Law Firm Limited

06/10/2021

Short-term Work on a Visit Visa

British businesses have long relied on workers from the European Union to come in for short or medium-term projects. Before Brexit, this was frictionless from an immigration perspective. People arrived, people worked, people left and businesses were happy.

EU free movement ended (for the UK) on 31 December 2020, but the impact was largely masked by the pandemic which struck Europe weeks later. With borders and workplaces now opening back up, businesses are being confronted with post-free movement realities.

The first instinct is to turn to the Points Based Immigration System for sponsoring workers. But while sponsorship is fine for businesses that wish to employ foreign staff long term, it is expensive and unwieldy in situations where overseas workers are needed for a matter of weeks or months rather than years.

For some businesses, rather than investing in a sponsor licence, the solution may in fact lie in the UK’s visit visa rules. This will be somewhat surprising, given that the first and second rules of Visit Club are “you do not work on a visit visa”. That starting point is, however, qualified by the permitted activities for visitors, some of which are work-related.

Buried in the permitted activities is a seldom-used rule called PA 7. It permits an employee of a foreign manufacturer or supplier of goods to work in the UK on a standard visit visa in order to fulfil a contract of purchase, supply or lease. But the way the rule was drafted up to now, it only helped if there was a two-party relationship. What if specialist labour for installation is supplied by a third party?

As of 6 October 2021, PA 7 has been amended. It now reads as follows:

An employee of an overseas company may install, dismantle, repair, service or advise on machinery, equipment, computer software or hardware (or train UK based workers to provide these services) where there is a contract of purchase, supply or lease with a UK company or organisation and either:

(a) the overseas company is the manufacturer or supplier; or

(b) the overseas company is part of a contractual arrangement for after sales services agreed at the time of the sale or lease, including in a warranty or other service contract incidental to the sale or lease.

The addition of part (b) expressly opens up work on a visit visa to three-way contracts where one foreign company manufactures or supplies the goods or equipment, and a separate foreign company provides the specialist labour to install it.

To take advantage of this, the third party installer must specifically be written into the contract for after-sales service agreed at the time of sale.

As this is a new rule, the Home Office will likely issue guidance on its interpretation in due course. Taking the revised wording at face value, though, it is a simple change with a potentially big impact: foreign workers can undertake certain projects for UK companies without having to be sponsored or directly employed.

04/10/2021

New Immigration Concession for Fuel Tanker Drivers

Certain foreign citizens who can drive fuel tankers can enter the UK without a visa until 15 October under a new immigration concession.

The Home Office published the Concession for temporary leave to allow employment as HGV fuel drivers on Saturday 2 October. It allows entry outside the normal Immigration Rules until 15 October, with permission lasting until 31 March 2022, for people who:

- Are not visa nationals
- Have an EU licence to drive HGV fuel tankers
- Have an “endorsement letter” from the Department for Business, Energy and Industrial Strategy
- Will be employed as a fuel tanker driver
- Will not need to claim benefits
- Intend to leave the UK afterwards

How does this fit with the announcement a week earlier of 5,000 “HGVisas” for drivers? The scheme has been split up: 4,700 Seasonal Worker visas for drivers in the food haulage sector (expiring on 28 February 2022, not Christmas Eve as previously announced), and 300 places for fuel drivers under this concession. The terms of the concession itself do not mention such a limit, but presumably the business department will only issue 300 letters.

Meanwhile, the 5,500 Seasonal Worker visas for poultry workers will expire on 31 December (again instead of 24 December). Both they and the food haulage drivers “will arrive from late October”.

It is not clear whether the application process will be in place any earlier than late October.

