Brazilian visitor detained but ultimately victorious

In our fairly recent vlog and blog (28 February, “Care Worker Removed”) we told you about the sad case of Ms Ancy Andrews, an Indian national who held a skilled worker healthcare visa and who was apprehended working illegally by the Home Office. Her visa was cancelled and she was ultimately unsuccessful in her challenge in the High Court.

An important issue in this case was what is the correct definition of a “volunteer”? To cut a story short, the Home Office and the court decided that she was not one of those. 

The ultimate moral or principle we drew from this case was the self-evident one that the Home Office are pretty ruthless. But sometimes things do not go the Home Office’s way, and we want to tell you a different and contrasting story, also about a visitor working in breach of conditions. 

In this instance it was Ms Keren Thadeu, who is a Brazilian national. She came to the UK as a visitor in August 2024. She saw an advertisement from a hostel called Saint James Backpackers, based in Earl’s Court, West London. She made an agreement with them whereby she would work there as a “volunteer” for 30 hours per week and get two meals a day and free accommodation. 

The following month Home Office officials paid a visit to this hostel, and events took a turn closely similar to those in Ms Andrews’ case. Ms Thadeu was deemed to be working illegally or in breach of conditions, she was detained, her leave was cancelled, and she instructed her solicitors to fight. 

It is fair to say that it did rather look as though she was on the wrong side of the rules. Saint James Backpackers is not a registered charity and here she was running into the same problem as Ms Andrews; she did not look anything like a “volunteer” in the legal meaning. 

But here things became relatively complicated; it turned out that the Home Office had made a mistake (oh no, surely not – Ed). In its decision letter the Home Office had relied on an old version of the immigration rules. As we at GSN Immigration tell people repeatedly, and almost every day of the year, you must always rely on the current version of the immigration rule in question. 

The Home Office evidently realised their mistake at some point, and a few weeks later they made a new decision, under the correct rules, but the decision was the same, ie negative. However, the new decision was not written as thoroughly as the first decision and it was arguably legally defective, which was another mistake.

There was no right of appeal against the Home Office’s decision, and so her solicitors leapt into action and lodged a claim for Judicial Review at the High Court. The gist of the grounds was that Ms Thadeu had not realised that she was acting in breach of the rules and, furthermore, that the Home Office decision-making had not been done correctly. 

Specifically, the Home Office published policy guidance in this area – which contains elements of discretion and flexibility – had not evidently been considered by the decision-maker and Ms Thadeu had not been given sufficient opportunity to make representations. And, additionally, since the first decision (which was unlawful and thus nullified) was made, but before the second decision had been made, more information and evidence about the case had been submitted to the Home Office by her solicitors within their legal representations, but the Home Office had not considered them. 

This could be a classic Judicial Review application: it is not necessarily made on the basis that a decision was “wrong” but rather on the basis that the way the decision was taken was not correct or lawful. Indeed, Ms Thadeu’s lawyers freely admitted that she had been in breach of conditions, albeit not knowingly. 

And Ms Thadeu had been kept in detention for some eight weeks, so there was a lot at stake here: if the Home Office’s decision to cancel her leave was ultimately deemed to be unlawful then she would surely be able to claim compensation for unlawful detention. 

Happily for Ms Thadeu the court came down very firmly in her favour; it stated that the Home Office’s decision-making had been “slipshod”. The decision to cancel her leave was deemed to be unlawful and was quashed. The decision to detain her was not deemed to be unlawful but the decision not to release her from detention at an appropriate point was deemed to be unlawful. So Ms Thadeu is now able to claim financial compensation in the County Court. 

We find this case makes a particularly interesting story because it goes to show that even if a migrant is in breach of conditions they may still succeed in a legal action if a decision has been made unfairly or unlawfully.

If you are involved in any of this kind of thing you are welcome to contact us at GSN Immigration and we will do our best to help you or point you in the right direction. 

Oliver Westmoreland

Senior Immigration Lawyer