Home Office – abuse of power – the courts

In the UK, as in other countries, Government agencies sometimes act unfairly and make unfair decisions. But we have an independent justice system which should be able to put things right. So does it happen?

The case of Ms Joshi, a Tier 4 Indian student, was instructive. She was evidently conscientious and hard-working. She obtained a Bachelor’s degree from the London College of Fashion and a Master’s degree from the University of Ulster. Then she applied to study a PhD at Bradford Regional College. But unfortunately – and as has happened with so many other students – the college lost its Tier 4 sponsor licence. This meant that the college could no longer sponsor her to study her course.

As is customary in such situations, the Home Office wrote to her and told her that she had 60 days to find a new course. If she did not find one her leave would expire and she would become an overstayer.

Fair enough, you might say: this is the way that the system operates, and it is not manifestly unfair. But for Ms Joshi it did not work very well. For a number of reasons it was not at all easy to find a suitable new PhD course in a 60-day period, and towards the end of that period she came to the realisation that she was not going to be able to find one in time.

So she submitted a new application to the Home Office to stay in the UK, based on her human rights (private and family life). Such an application can give a migrant extra lawful time in the UK, because by operation of law their immigration leave is automatically extended whilst the new application is being processed. And a “human rights application”, within the legal meaning, might attract an in-country right of appeal if refused. And this extra leave might have given Ms Joshi sufficient time to find a suitable new course.

But this strategy did not work. The application was refused and, not only this, it was certified by the Home Office as “clearly unfounded”. These dreaded words have the legal effect of denying an in-country right of appeal and allowing only an out-of-country right of appeal: in her case from India.

But it was worse than this. The decision was made on 6 May 2015 but – for reasons that are not a great deal clear – the decision was not posted to her, so she was unaware of it and became an overstayer without knowing. And then, on 11 June 2015, the Home Office paid an “enforcement visit” on Ms Joshi and her husband at their home and they were arrested, detained in immigration detention, and served removal decisions.

As one might imagine, Ms Joshi and her husband were slightly upset, and they went to law. The High Court ordered their release from detention and reviewed the Home Office’s conduct. But the High Court judge, whilst expressing considerable sympathy for Ms Joshi and her husband, came to the conclusion – surprisingly, we thought – that there was not sufficient evidence of an “abuse of power” by the Home Office.

The applicants ultimately took it further, this time to the Court of Appeal. But the court in its decision – not published until earlier this year – said that the High Court judge’s decision was “well-ordered”, which was not really a good sign. The court agreed with the High Court that the applicants had not been unlawfully detained for any significant period and there had not been significant abuse of process by the Home Office.

We have somewhat simplified the case: there were a few other legal issues, but this is the gist. There is a thing in English law called the “common duty of fairness”, which the courts have on occasion relied on to the detriment of the Home Office, but not this time.

Our conclusions are that (i) there is indeed an independent justice system in this country which is fully able to assess and if necessary overturn Home Office actions and decisions, but of course (ii) the courts do not always come up with decisions that migrants are happy with. However, this we suppose is the very essence of independence: the courts are not there to please anybody.

It appears that Ms Joshi and her husband did not have legal representation, at the early stages at any rate. If you find yourself involved in one of these tangled legal situations you are well advised to get good legal representation as soon as possible.

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