COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Judge Crawford Lindsay QC
District Judge Lightman
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE THOMAS
LORD JUSTICE JACOB
| ID & OTHERS
|- and -
|THE HOME OFFICE
Stuart Catchpole QC and Jenni Richards (instructed by the Treasury Solicitor) for the Respondents
Richard Gordon QC, Nadine Finch and Richard Hermer (instructed by Birnberg Peirce & Partners) for Bail for Immigration Detainees and the Immigration Law Practitioners' Assocation as Interveners
Hearing dates: 23rd – 24th November 2004
Crown Copyright ©
|1.||The Claim made in the County Court||2|
|2.||The scope of the Immigration Act 1971||15|
|3.||The power of the immigration officer to detain||24|
|4.||The general scope of Article 5||28|
|5.||The claimants' formulation of the challenges made||34|
|7.||The causation of the alleged loss: the detentions by the immigration officers||54|
|8.||The immigration officers' claim to immunity for their actions||60|
|9.||The scope of the remedy||77|
|10.||The effect of the Human Rights Act 1998 on the remedy||90|
|11.||Conclusion on the main issues as to immunity and the remedy||113|
|12.||The contentions in respect of Articles 2, 3 and 8||124|
|13.||Result of the appeal||128|
Lord Justice Brooke:
This is an appeal by the claimants, who are a Czech family of Roma ethnic origin, against an order made by Judge Crawford Lindsay QC in the Central London County Court on 7th April 2004. The judge had allowed an appeal by the Home Office against an order made by District Judge Lightman in the same court on 7th August 2003 who had struck out their application to strike out (or grant them summary judgment in respect of) significant parts of the particulars of claim.
(i) a declaration that the Home Office had acted incompatibly with their Convention rights, and in particular those arising out of Articles 2, 3, 5, 8 and 14 set out in Schedule 1 to the Human Rights Act 1998 ("the 1998 Act");
(ii) a declaration that the Home Office had wrongfully discriminated against them contrary to section 29 of the Sex Discrimination Act 1975 and/or sections 19B and/or 20 of the Race Relations Act 1976;
(iii) damages for false imprisonment;
(iv) damages for negligence;
(v) aggravated and/or exemplary damages.
"I consider that the appellants may face a very uphill struggle; but the relation between (1) administrative detention under the immigration legislation, (2) the tort of false imprisonment, and (3) Article 5 of the ECHR is fit for examination in the Court of Appeal and this is an appropriate case for that to be done."
"3(1) Except as provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period…"
"4(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom…shall be exercised by the Secretary of State…
(2) The provisions of Schedule 2 to this Act shall have effect with respect to -
(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully; and
(d) the detention of persons pending examination or pending removal from the United Kingdom…."
"…a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers contained in Schedule 2 to this Act…"
"28 A (1) A constable or immigration officer may arrest without warrant a person –
(a) who has committed or attempted to commit an offence under section 24 or 24A; or
(b) whom he has reasonable grounds for suspecting has committed or attempted to commit such an offence"
Sections 28A(3)-(5) contain further powers of arrest without warrant that are granted to immigration officers in connection with offences created elsewhere in Part III.
"(3) In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State."
Paragraph 2 empowers an immigration officer to examine any persons who have arrived in the United Kingdom for the purpose of determining the matters prescribed in that paragraph. Paragraph 4 provides that where such a person is to be given a limited leave to enter the United Kingdom or is to be refused leave,
"the notice giving or refusing leave shall be given not later than twenty-four hours after the conclusion of his examination (or any further examination) under [paragraph 2]."
"16 (1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10 or 12 to 14, that person may be detained under the authority of an immigration officer pending -
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions.
17 (1) A person liable to be detained under paragraph 16 above may be arrested without warrant by a constable or immigration officer.
18 (1) Persons may be detained under paragraph 16 or such places as the Secretary of State may direct….
(4) A person shall be deemed to be in legal custody at any time when he is detained under paragraph 16….
