Poonam v Secretary of State for the Home Department

This case is concerned with an entry warrant for search of shop premises and a subsequent search of the Claimant’s home, by immigration officers. Both searches took place on 27 October 2011 as part of Operation Hasselhof, a mid tier operation by United Kingdom Borders Agency (“UKBA”). The Claimant was subsequently detained for several weeks. Uxbridge Magistrates Court granted a search warrant to the UKBA to search Quality Foods at 1-3 Uxbridge Rd Hayes (“Quality Foods”) for four named persons whose names were given to the Court as having been generated through intelligence. The Claimant was not one of those names.

The Claimant is an Indian national, bom on 23^rd December 1981. She arrived in the UK with entry clearance as a student on 18^th October 2010. Her husband accompanied her as a dependent on her student visa. She gained entry as a student reading for a postgraduate diploma in Hospitality and Tourism Management at the College of IT and E-Commerce (“CITEC”). Her visa was valid from September 2010 to January 2012.

The Claimant seeks redress in this action for oppressive questioning, unlawful arrest, unlawful detention, unlawful search of her home, theft and / or failure to secure her home premises, and the wrongful declaration by the UKBA that she was an illegal migrant subject to removal under Immigration Act 1971 s.10 provisions. Very serious allegations are made about theft by immigration officers of her money and jewellery.

Permission was initially refused on the judicial review application by His Honour Judge Gosnell on 7 February 2012. It was however granted, following an oral renewal hearing on 28 June 2012 by Mr John Howell QC, sitting as a Deputy High Court Judge. Parts of the application were considered unsuitable for further hearing in the Administrative Court list because of the contested factual allegations. Thus these matters were “spun off” to be heard in the Queens Bench Division and Particulars of Claim and Defence (“the new QB pleadings”) were served following the giving of that permission. I have only been concerned in the trial with these matters and not with determining or reviewing the actual immigration status of the Claimant save insofar it affected the issues in the new QB pleadings. This status was relevant only when it related to whether the suspicion of the immigration officers about the Claimant were reasonable.

On the first day of the trial, I allowed an amendment to the QB pleadings to contend that notwithstanding that the search warrant was for four named persons “the Defendant in fact carried out an enforcement visit which was intended to screen all persons present at Quality Foods for immigration purposes and that this went far beyond the scope of the warrant”. I so decided (over the objections of the Defendant) because the matters were already to some extent “in play” and I did not consider that there was any prejudice to the Defendant in those matters being ventilated.

I heard from the following witnesses for the Claimant:

The Defendant’s witnesses were:

I consider all the immigration officers gave the court honest evidence in their statements and answers when questioned during the trial (save in one respect as set out below in the statement of Officer Hussein), as they were cross examined extensively by Ms Jones Counsel for the Claimant. They were all experienced officers and had been on many similar such operations. All were arrest trained.

Although much else was contested, the following important facts were common ground between the parties:

I also find that

I now deal in turn with the following issues which were in dispute (largely taken from the submissions of Ms Jones):

Under s.15(6)(b) Police and Criminal Evidence Act 1984 (“PACE”) a search warrant must identify, so far as is practicable, the articles to be sought in that search. By s. 16(8), a "search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued". A search which goes beyond the extent required for the purpose for which the warrant was issued would therefore be contrary to s. 16(8) and unlawful. There is no power for a random search to be conducted for immigration offenders: R v. Chesterfield Justices, ex parte Bramley [2000] Q.B. 576.

Ms Chadwick who led this operation said that she believed that the magistrates who granted the warrant preferred to be given specific names for a search warrant; one can see why this should be, although Counsel accepted that it was possible to gain a search warrant for “persons unknown” at a particular site (which did not occur here). Ms Jones contended that the magistrates were misled in this case; the UKBA she said were telling them what they wanted to hear in that general (commonly occurring) names were put forward. What is clear is that the search warrant of Quality Foods was granted only in order to search for 4 named persons Mangat Khan, Kuldeep Singh, Mandeep Singh and Deepak Singh and documents associated with them (although the information by the

Officer Hussein said that he “was told in briefing to check the immigration status of everyone working there”. Officer Khasriya told the court that although there were named suspected offenders “we would speak to everyone to see if they were named offenders”. The briefing lasted about fifteen minutes and was conducted by Officer Chadwick.