Comprehensive UK relocation solutions for private individuals and businesses. Assistance in Immigration, Business, Property and Education matters in the UK

14/05/2021

“Hand on the tiller” prosecution for assisting unlawful immigration fails

Fouad Kakaei is an Iranian man who helped steer small boats carrying asylum seekers across the English Channel on two separate occasions, in July and December 2019. He also attempted to cross on several other occasions. Following the July 2019 crossing, he did not claim asylum here in the UK and was returned to Denmark, where a previous claim for asylum had already been refused. He did claim asylum in the UK after the December crossing but was charged with illegal entry under section 24 of the Immigration Act 1971, pleaded guilty, and was sentenced to four months’ imprisonment. He also faced trial for the separate crime of assisting unlawful immigration, an offense under section 25 of the 1971 Act attracting a maximum sentence of 14 years. Following a legal ruling at his trial, he pleaded guilty to this offense as well and was sentenced to 26 months’ imprisonment.

A few weeks ago, his conviction for the section 25 assisting unlawful immigration offense was overturned by the Court of Appeal. Its complex judgment was only published today: R v Kakaei [2021] EWCA Crim 503. In the intervening period, Mr. Kakaei was retried and was acquitted by a jury yesterday. The outcome appears to be a major blow to the current Home Office strategy of prosecuting “hand on the tiller” cases using what are essentially human smuggling offenses.

There were, we think, two ways that a defendant might have been constructed for Mr. Kakaei.

One is the very hard way, which is to rely on the terms of the Refugee Convention and argue that a prosecution should never have been brought because it constituted an abuse of process. As we’ll see, there are a number of problems with this approach. Then there was the merely hard way, which was to rely on the provisions of domestic law and show that they led to the same result. Mr. Kakaei’s legal team, led by Aneurin Brewer, succeeded in this latter argument.

The Refugee Convention

The prosecution of refugees for crossing borders is controversial. Self evidently, refugees have to cross borders without prior permission. A refugee whose life is threatened rarely has time to apply for a passport, apply for a visa, and travel via an international airport. There is no such thing as an asylum visa anyway. A minuscule fraction of refugees in refugee camps are selected for resettlement and many refugees from repressive countries (including Iran) have no obvious adjacent camps to go to.

Based on the experiences of refugees before the Second World War, the drafters of the Refugee Convention recognized this reality and included at Article 31 a “non penalization” clause. This obliges countries that are signatories to the Convention not to

impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

We have written about Article 31 before, both in the context of prosecutions for illegal entry and the legally incorrect assertion that refugees must claim asylum in the first safe country they reach. The issue Mr. Kakaei’s case raised was different: can or should a refugee be penalized simply for helping to steer fellow refugees to safety?

The United Kingdom is, sadly, not the only country seeking to penalize refugees for assisting other refugees. Canada introduced laws criminalizing such behavior. But in 2015 those laws were struck down by the Canadian Supreme Court in twin judgments B010 v. Canada (Citizenship and Immigration) [2015] SCC 58 and R. v. Appulonappa [2015] SCC 59.

In the first of the Canadian cases, Chief Justice McLachlin held that

The law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection (or refugee determination procedures) to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or another material benefit.

He reiterated the point in the second judgment:

As I explain in B010, art. 31(1) of the Refugee Convention seeks to provide immunity for genuine refugees who enter illegally in order to seek refuge. For that protection to be effective, the law must recognize that persons often seek refuge in groups and work together to enter a country illegally. To comply with art. 31(1), a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.

There is therefore a strong argument that Article 31 of the Refugee Convention protects refugees collectively seeking sanctuary. These judgments are relevant here in the United Kingdom because when it comes to the interpretation of an international instrument, our courts will always have regard to judgments in other countries and the opinions of well-respected international law academics. It is considered undesirable that an international instrument be interpreted differently in different countries. International authorities are not binding but they are highly persuasive, particularly if from a supreme court.

BUT… the Refugee Convention is not properly incorporated into UK law so a refugee cannot just rely on it in defense of prosecution under UK law.