21 (1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him."
i) detention under the authority of an immigration officer pending:
a) examination by an immigration officer; or
b) a decision to give or refuse leave to enter; or
c) a decision whether or not to give removal directions.
ii) detention under the authority of the Secretary of State pending:
a) the making of a deportation order; or
b) a deportee's removal or departure from the country;
iii) arrest without warrant by a constable or an immigration officer pursuant to the powers created by section 28A of the Act, para 17(1) of Schedule 2 or para 7 of Schedule 3.
i) pending the examination of the first claimant at Oakington;
ii) pending the decision to refuse her leave to enter; and
iii) pending the decision whether or not to give removal directions.
i) The power to detain pending examination and decision is not subject to any qualification to the effect that the Secretary of State must show that detention is necessary because the applicants would run away if not detained;
ii) Nor is it limited to those who cannot appropriately be granted temporary admission, for whatever reason;
iii) The period of such detention must be reasonable in all the circumstances;
iv) The immigration officer must act reasonably in fixing the time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making.
"… [A]s the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case."
i) The lawful detention of a person after conviction by a competent court (5(1)(a));
ii) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence (5(1)(c));
iii) The lawful detention of persons of unsound mind (5(1)(e));
iv) The lawful arrest or detention of a person to prevent his effecting an unauthorised entry in the country…(5(1)(f)).
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
"If it fails either test, it is unlawful for the purposes of article 5 and 5(5) applies. Here the detention failed the domestic law test (Evans (No 1)) and, like English law, article 5(5) requires compensation to be paid."
"The second question is whether, assuming that the detention is lawful under domestic law, it nevertheless complies with the general requirements of the Convention. These are based upon the principle that any restriction on human rights and fundamental freedoms must be prescribed by law: see articles 8 to 11 of the Convention. They include the requirements that the domestic law must be sufficiently accessible to the individual and that it must be sufficiently precise to enable the individual to foresee the consequences of the restriction… The third question is whether, again assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate…"
"Thus the relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary. Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of State's published policy, which, under principles of public law, he is obliged to follow. These appeals raise the following questions:
(1) What is the Secretary of State's policy?
(2) Is that policy lawful?
(3) Is that policy accessible?
(4) Having regard to the answers to the above questions, were N and A lawfully detained?"
i) Detention should be a last resort;
a) "The White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention." (38.1)
b) "In all cases detention must be for the shortest possible time. The aim should be to detain at the end of the process." (38.1)
c) "All reasonable alternatives to detention must be considered before detention is authorised." (38.3)
ii) Detention must be strictly necessary when the consequences are the splitting up of a family;
"It may be necessary on occasion to detain the head of the household only, thus separating a family … it would have to be shown to a court that a decision to detain corresponded with one of the legitimate interests which justify interference and that the interference to family life went no further than was strictly necessary to achieve that aim." (184.108.40.206)
iii) There had to be strong grounds for believing that individuals were absconding risks or that they had no incentive to comply with temporary admission;
"There is a presumption in favour of temporary admission or temporary release. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified." (38.3)
iv) Detention may be appropriate if there has been subterfuge or deception practised by individuals in order to enter the United Kingdom;
"Factors influencing a decision to detain: …Has the subject taken part in a determined attempt to breach immigration laws?" (38.3)
v) The detention of a family with children, or of children themselves, is to be effected only as a last resort and/or where it is necessary;
"Families will normally only be detained to effect removal, and detention should be planned to be effected as close to removal as possible so as to ensure that families are not detained for more than a few days." (38.3)
"37. States Parties shall ensure that:
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."
For the duty to interpret the ECHR in the light of other obligations in international law, including treaty obligations, see T and V v United Kingdom (2000) 30 EHRR 121 at para 76.
i) was unreasonable (Head 1);
ii) was disproportionate (Head 2);
iii) was unlawful because of a failure to follow applicable internal policy (Head 3);
iv) failed to safeguard or protect the best interests of the two children (Head 4); and/or
v) was unlawful at common law (Head 5).
i) that detention should be a last resort;
ii) that where the consequences were the splitting of a family, a test of strict necessity should be applied before detention was authorised;
iii) that in order to justify detention in this case there had to be strong grounds for believing;
a) that ID or AD represented absconding risks;
b) that ID or AD had no incentive to comply with the terms of temporary admission; and/or
iv) that to justify detention on the grounds of deceit, there had to be subterfuge or deception practised by the claimants in order to enter this country.
