Airport detainee wrongly denied a solicitor in immigration interview

A would-be student stopped on arrival in the UK was wrongly denied a solicitor in interview, the High Court has found in R (on the application of Kumar) v Secretary of State for the Home Department [2023] EWHC 1741 (Admin).

The facts

Mr Kumar arrived at Manchester Airport with a student visa. The immigration officer who initially questioned him at the desk wasn’t satisfied from his answers that he was a genuine student. He was therefore detained for further investigation. He instructed a solicitor who asked to be present by phone when Mr Kumar was subsequently interviewed. The immigration officers refused this, saying that the solicitor could speak to him before and after the interview but couldn’t attend it. Mr Kumar was being assisted by an interpreter over the telephone and the officers claimed that it wasn’t possible for an additional person to join the call. There was, they said, no legal entitlement to accompanied by a solicitor.

When Mr Kumar was brought into the interview room, he repeatedly refused to participate without his solicitor present. As a result, his leave to enter was cancelled under paragraph 9.9.2 of the Immigration Rules. 

Mr Kumar applied for judicial review of the cancellation. He argued that paragraph 9.9.2 did not apply because he had a reasonable excuse for failing to comply with the interview – namely, that he had wrongly been denied the presence of a solicitor. The decision-making process, he submitted, was procedurally unfair because his right of access to justice had not been honoured. Additionally, the immigration officers had breached Home Office policy, which said that lawyers generally should be allowed to attend interviews.

Access to justice

His Honour Judge Dight, sitting in the High Court, agreed that the cancellation decision was unlawful.

The Home Office argued that Mr Kumar was not entitled to be accompanied by his solicitor in interview. It relied on three old (in immigration law terms) cases, one saying there was no right to an interpreter when interviewed at the airport and two saying there was no right to a lawyer. Judge Dight considered these cases of little use, describing them as ‘of their time’.

Mr Kumar, Judge Dight pointed out, was detained and facing an interview that could lose him the right to enter the UK and study at university. He didn’t know the complex law involved and he had no right of appeal if denied entry to the UK. In these circumstances, access to justice required an opportunity to be assisted by a lawyer. The supposed logistical problems didn’t justify denying Mr Kumar this right, particularly since his solicitor had been permitted and able to join the interview of another client who was detained after arriving on the same flight as Mr Kumar.

The process leading to the decision, therefore, was ‘unfair and fundamentally flawed’.

The wrong starting point

Judge Dight also accepted Mr Kumar’s argument about the failure to adhere to policy. The policy document in question indicated that appropriately qualified legal representatives should generally be allowed to attend interviews. Although there was discretion to exclude a representative if ‘essential’ to do so, this would be a departure from the default position and reasons had to be given.

The immigration officers had taken the opposite approach in Mr Kumar’s case, the judge held. Instead of asking whether there was good reason to exclude his solicitor, they’d wrongly taken the starting point that he wasn’t entitled to have one present. This in turn tainted their approach to the issue of whether his refusal to be interviewed was reasonable.

Mr Kumar therefore won his judicial review claim. The decision to cancel his leave to enter was unlawful, and that made his detention afterwards unlawful too.

Posted on Jul 14, 2023.

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