This brings us back to the facts of Kakani. For someone to be guilty of assisting unlawful immigration under section 25, there needs to be an identifiable immigration law that the assisted person has broken. In this case, the prosecution seems to have asserted that this breach was by the other asylum seekers on the small boat which Mr. Kakaei helped to steer, and the relevant broken law was section 24. Mr. Kakaei himself had already pleaded guilty to a breach of immigration law under section 24, and thus it seemed arguable that the other asylum seekers might also have breached the same law.

But as we have seen, section 11 of the Immigration Act 1971 means that an asylum seeker does not knowingly enter (for immigration law purposes) the UK without leave if he or she applies for asylum at port. Edis LJ at paragraph 51 of the judgment says:

The question was whether there was any material before the court to show that the passengers on these journeys would have committed an offence under section 24 if they had carried out the plan which the appellant had facilitated by piloting the boats. It was later agreed in the basis of plea that they planned to disembark and surrender to the UK Border authorities and claim asylum immediately. Whether that constituted an offence under section 24 would depend on where they arrived in the UK. If it was at a port with an approved area, then they would not commit the offence.

Similarly, being picked up at sea and brought to a port would also not breach section 24.

Mr Kakaei therefore had a defence: it is not a breach of UK immigration law for asylum seekers to claim asylum at port on arrival and therefore he had not necessarily assisted unlawful immigration. Given that he was acquitted yesterday, it looks like this defence was accepted by the jury.

13/05/2021

Court of Appeal considers unduly harsh deportation test

The Court of Appeal has considered, again, whether it is “unduly harsh” for British children to be separated from their father on the basis that he is a foreign criminal.

The case is TD (Albania) v Secretary of State for the Home Department [2021] EWCA Civ 619. It concerns an Albanian national who was granted indefinite leave to remain in 2011 and lives here with his British partner and their three children. Due to his persistent criminal offending, the Home Office decided to deport him. The question for the Court of Appeal was whether it would be unduly harsh for them to do so.

Public interest in deportation

As regular readers will know, the law provides that deportation of foreign criminals is in the public interest. In this case, there was no serious crime leading to a prison sentence of more than one year. But there were a number of minor crimes, which brought TD within the definition of “persistent offender”. By the time of his First-tier Tribunal hearing, he had been convicted of:

Driving whilst uninsured, for which he received a fine;
Attempted theft, for which he received 23 weeks’ imprisonment ;
Theft from a meter, for which he received eight months’ imprisonment;
Possession of articles for use in fraud, ten months’ imprisonment;
Driving whilst under the influence of drugs, for which he was disqualified from driving; and
Being involved in a police chase (aka dangerous driving, driving while disqualified, driving without insurance, and failing to stop), for which he received eight months’ imprisonment.
In light of this, the Home Office considered that TD was a persistent offender, and therefore a foreign criminal for the purposes of the legislation, and therefore there was a public interest in pursuing deportation.

Family life in the UK

The public interest in deportation can be outweighed where deportation would have an unduly harsh effect on the foreign criminal’s British partner or children.

In this case, deportation would result in the loss of family life. The First-tier Tribunal accepted that family life would not be able to continue in any real sense through modern means of communication (a welcome finding, given the Home Office’s regular insistence that family relationships can continue via video calls).

The family would also lose its breadwinner and would become reliant on benefits. The tribunal accepted that the impact of deportation on the children — aged seven, ten, and 11 at the time of the hearing — would be “significant” and that they would be “very upset”.

Balancing exercise

However, the impact was not so severe that it reached the unduly harsh threshold.

The First-tier Tribunal decided that it would be unduly harsh for the British family members to live in Albania. But it would not be unduly harsh for them to remain in the UK without the appellant.

It was accepted that it would be in the best interests of the children for their father to remain part of the family in the UK. But this is not a “trump card”. There was no “reliable evidence” that deportation would have “a psychologically significant impact on the children”. The children had been separated from him before during periods of imprisonment without this affecting their progress at school. As a result, deportation would not be unduly harsh.

