proceeds is that, contrary to my conclusion, the underlying claim is or may be sound. There is, as it seems to me, a real difficulty in the argument that these proceedings are an abuse of process. A person who claims that his Convention rights have been breached is entitled to bring a claim under the Human Rights Act to vindicate those rights. He may seek a finding that his rights have been violated. He may seek financial compensation. He may seek declaratory relief. Whilst the AIT can determine the question of a violation of rights in a case such as Mr Modi’s, it cannot order the payment of compensation nor make a declaration. To hold that the High Court proceedings are an abuse of process would have the effect of denying Mr Modi the opportunity to bring the claim under the Human Rights Act which Parliament had given him. Whilst there may be circumstances where such proceedings might be held an abuse of process I do not consider that to be the case here.

Mr Clayton was right to emphasise that Mr Modi raised the Article 8 issue unsuccessfully before the AIT and is seeking by these proceedings to achieve a different outcome. A collateral attack on an earlier decision may be an important factor in deciding whether a second set of proceedings are abusive. Yet in this case Mr Clayton accepts that Mr Modi could not challenge that finding within the immigration appellate system. The potency of the point is much reduced. Similarly, even if the Article 8 argument has succeeded before the AIT and also if the A1P1 had been taken and succeeded, Mr Modi would need to bring a second set of proceedings to claim an award of damages or a declaration. It does not seem to me to be an accurate characterisation of what has occurred to describe it as amounting to harassment of UKBA.

On the hypothesis that there were substance in these claims, applying the broad merits-based approach dictated by the House of Lords, I do not consider that Mr Modi would be misusing or abusing the process of the court by seeking to raise before it the Article 8 issue which was raised before the AIT or the A1P1 issue that could have been raised.

The appeal will be dismissed on the ground that there is no real prospect of success.