The actions of the immigration officers went beyond the permitted scope of the warrant and it appears that they were always going to do so given the contents of the briefing. The Quality Foods staff were assembled in a body and all questioned, only being eliminated if they were proved to be British citizens or had clear immigration status.

Officer Khasriya said in his statement that the Claimant “attempted to hide the fleece under the till she was working at” on the sight of the immigration officers’ arrival at the premises. If the Claimant had not drawn suspicion to herself I would have considered that this was in the case of the Claimant a random search of her, but given that she did so

Ms Jones submitted that the Claimant was not cautioned at all and commented that even on the Defendant’s own case she was not cautioned until two hours after the operation commenced; 11:35am was the first reported caution (in the Premises Search Book) but even that was not recorded in the cautioning officer’s pocket book as it should have been. Ms Jones also said that the Defendant had a dilemma given the recorded facts:

It is necessary first to consider the legal position on cautioning. Section 67(9) PACE provides:

“Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of [the PACE code of practice]”

Chapter 38 of the UKBA's Enforcement Instructions and Guidance sets out the cautioning which is required by immigration officers:

Chapter 61 of the same Enforcement Instructions and Guidance (Arrest Teams - Operational Procedures) includes the following passage:

The meaning of a “caution + 2 interview” is spelt out in Chapter 37.2.1.

The relevant Immigration Officer here, Officer Hussein, states in his witness statement that the Claimant was cautioned by him. The Claimant strenuously denies this. I think that the Officer is the more reliable witness for reasons I will consider generally below. Here the fact that there was a caution is corroborated by notes made at the time (which I find to be reliable), albeit not made in the correct place. Officer Hussein did not note this in his pocket book as he should have done (nor did any of the other officers) but I am satisfied he did give the caution because

I was, however, not at all impressed by the attempt of Officer Hussein to suggest in his witness statement that the reason he did not note the caution was because of officer safety issues (para 5 of his witness statement). There is no basis for such a contention. No-one was arrested for violence during the operation, threatening violence, or threats of any kind during this operation. As Ms Jones states “The 12 or so Immigration Officers were at the premises for more than 4 hours in total, a length of time which allows for a person to write ‘caution x 2’ or even ‘c x 2’ several times in his notebook.”

I think there were two languages the Claimant understood quite clearly (English and Hindi). I so find because she was able to answer questions in court in English before asking for an interpreter half way through her cross examination. I am satisfied on the balance of probabilities that the Claimant was told in a language she understood that she did not have to say anything and that it was clear to the claimant she could leave if she wanted to.

It is necessary to consider whether the exceeding of the search warrant rendered the questioning of the Claimant at the Quality Foods premises unlawful. Ms Jones accepted (on the authorities) that the officers executing such a warrant do not have to adopt “tunnel vision” when they reach the premises but she said that the nature of the briefing here made this visit to execute the search warrant unlawful from start to finish, and that unlawfulness in effect infected all that followed, including the prolonged detention of the Claimant in Yarls Wood IRC. Even had the caution not been given, however, the starting point is that the Claimant’s answers were, at least, relevant to the decision to arrest and/or detain.

There are indeed separate powers to arrest and detain from the power to search premises. Schedule 2 to the 1971 Immigration Act, as amended, allows immigration officers to locate, arrest and detain for removal those in respect of whom there are reasonable grounds for suspecting that removal directions may be given, pending a decision whether or not to give such directions.

Paragraph 16 provides, so far as material:

Chapter 31.13 of the Defendant’s Enforcement Instructions and Guidance provides in similar terms:

“During visits to ... places of employment, people should be “invited to answer questions” about their immigration status only if there are reasonable grounds to suspect that they are immigration offenders (Singh v Hammond)

If the purpose of the visit is to locate a named offender, you should usually only question people on the premises to eliminate them from enquiries.

The Chapter then gives specific examples “where it is justifiable to invite a person other than the named offender to answer questions”. These include:

“where a person gives reasonable cause for suspicion that he is an immigration offender, for example

•

By his behaviour (for example an attempt to conceal himself or leave hurriedly

....