The Court of Appeal endorsed the decision of the First-tier Tribunal. The court did not accept that the judges below had made the same error highlighted in HA (Iraq), namely substituting the unduly harsh test for a generalized comparison between the children’s situation and a baseline notion of ordinariness.

On the contrary, the FTT carried out a careful and balanced evaluation of all the important factors and reached a rational conclusion. It rightly gave significant weight to the interests of the children but it was entitled to find that the public interest in the deportation of the Appellant should predominate and that the effect of the deportation on the children would not be unduly harsh.

These cases are notoriously fact-specific, and unfortunately for TD and his family, the facts of his case were insufficient to displace the public interest in deportation.

13/05/2021

Renter eviction ban to finish at end of May

A ban on rental property evictions enforced by bailiffs in England will end on 31 May, the government has confirmed.

The ban was brought in during the coronavirus pandemic.

Bailiffs were asked not to carry out an eviction if anyone living in the property had Covid-19 symptoms or was self-isolating.

The Ministry of Housing said renters will continue to be supported as national coronavirus restrictions ease.

Eviction notice periods - which were previously extended to six months as an emergency measure during the pandemic - will be set at four months from 1 June.

If lockdown restrictions ease as planned, notice periods will return to how they were before the pandemic from 1 October. In England, that's usually two months.

The Ministry of Housing, Communities, and Local Government said that 45% of private landlords own just one property and are highly vulnerable to rent arrears.

It added that there is still extensive financial support to help people meet their outgoings, including the furlough scheme and the Universal Credit uplift, which have both been extended until the end of September.

Housing Minister Christopher Pincher said: "As Covid restrictions are eased in line with the roadmap out of lockdown, we will ensure tenants continue to be supported with longer notice periods, while also balancing the need for landlords to access justice.

Courts will continue to prioritize the most serious cases, such as those involving anti-social behavior.

Ben Beadle, chief executive of the National Residential Landlords Association, said: "Having operated under emergency conditions for over a year, today's announcement from the government is an important step in ensuring the sector's recovery."

But he said the rent debt crisis must be tackled, adding: "We want to see tenancies sustained wherever possible and call on the chancellor to step in and provide affected tenants with the financial support they need to pay off rent arrears built as a result of the pandemic."

Local Government Association housing spokesman David Renard said the eviction ban "cannot continue indefinitely".

"However, councils remain concerned over the potential rise in homelessness households may face, and the pressure this will add to already over-stretched homelessness services.

"It is vital there is a plan in place to support and protect households to stay in their homes, in as many cases as possible," he said.

In February, the Resolution Foundation said that almost half a million UK families were thought to have fallen behind on rent as a result of the coronavirus crisis.

Alicia Kennedy, director of Generation Rent, called on the government to introduce a Covid "rent debt fund", to allow tenants to clear debts and landlords to claim for lost income.

13/05/2021

Home Office U-turn on coronavirus right to work checks

As far as odd decisions go, it was up there with the best. The Home Office announced on 20 April that its concession to enable employers to conduct right-to-work checks virtually — for the safety of their workforce during the pandemic — was to be scrapped from 17 May.

Let’s make HR staff and employees go into the office for no other reason at all than to conduct right-to-work checks.

Let’s do this despite the fact that the government’s own guidance says that “from 17 May: you should continue to work from home if you can”.

And let’s also do it despite the fact that the right to work of many non-UK workers can now be checked online anyway, so that manual right to work checks involve dragging mainly British citizens into the office to have their British passport checked.

Thankfully someone in the senior echelons of the Home Office has seen sense and a hastily announced update (i.e. a U-turn) has been published today. Virtual right-to-work checks are now allowed up to and including 20 June rather than 16 May. This aligns with step 4 on the “roadmap out of lockdown” for England.

There’s no apology to employers who will have made arrangements to get their HR teams and others safely into the office to conduct in-person (if socially distanced) right-to-work checks in four days’ time. These plans can now be reversed.

We’ll update you with the new deadline for resuming in-person checks shortly.

