Last April, marked 12 months since changes were made to the immigration rules for migrant domestic workers. These changes followed the independent review by James Ewins who was asked to assess how far the then existing arrangements for workers were effective in protecting them from abuse. One of the main recommendations in the review and accepted by the government, was the introduction of group information meetings. These should provide a safe, comfortable and confidential space for workers to get independent information, advice and support concerning their employment and immigration rights while at work in the UK. They are also an opportunity for workers to come together, socialise and share their experiences with each other.

More than 12 months have passed since the government responded to the independent review and made changes to the immigration rules. During this time approximately 17,000 domestic workers will have arrived in the UK to work for their employer. Regrettably the government has still to implement the information meetings so workers remain uninformed of their rights in the UK. Unfortunately the changes made to the immigration rules are of no worth to domestic workers who are not aware of and are able to enforce their rights.

The issue on this appeal is comparatively narrow, but it arises out of a particular situation which occurs quite frequently in connection with applications by non-nationals for leave to remain in the UK and which has generated a number of cases in the First-tier and Upper Tribunals. I will set out the essentials of the situation in generic terms – what I will call the paradigm case – before turning to the facts of the instant case. In doing so I will refer to the law as it stood in 2013, which is the relevant date for our purposes; but it should be noted that it has since changed in some important respects.

In the recent case of Ibori v Secretary of State for the Home Department (“SSHD”), the High Court ruled that the SSHD had abused her immigration powers to detain a foreign criminal in the UK to face confiscation proceedings. The SSHD’s policy within the Enforcement and Instructions Guidance (“EIG”) explicitly states that immigration detention must only be used for one of the statutory purposes, namely for preventing a person’s unauthorised entry or with a view for a person’s removal (although not necessarily deportation). In addition it states that any detention must comply with domestic and ECHR case law and should only be used for a reasonable period in all the circumstances.

Mr Ibori, a Nigerian national, was serving a 13-year prison sentence in the UK for embezzling public funds as the ex-governor of Delta State, Nigeria. He had been issued a notice to initiate proceedings to confiscate his assets pursuant to s71(1)(a) Criminal Justice Act 1988. The SSHD informed Mr Ibori that he was liable for automatic deportation as a foreign criminal pursuant to s32 Borders Act 2007 and subsequently on 8 May 2015 issued a deportation order. Mr Ibori was due to be released on licence on 20 December 2016 but the SSHD wrote on 8 December stating, ‘we cannot deport Mr Ibori until the confiscation matter had been resolved,’ and thereafter issued an order for his immigration detention the following day.

Mr Ibori’s solicitors filed for a judicial review of the both the decision not to deport him and the decision to detain him. In doing so the CPS were asked whether they objected to Mr Ibori’s removal to Nigeria upon his conditional release from prison. The CPS responded that ‘any decision regarding the deportation is a matter for the Secretary of State for the Home Department.’ Upon urgent consideration of Mr Ibori’s judicial review claim, the judge ordered Mr Ibori’s immediate release from immigration detention on the condition that he remained with the jurisdiction. On 13 January the SSHD finally allowed Mr Ibori to depart the UK voluntarily, thus he managed to avoid the stigma of being depoted. In this case it was clear that the SSHD had disregarded the limits on her to detain Mr Ibori. Accordingly, his detention for a period of one day, 18 hours and 10 minutes was declared unlawful.

Gherson Immigration: http://tiny.cc/xzytly

SSHD v Mosira [2017] EWCA Civ 407 (08 June 2017)

1. This is an appeal by the Secretary of State in an immigration case. The case concerns Mr Mosira, a citizen of Zimbabwe, who came to this country at the age of 17 in 2004 pursuant to the Secretary of State's family reunion policy promulgated in 2003 ("the 2003 policy") to join his mother, who had previously been granted refugee status to stay in the United Kingdom. Under the 2003 policy, Mr Mosira was himself granted refugee status by the Secretary of State.
2. In 2012, Mr Mosira was convicted on two counts of sexual activity with a girl less than 16 years old, who had been aged 13 at the relevant time. Mr Mosira had been aged 25. He was sentenced to concurrent terms of imprisonment for 3 years. There is no dispute that this constituted serious criminal offending. There is also no dispute that Mr Mosira qualifies as a "foreign criminal" for the purposes of section 32 of the UK Borders Act 2007.

3. The Secretary of State gave notice that she intended to make an order to deport Mr Mosira back to Zimbabwe when he was released. She purported to give notice of cessation of his refugee status and then finalised her decision to make a deportation order.

4. Mr Mosira appealed to the First-tier Tribunal ("FTT"). His appeal was dismissed in circumstances discussed below. On appeal, by a decision of September 2014 the Upper Tribunal (UT Judge Clive Lane) allowed his appeal and set aside the FTT's decision, directing instead that there should be a fresh consideration by the Upper Tribunal itself of his appeal against the Secretary of State's decision.

5. In a decision promulgated on 14 August 2015, the Upper Tribunal (Knowles J and UT Judge McWilliam) re-made the decision on Mr Mosira's appeal. It allowed the appeal. It held that it had not been open to the Secretary of State to withdraw Mr Mosira's refugee status in the way she did and, in view of the low risk to the public now presented by Mr Mosira, it held that there was no sufficient public interest in deportation to justify his removal for the purposes of the 1951 Refugee Convention. This is the decision against which the Secretary of State now appeals, with permission granted by Rafferty LJ.

Conclusion
52.  This is a case in which the legal analysis proposed by the Secretary of State became confused at an early stage and was never reviewed and rectified. It also became procedurally very messy. However, the ultimate conclusion is in my view clear: the appeal should be dismissed.
Henderson LJ: