UK court rules detention of Indian student unlawful

Manish Kumar, 21, arrived at Manchester airport on August 30, 2022, and was detained for days before being released on bail. At one point, it looked like he would be put on a flight back to Delhi. (Illustration by Suneesh K.)

An Indian student who was detained at Manchester airport and had his UK student visa cancelled won a major victory from the High Court in London after Judge Dight ruled on Tuesday (11 July 2023) that the process adopted by the UK Border Force officials was “unfair and fundamentally flawed”. This was because the officials wrongly failed to allow him access to a solicitor, which he requested. The case also highlights the importance for international students coming to the UK to keep their local address handy and share it promptly with immigration officials if asked for it.

Manish Kumar, 21, had a student visa to study at York University and landed on 30 August 2022 at Manchester airport travelling from Delhi with a stopover at Helsinki on a Finnair flight. Upon arrival, the immigration officer was not satisfied that Kumar was a genuine student because he was not able to provide the address where he would be staying in the UK and also failed to explain how he would be supporting himself financially. He was then formally detained for further examination and was served with an IS81 form which also notified that his permission to enter the UK had been suspended.

After being questioned again on his address and funding arrangements, Kumar was then kept in the “holding area” in Terminal 1. The immigration officials maintain that his answers had apparently still not satisfied them that he was seeking entry as a genuine student. After being in detention for over six hours, Kumar’s solicitor Zubair Awan emailed the duty officer at Manchester airport seeking copies of interview notes and decision notices. Awan also requested that Kumar should be released and enclosed a bail application. Awan had two more clients who were similarly held at Manchester airport.

Over the next few hours Kumar’s luggage and backpack were searched and his fingerprints were taken. Immigration officials claimed that he had initially refused to give his fingerprints and was faking illness. Notes made by the officials who spoke to him described him as uncooperative. They also recorded that Kumar barely spoke in English, a contention which Kumar says is not correct. On the morning of August 31, after almost 18 hours of his arrival, he was taken to an interview room in Terminal 2 where after just 15 minutes the interview was terminated. Kumar asked for his solicitor to be present, a request which was denied by the officer, following which he refused to be interviewed.

Interestingly, Kumar’s solicitor was permitted to be present during similar interviews involving another client who had also landed in Manchester in the same flight as Kumar. Awan assisted that client by taking part in two interviews through conference calls that lasted 90 and 60 minutes. Surprisingly, Kumar was denied the same opportunity and it was this denial that became the basis for his legal action in the high court.

Kumar was again sought to be interviewed on September 1 where he repeated his request for his solicitor to be present. On the same day, citing Kumar’s alleged non-compliance, he was served with the decision of cancellation of his student visa and removal to India. Kumar was told that he did not have the right to have a solicitor present during the interview, but could have one before and after. He was set to be put on a flight to Delhi on September 2. A copy of the decision was given to Awan who promptly lodged an urgent application for interim relief in a court. This led to Kumar’s removal being deferred by 48 hours bringing him some reprieve. On September 5, a judicial review claim was filed which prevented the removal of Kumar till the issue was decided.

The next day, September 6, Kumar made an application for bail to the First Tier tribunal which was rejected on September 8 by an Immigration judge citing high risk of non-compliance with any bail conditions. Finally, Kumar was released on immigration bail on October 27, 2022, after he tactically claimed asylum a day earlier.

Kumar’s appeal to quash the decision of the immigration officials was heard on January 31 and February 10, following which Judge Dight ruled that Kumar’s “right of access to justice was not honoured”. The immigration officials characterized Kumar’s request for the presence of a solicitor as an “unreasonable excuse for not cooperating with the interview process,” while the judge ruled that there was no justification for the exclusion of Kumar’s solicitor from the interviews. The judge also noted that officials could have allowed the solicitor to be present remotely at the interview just as it was done for the other client who was also detained at Manchester airport.

Kumar lost an academic year and is entitled to damages, although it is unclear if he would still want to study in the UK.