•

If a named offender is located at a place of employment and there is reason to believe that other employees are offenders where the employer has a history of engaging immigration offenders

I do think the questioning of the Claimant falls within these categories. I must now go on to consider whether the questioning was oppressive, in which event the reliance that can be placed upon them in these civil proceedings would be minimal. In Ghulam Yasim v Secretary of State for the Home Department [1996] EWCA Civ 707, the Court of Appeal rejected the submission that, in a civil claim, sections 76 to 78 PACE precluded reliance altogether upon any evidence by an interview without a prior caution. Those exclusionary provisions were confined, the Court made clear, to criminal proceedings.

The Court however emphasised that

The Divisional Court established in Singh v Hammond [1987] 1 WLR 283 that, having regard to section 4(2)(c) of the 1971 Act which provides that the provisions of Schedule

Although I accept that the Claimant was distressed by the questioning (in particular as stated in her main witness statement, paragraphs 5 to 7) I do not consider it unreasonable or oppressive within the relevant definition just stated. There was nothing conducted in a burdensome, harsh, or wrongful manner; with unjust or cruel treatment of subjects, inferiors, etc, or the imposition of unreasonable or unjust burdens. They were on the contrary necessary questions to ask in the circumstances. Those suggestions of oppression were indeed not put squarely to the Defendant’s several witnesses when they were giving evidence by Ms Jones.

It is important to note that in those answers to the immigration officers, the Claimant confirmed:

Ms Jones is, however, correct that even on the Defendant’s own case what was done by the immigration officers breaches Code C para 10.13. There was no written record of the interview in a foreign language; I do not however think that anything flows from this in term of loss and I regard this breach although unfortunate as purely technical.

On the evidence which I have heard, I am satisfied that

Further, the assignments cannot record her own experiences as they purport to do. The Claimant chose as the subject of her second College assignment contained in the Trial Bundle a restaurant in Atlanta, Georgia which the assignment suggested she had actually visited although in evidence she denied that she had done so. Having said that these assignments were the finished article, she later sought to renege from that and say they were rough work to be corrected. There was also no evidence of acceptance of either assignment by the College (nor indeed anything save a handwritten note to tie the assignment to the College at all). She was very vague as to why the necessary third and fourth assignments were not completed. This also contrasts with paragraph 5 of her second witness statement that “I had completed all of my assignments”.

On 27 January 2013 Bhogal Partners wrote on behalf of the Claimant to CITEC saying that “after August 2011 our client [the Claimant] was neither made aware of nor informed of the final term date”. This was crucially the period in which our client was required to submit her research project that would determine her final grade to complete the course she was on.

As in previous sections of this judgment I consider first the law then apply it to the facts. A search of the Claimant's home was conducted without a warrant under the Immigration Act 1971, Schedule 2, s.25A(2). This power provides:

In Bhatti v Croydon Magistrates Court [2010] EWHC 522 (Admin) search warrants had been obtained, and the details of the address(es) to be searched had been filled in by hand as the warrant was executed, rather than the schedule to the warrant showing the addresses being provided to the occupiers of the premises.

The Court found that there had been a breach of the requirement to provide a copy of the warrant. At paragraph 21 the court stated:

At paragraph 22, the Court said:

In Faisaltex Ltd & Ors, R (on the application of) v Crown Court Sitting At Preston & Ors [2008] EWHC 2832 (Admin) (21 November 2008):

I thus decide this aspect on the basis of the need to find proper and stringent compliance as required by Bhatti. Bhatti was concerned with search warrants. The power used in this case to search the Claimant’s home without a warrant is even more draconian.

Here no (or certainly insufficient) grounds for the search warrant were given in writing. The notice states that the grounds for the search are, “After Arrest” and the documents sought are, “Documents establishing identity and nationality”.

CIO Legg was asked whether he knew what was said that made him think there was a passport in the premises but could not say so. Ms Chadwick said that it would be standard procedure to search in such a situation and one can immediately see the sense of that position, given that the passport was not with the Claimant at the shop, and it was likely that it would be (if anywhere) at her home.

I however accept Ms Jones’ submission on the authorities that the chief immigration officer who authorises a search without a warrant must turn his or her mind to whether reasonable grounds exists for the search. There is no basis for thinking that he did so here given that the only record of the reason on the form is “search after arrest”. The power only arises after arrest in any event. So the arrest cannot be grounds for the search and only this is put forward.

Mr Thomann is correct in his submission that Para 25A(2) does not specify the precise form in which the written authorisation is to be recorded and that the Claimant was provided with an “Arrest Team Search Authority” form informing her

Nevertheless I consider that there has been a breach of s25A (1) (6) because details of grounds are not given. I do not however consider that this rendered the subsequent detention unlawful and it had only a limited effect as discussed below.

