Mark Symes explores whether current Home Office immigration raids and rapid enforcement action meet principles of procedural fairness, and offers insight into the difficulties of mounting judicial review challenges.
Today I am writing about immigration raids on small businesses sectors and the cancellation of visas that often ensues for those suspected of working in breach of their visas, typically because whilst entitled to undertake supplementary work they appear to be performing a non-sponsorable role or working excess hours.
It is unsurprising that the Home Office, charged as they are with enforcing immigration control, take tough action against migrant workers found to be breaching the conditions of their permission to stay in the UK. But as enforcement action ratchets upwards, there is always a danger that innocent migrants will face inappropriate compliance action.
The increased enforcement activity is pursuant to Operation Tornado, a term which neatly captures the speed of many immigration raids. Typically, immigration permission is cancelled on the day of the immigration raid after a brief on-site interview. This makes any subsequent legal challenge very difficult as the starting point in all judicial review (“JR”) claims is the evidence that was before the original decision maker. Any representations and evidence sent by way of Pre Action Protocol (PAP) letter or otherwise will necessarily be post-decision, and therefore in principle out of play for JR purposes. Furthermore, the JR process operates on the presumption that, absent clear verifiable documentary evidence to the contrary, the government’s version of events is accurate. It seldom permits any argument as to the precedent facts upon which immigration decision making is based.
Nevertheless, the basic legal terrain is usually straightforward. Absent some case specific factor, the core argument is likely to be that cancellation is unfair without giving the migrant worker a proper opportunity to respond to the allegations. Very arguably the Home Office have a duty to make the appropriate enquiries to determine the true facts, going beyond asking a few questions without notice. Really even these two points are but two sides of the same coin. From my own experience, immigration JRs (usually brought in the Upper Tribunal (UT) unless there is a detention dimension) frequently feature far more grounds than are necessary: concision and precision is a virtue.
Border officers must follow the core principles of fairness, particularly where the decision has serious consequences. Doubtless the various sequalae of cancellation of permission may be very serious, ranging from a major blot on one’s CV and loss of livelihood to an effective ban on return to the UK (and quite possibly to other countries which take account of adverse UK decisions) for a prolonged period.
A lawful cancellation decision has two stages. Firstly, there must be a breach of permission. Secondly, discretion must be appropriately exercised having regard to the degree of culpability. At both stages all relevant considerations should be borne in mind, which may require reaching out for further information, or making enquiries of third parties.
The initial PAP letter and JR grounds should seek disclosure of the interview records. Given that these are often only disclosed following JRs being lodged, it may then be necessary to apply to amend the JR grounds in light of any note of interview. Alternatively, it may be possible to seek pre-action disclosure via an application to the UT. Critical issues include whether the precise allegation leading to cancellation of immigration permission was put to the migrant worker, whether there is any ambiguity in their answers, and whether they sought an opportunity to obtain further information, for example from their own records or from their employer.
One commonly sees decisions relying on the fact that working in breach of conditions is a criminal offence: but a finding of criminality must show that the breach was committed knowingly, rather than accidentally. Further, where criminality is alleged, the burden is on the state to prove the offence beyond all reasonable doubt. It is a little difficult to imagine that the brief snapshot of evidence available to a decision maker following a compliance operation could justify a conclusion to the standard of proof of beyond reasonable doubt.
Another factor sometimes cited is suspicious conduct at the moment of the raid, such as walking out of the kitchen area. Given the practice of not wearing bodycams, subjective opinions of this nature are not easily open to challenge. But one sometimes wonders if those caught up in these events may be rather intimidated. Recent disclosures indicate up to ten officers wearing “PPE” participating in operations for even small restaurants and referring to the operational units as “ICE teams”. One wonders where that abbreviation comes from. Perhaps they were once Torvill and Dean fans. Long ago the Court of Appeal ruled that interviewing an asylum seeker without an interpreter or representative present requires some special procedural safeguard to ensure a fair procedure, such as a tape recording. One might think the same should apply to cancellation decisions given their potential gravity. In those days making a recording represented something of an effort: now of course nothing could be simpler than making a digital recording on any device and sharing it with all interested parties.
I have already stressed the general bar on post-decision evidence. But there is at least one possible exception to this. If ECHR Art 8 rights are engaged, then the court must decide whether the resulting interference caused by the cancellation of immigration permission is proportionate. So, there would need to be a trial of that issue on the merits. Then post-decision evidence would be admissible so that the judge can establish the true facts on balance of probabilities. It would be difficult to get the argument off the ground if there were only a relatively faint UK footprint: e.g., where a Skilled Worker has no family here and has spent only a few months working here. But one can imagine cases where they and their family have uprooted to make a new life for themselves in the UK.
Although post-decision evidence may not be admissible in establishing unlawfulness, it can still play a part at the pre-action stage in persuading the Home Office that there is a reasonable explanation for the matters raising suspicion at the time of the compliance visit. It may also be admissible to cast a light back on what might have been before the decision-maker had a procedurally fair process been followed. In the course of any JR proceedings, the same evidence may show that the alleged mistakes are material – i.e. that a reconsideration of the case pursuant to the UT’s order on the JR would have a real prospect of success. So, statements from employers and reliable witnesses who can confirm the sponsored worker’s true role may be useful. The more corroborative and objective the material, the better: such as payslips consistent with the hours worked for the principal sponsor and any other supplementary employment, and truly “independent” material such as matching bank statement confirming earnings consistent with the permitted work.
Overall, one can see that cancellation decisions can be tough to challenge. But individuals with independently verifiable evidence of compliance with their immigration conditions may succeed if their case is thoughtfully presented.
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