13/05/2021

£100 million investment visa loan scheme ruled legal after all

A £100 million scheme for loaning migrants the money for an Investor visa was legal after all, the Court of Appeal has ruled. The case is R (Wang & Anor) v Secretary of State for the Home Department [2021] EWCA Civ 679. It overturned a previous Upper Tribunal decision that the scheme did not meet the Investor rules because the money invested was not under the borrower’s control.

The court reached this conclusion reluctantly and criticised the shoddy drafting of the Immigration Rules in allowing the scheme to operate despite what the Home Office intended.

Loans invested in a sister company

Applicants for an Investor visa need to put a minimum sum into qualifying investments such as shares in a British company. The scheme at issue in this case was a way for would-be investors to raise that sum without necessarily being ultra-rich. First they would borrow £1 million from Maxwell Asset Management, incorporated in England but owned by a Cypriot holding company. They were then required to invest that money in a Jersey-registered firm, Eclectic Capital. The loan money passed directly from Maxwell to Eclectic.

The two companies are linked. Maxwell is owned by Russian businessman Dimitri Petrovich Kirpichenko and Eclectic by his wife Nina. Eclectic’s main business activity is securities dealing in Russia. In this way, as the Court of Appeal put it, they were able to “circulate funds, which they originally controlled through Maxwell and which they received back through Eclectic… without investment in what might naturally be regarded as a UK trading company… but rather for the purposes of investments outside the UK”.

Ms Wang paid what was in effect a fee of £200,000 to take part in the scheme, along with over 100 others. But when she came to renew her visa in 2017, the Home Office refused. It considered that the money was not under her “control” as required by the relevant Immigration Rules. This was because “she had not exercised any choice regarding placement of the investment funds with Eclectic”.

Officials also decided that putting the money into Eclectic was not a “qualifying investment”. Paragraph 65(b) of Appendix A prohibits investments in “open-ended investment companies, investment trust companies, investment syndicate companies or pooled investment vehicles”. The Home Office decided that Eclectic was one of these, although it did not specify which.

The Upper Tribunal, in a judgment reported in December 2019, agreed on both counts. Ms Wang appealed.

What does “control” over investment money mean?

Lord Justice Popplewell accepted that “the arrangements make no commercial sense unless the money lent were required in practice to be invested in Eclectic”. But that did not mean that the money wasn’t under Ms Wang’s “control”. That concept, in the context of the “perplexing” Immigration Rules, had to do with the “personal availability” of the money to the Investor applicant. The tight terms and conditions of the loan did not mean that it wasn’t personally available to Ms Wang to invest (even though she never saw a penny of the money):

If the applicant has sole and unrestricted power to direct that the proceeds of the loan are used for a qualifying investment, the personal availability purpose which I have identified is fulfilled. It matters not whether there is a choice within that category amongst various alternatives or Hobson’s choice of only one: the result will be investment in a qualifying vehicle, which ex hypothesi fulfils the purpose of the Investor Migrant scheme in the Rules… The [Home Office] and Upper Tribunal erred in the construction of “control” as a matter of law in treating it as directed to restrictions on use, rather than personal availability.

Popplewell LJ also overruled the tribunal on the “qualifying investment” point. Here, the sticking point was the fact that the Home Office hadn’t specified which of the four prohibited business structures it considered Eclectic to be. Had officials argued that Eclectic was a “pooled investment vehicle”, the judge said, he might have backed them. But the failure to choose one was “fatal to [the] conclusion that it rendered investment in Eclectic ineligible as a qualifying investment”.

The appeal was therefore allowed.

Ms Wang’s solicitor, Leon Chua of Jackson & Lyon, said that this decision will affect not only her but “all the other applicants who borrowed money from Maxwell Asset Management Limited and have been refused for the same reasons. The interpretation of ‘control’ is important to ensure all Tier 1 (Investor) migrants satisfy the Immigration Rules for their further leave or indefinite leave to remain applications”. We understand that the Court of Appeal has refused permission to appeal.