The Claimant took officers after her questioning to her premises, a small annex/garage located at the rear of 136 Brent Road, Southall known as 136A. She led officers to where she stated she believed her passport to be. When it was not found, the property was searched, whilst the Claimant was escorted to the cellular vehicle outside. A Premises Search Book was kept, which recorded in some detail the time of entry and exit, as well as documents found. Her passport was not located although the passport of another person was. A copy of the authority to search the premises following arrest, and a copy of the information to the occupier were left on the kitchen worktop.

It is contended in paragraphs 10 and 15 of the Particulars of Claim that “the seizure of [the Claimant’s] possessions by the Defendant’s officers constituted a wrongful interference with goods”. Jewellery is claimed in sum of £2132.28, cash of £3000 “taken from the Claimant’s family member” (this as pleaded runs into the problem that the brother in law was not a party to the action) and “two house keys worth £10”.

Miss Jones says that the evidence bears out the pleading that the premises were left in a state of serious damage and messiness that had not been present before the search; that valuable items were missing, and the door was not secured. In her skeleton argument she says “Either items were taken from the premises, or the premises were left unlocked and some other person removed them. In either event, it is submitted that the Defendant bears responsibility for the loss of the cash and gold.” I do not accept that the words underlined fall within the pleaded case.

Mr Sunda says that he returned with his brother at 6pm and found the door unlocked. I do not accept that the door was left open when the immigration officers departed. The locking was recorded in the premises book kept by the officers. No complaint was made about that at the time as one might have expected if this were so. It was only much later that this allegation emerged. It is also notable that Mr Sunda said that beds had been damaged in the search but this is not shown on the photographs.

Paragraph 16 of the Particulars of Claim assert that “her possessions were damaged as a result of the officers raid and searching the property... 13 suitcases which [sic] zips, lining and compartments were broken and damaged and in need of replacement”. I am also not satisfied that any suitcases were damaged because

I also do not accept the Claimant’s evidence that her brother in law had just given her a necklace worth over £2000 on the day before for Diwali. It seems very strange that he should happen to give it then when the receipt which is contained in the Trial Bundle was from as long ago as 2009. It was noticeable that the Claimant’s brother in law who could have easily cleared up this point (and the alleged giving of £3000) neither gave evidence nor put in a statement.

Without corroboration from the brother in-law (and I was given no reason why he might be unavailable), I am not prepared to accept that he (the brother in-law) made money in the sum of £3000 available to the Claimant and her husband (according to them for the purposes of a visa application). In any event I do not accept that the officers took the money which is the only allegation that is pleaded (there is no plea of negligence). Ms Jones sought to develop a point that there was negligence on the part of the officers which allowed someone else (unspecified) to take the money but I do not believe that the officers left the premises unlocked. Rather as they all said the premises were secured by locking the door.

I do not accept that the property was left by the Immigration Officers in the condition shown in the photographs which were presented to the court; it is obscure precisely when the photographs in the bundle (other than those related to the suitcases) were taken. Further they would not find the passport easily if it were in such a state. I infer that either they depict some other break in (which had nothing to do with the officers) or the premises were dishevelled for the sake of gaining damages in this case.

Ms Jones sought to develop a case that the Claimant was entitled to damages for the period she has remained in the UK because after her leave was cancelled on 27 October 2011 she was then left in limbo ie she cannot work and she cannot study. I do not accept that this is contained in the pleadings but in any event it appears to be misconceived.

Finally I consider the effect of what has gone before on the Claimant’s detention. The UKBA has issued an IS151A notice, and intends to remove the Claimant and her husband under the Immigration Act 1971 s.10 although I am told that the Claimant has now put in a Tier 4 application.

In the Particulars of Claim paragraphs 5d and 6 it is said that the Claimant was served with an illegal entry notice for allegedly working more than 20 hours without proper cause or evidence that the Claimant had breached the terms of her visa or committed an offence. Ms Jones stated that there is no evidence upon which the reasonable immigration officer could conclude that she was working in breach, and therefore removal cannot possibly be imminent. As the Claimant has leave to remain in the UK, she should never have been detained, and her continuing detention was also unlawful.

Miss Jones further submits in her skeleton argument: “The Claimant obtained employment in March 2011 at Quality Foods, in Hayes. She has continued to study in addition to the part-time work. The Claimant was on a staff rota, and did not work more than 20 hours in any term-time week (para 4). The evidence that the Claimant has breached the terms of her visa is extremely thin”. She goes in to say “The interview with the Claimant, conducted as detailed above in flagrant breach of the law, could not provide a reasonable suspicion that the Claimant would be removed, and therefore the arrest was unlawful.... As the Claimant has leave to remain in the UK, she should never have been detained, and her continuing detention was also unlawful”.

I do not accept any of this submission. The UKBA Guidance states in Chapter 50:

I have no doubt that there was reasonable suspicion that the Claimant was working in breach of her visa conditions arising from:

There was a difference between Counsel as to the correct test of proximity to establish the cause of action in damages. Ms Jones appeared to contend for a but for test; Mr Thomann said I needed to be satisfied that there is a “close connection” between any unlawful act and unlawful detention. Given that there was he said a separate statutory authority to question an immigration offender there was he said here no relevant link between the warrant of search and the detention.

I accept Mr Thomann’s written submission that it does not follow that the exceeding of the warrant rendered unlawful the Defendant’s subsequent detention. The lawfulness of immigration detention is to be tested by reference to the four principles stated in Hardial Singh [1984] 1 WLR 704. Detention must be for the purposes of removal. It must not exceed a time which is reasonable in order to effect removal. Where it becomes clear that removal will not be achievable within a reasonable timeframe, the subject must be released. The Secretary of State must further act with reasonable expedition.

Each of these conditions was, at the material time, fulfilled (and I did not detect an attack on this by Ms Jones who relied on the prior unlawfulness with which I have already dealt). The suggestion that detention was in those circumstances vitiated by any unlawfulness underlying the preceding search exercise, and that this gives rise to a claim for substantive damages, is not sustainable on the facts of this case as I have found them.

There is here an insufficient close connection between the limited ground of unlawfulness I have found proved and the exercise of the power to detain. The Supreme Court considered in Kambadzi v SSHD [2011] 1 WLR 1299 a breach of the Defendant’s public law duty to review detention regularly. In considering whether a breach of this

In that case the relationship between review and the exercise of authority to detain was “very close”, such that the two “go hand in hand” (paragraph 52). Here, by contrast, the statutory basis for questioning, in Schedule 2 of the 1971 Act, stands independently of the terms of the warrant of entry. The decision to authorise detention was based not on items seized at the premises, but on the answers the Claimant gave under caution (which she signed as accurate) following questioning authorised under the Act. The scope and purpose of the entry warrant was, in those circumstances, a part of the background leading up to questioning. There was no direct nexus with the decision to arrest and detain.

Any claim to substantive damages would need to demonstrate causation. As Baroness Hale explained in paragraph 74 of Kambadzi:

The Court of Appeal has since confirmed the correctness of this approach in R(OM) v SSHD [2011] EWCA Civ 909:

“It seems to me that on normal compensatory principles it would be for the claimant to prove his loss on the balance of probabilities. ” (para 23; also para 20).

Where, as here, it is clear that the Claimant could and would, on the balance of probabilities, have been questioned lawfully and thereafter detained regardless of the ambit of the warrant obtained, substantive damages for the scope of the search cannot be sustained. To put it another way, in view of inter alia, the Claimant’s conduct upon arrival (which her own counsel suggested should have led to caution there and then), she is unable to make good that any breach of law about the scope of the visit on 27 October 2011 affected her adversely.

The search of Quality Foods beyond the persons referred to in the search warrant has not caused the Claimant’s subsequent detention nor does it render that detention unlawful. It is part of the history of events given the reasonable suspicion of the Claimant caused by the removal of the fleece and subsequent lawful questioning.

In my view the Claimant’s detention also cannot be said to be unlawful by reason of the only potentially causative breach which I have found (namely the failure to identify the grounds of search of the Claimant’s home).

The Claimant may and I emphasise may be entitled to damages for the breach just referred to in the previous paragraph. Since the issue of the level of damages was only addressed briefly in submissions by both Counsel (as is understandable given the various permutations of liability) I propose to allow Counsel to address me when judgment is handed down on what the proper award (if any) should be given my findings.

They can also then deal with any other consequential matters (if these cannot be agreed before the handing down).