Dreadful drafting strikes again

Popplewell LJ noted:

I have not reached these conclusions with any enthusiasm, and can readily understand why the [authorities] regarded the Maxwell/Eclectic scheme as objectionable… Such a scheme does not fulfil the purpose expressed in Rule 245E of the applicants making a substantial financial investment in the UK as high net worth individuals. This result is, however, a product of the drafting of the Rules… Investor Migrants cannot be criticised if they take advantage of a scheme which is permitted by the terms of the Rules as drafted simply on the grounds that the [Home Office]’s intended objective was that it should not be permitted.

Underhill LJ added:

… the drafting of the relevant rules leaves a great deal to be desired. This Court has repeatedly drawn attention to problems with the quality of the drafting of the Immigration Rules generally and of those parts which govern the points-based system in particular… I very much hope that active consideration is being given by the Secretary of State to a comprehensive review of the drafting of the Immigration Rules.

10/05/2021

Fear of missing out fuels record house prices in April

Average house prices have climbed about £20,000 in the last year, the Halifax says, as the buying frenzy prompted by the stamp duty holiday continues.

Prices are up 8.2% in the last 12 months, the highest annual growth rate for five years, it said.

Altura mortgage broker Rob Gill said "fear of missing out" (FOMO) was driving the surge.

"There's a fear among buyers that they could miss out if they don't hurry up and buy before prices spiral," he said.

The Halifax said that prices rose sharply in April, up by 1.4% compared with March. The average price of a UK home hit £258,204, a record high.

At the Budget, Chancellor Rishi Sunak extended the stamp duty holiday to June. The property purchase tax has been suspended on the first £500,000 of all sales in England and Northern Ireland since July to support the market.

"The stamp duty holiday continues to add impetus to an extremely active market, magnifying the current shortage of available homes as buyers aim to take advantage of the Government scheme," said Russell Galley, managing director at Halifax.

He predicted that the influence of the stamp duty holiday will fade gradually over the coming months as it is tapered out but that low stock levels, low interest rates and continued demand is likely to continue to underpin prices in the market.

10/05/2021

Congolese man unlawfully detained for three and a half years

To a person in detention, particularly in prison, every day of freedom lost matters and the Defendant needs to be able to justify it. In this case I think that principle became lost to sight.

So says the High Court in the case of Louis v Home Office [2021] EWHC 288 (QB), a depressing false imprisonment claim in which the Home Office was taken to task for its appalling treatment of a vulnerable detainee who was held under immigration powers for over four years.

The court found a multitude of failures going “very well beyond maladministration” that resulted in Mr Louis, a care leaver who arrived in the UK aged 13, being unlawfully detained for 42 of the 51 months he spent in immigration removal centres.

The case also shows the necessity of an effective system for monitoring detainee welfare on the prison estate, an issue to which the courts are now becoming alert.

Background

Sam Louis came to the UK from Belgium in 2003, aged 13. He arrived alone and with nowhere to stay – his brother was initially to support him, but turned his back on Mr Louis when he arrived. The teenager was taken into care by Newham Social Services and supported under the often-misused section 20 of the Children Act 1989, initially as a stopgap while his immigration status was resolved.

What should have been short-term support under section 20 lasted for another seven years, during which time social workers did little to regularise Mr Louis’ status. Eventually, in the run-up to his 18th birthday, he applied for indefinite leave to remain on human rights grounds but this was ignored by the Home Office.

In 2010 Mr Louis was convicted of robbery and spent nine months in prison, after which the Home Office decided to detain him. In making that decision, officials characterised Mr Louis as a dangerous criminal, despite the offence being described by the trial judge as “relatively spontaneous low-level street robbery”.

A deportation order was only actually issued after he’d been detained for 26 months.

“Unjustifiable comments”

In his general observations on the case, His Honour Judge Cotter QC writes:

The overriding sense that I have gained from this case is of a lack of any urgency within administrative processes leading to a situation where although months passed without any material progress this was considered acceptable by the Defendant’s employees charged with assessing the need for, and legality of, continuing detention.. the failures, in some cases in isolation and certainly when taken cumulatively, went beyond mere maladministration.

I found the details of the [detention] review process very concerning. The records reveal not only important mistakes and failure to cross reference or acknowledge the existence of outstanding applications/representations, but also repeated failures to adequately read the records, unjustifiable comments, use of stock phrases and inappropriate prejudgment of what the view taken would be even if further evidence was available.

Throughout his detention the Home Office portrayed Mr Louis as dishonest and non-cooperative. The examples were however trivial: one was Mr Louis not remembering the exact spelling of his mother’s name.

On the subject of his cooperation, the court said:

The Claimant was… characterised within detention reviews as a person who had given “no assistance at all” to the Defendant. However, this is simply not correct. From the very outset of immigration detention he provided information that his name was Sam Louis, he was born in Kinshasa on 5th July 1989 and that he had been in the care of Newham Social Services and that his solicitors had been in touch with the Home Office.

Despite this steer, the Home Office did not take the “obvious step” of contacting Newham Social Services. Had they done so, immigration officials “would have been aware of the Claimant’s nine years of accommodation in an area of London close to his brother and sister, that he had an outstanding application, made four years previously, for indefinite leave to remain and as a result had an incentive not to abscond”. Instead Mr Louis’s file was littered with “unjustifiable comments” about his attitude and behaviour which could not have been sustained on “any reasonable evaluation of the full history”.

Dishonesty or desperation

Having shown no issues with his mental health while in prison, Mr Louis’s mental health deteriorated in detention. He complained of hearing voices and showed symptoms of psychosis. He was placed on su***de watch for several months in 2012.

Eventually, in what the court described as an act of desperation, Mr Louis claimed he was not from the Democratic Republic of the Congo after all, and was in fact at risk of persecution in Somalia. The judge had no doubt about the reason for this change of story:

had the Claimant not been in detention, as he should not have been, he would not have claimed to be from Somalia. His desperation at continued detention was the main cause of the lying.

The Home Office instead painted him as “utterly non-compliant”; the incident only served to further justify his detention.

In April 2014 the DRC authorities finally confirmed Mr Louis as Congolese, essentially the same information Mr Louis had provided when he was first detained in May 2011. Even with his nationality confirmed, the Home Office still failed to act with reasonable diligence. Despite there being no timeframe for an emergency travel document, the Home Office continued to detain him for another 12 months.

Thrown out on the street

In April 2015, following the intervention of Bail for Immigration Detainees, Mr Louis was finally released. In what seems to be a moment of spite, the Home Office put him out on the street late in the evening with no money. Fortunately his sister was able to collect him.

A few months later, Mr Louis was detained again for another three and a half months, despite full compliance with his reporting restrictions. He applied for bail, but was refused due to the bail judge being informed, “wholly incorrectly, that the Claimant was only located by chance and otherwise would still have been at large”. The High Court leaves open the possibility that the tribunal was “deliberately misled”.

Mr Louis was finally granted bail in January 2016 and his human rights appeal allowed in November 2019, concluding a decade of turmoil.

Appalling mismanagement of vulnerable detainee

This summary does not capture all the Home Office wrongdoing covered in the lengthy factual background. The judgment exposes how officials tried to mask their own lack of progress with unwarranted, perhaps malicious assertions about the claimant’s character and demeanour to justify his ongoing detention.

Cases as extreme as Mr Louis’s are thankfully rare. But where they do occur, it is difficult to see how the courts can remedy the damage done. For Mr Louis, compensation and seeing the Home Office being told off may be enough; more likely it will be little comfort considering the horror he went through for four long years of his life. It raises the question of whether the courts are able to properly sanction the Home Office for failings on this scale.