i) to the suitability of other detainees who were to be detained at the Centre with the children;
ii) to the suitability of detaining the two children with adults;
iii) to the fact that detention would not safeguard and promote the welfare of the two children.
i) the claimants were not absconding risks, and removal was not sufficiently imminent to justify detention;
ii) even if they were to be regarded as absconding risks, removal could not reasonably be said to be sufficiently imminent or possible within a reasonable timescale, having regard in particular to the age of the two children;
iii) insufficient or no regard was had for:
a) the claimants' safety;
b) fire safety;
c) the safety of the claimants from the criminal acts of others.
i) exposed them to a real risk to life; and/or
ii) [led them to face] a real and immediate risk to life of which the Home Office had actual or constructive knowledge, and in respect of which it failed to offer sufficient protection and/or to take operational steps to secure Yarl's Wood as safe.
6. The evidence
"Mechanisms of application for Adjudicator bail and challenges in the High Court are frequently not exercised as a result of a lack of access to effective legal representation. In BID's experience, current policies and practices of immigration detention render those detained exceptionally vulnerable to unlawful detention as there is no adequate check on the power of the immigration service to detain. In BID's opinion, pursuit of civil actions by former detainees provides a crucial mechanism for redress and holding those responsible to account. The importance of access to quality legal representation, and a right to seek damages, is even more important given the increase in the use of detention under fast track processes and the increase in the use of detention for families."
i) The detentions were caused at each stage of the history by the immigration officers who authorised them;
ii) The fact that their authority was given protects the detention centre staff and others who acted under their authority, but it does not protect the immigration officers themselves if the giving of their authority was an unlawful act;
iii) Subject to any particular considerations arising out of the interpretation of Schedule 2 to the 1971 Act, on first principles the claimants, having been deprived of their liberty, would have the makings of a claim against the relevant immigration officer arising out of their detention, and the burden would lie on the immigration officer to establish a defence to that claim, whether by way of lawful justification or otherwise;
iv) Although the decision in each case was that of the immigration officer in whom statutory authority was vested, it was not argued that the Home Office did not have vicarious responsibility for their acts – and if it had been, the matter would have been readily corrected by appropriate amendments to the title of the suit and the joinder of new parties.
"In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their jurisdiction."
See, also, Wade and Forsyth, Administrative Law, 9th Edition (2004) at p 751:
"Public authorities, including ministers of the Crown, enjoy no dispensation from the ordinary law of tort and contract, except in so far as statute gives it to them. Unless acting within their powers, they are liable like any other person for trespass, nuisance, negligence and so forth. This is an important aspect of the rule of law."
"The point of law is to-day not as simple as it was, comparatively speaking, some years ago. The recent decisions of this House in Board of Education v. Rice  AC 179 and in Local Government Board v. Arlidge  AC 150 indicate that in the case of administrative awards there are at least some enforceable obligations which those making them must observe. What these are and to what extent they go has to be ascertained by considering the statutes creating the quasi-judicial powers, and the particular forms in which a general principle has been implied in the establishment of such judicial authority. This question may prove in particular cases a delicate and obscure one. Some limitation of the application in such instances of the broad principle of complete judicial immunity may well prove to be involved in its resolution."
"If a man is required in the discharge of a public duty to make a decision which affects, by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of his duty to the public and then to leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision."
"This wide statement ought probably to be confined to decisions made within jurisdiction, since at the time it was made there was undoubtedly liability for interference with personal liberty or property where there was no jurisdiction. It probably means no more than that members of a tribunal which acts within its jurisdiction and in good faith are not personally liable to actions for negligence or for acting on no evidence. In this case the House of Lords were aware of the need to define judicial immunity with reference to the growing adjudicatory powers of administrative authorities, 'a fresh legal problem of far-reaching importance' (see Lord Haldane at p 659) but they did not attempt to do it."
"… [N]o member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive." (Eshugbayi Eleko v Government of Nigeria  AC 662 per Lord Atkin at p 670).
"[I]n English law every imprisonment is prima facie unlawful and … it is for a person directing imprisonment to justify his act. The only exception is in respect of imprisonment ordered by a judge, who from the nature of his office cannot be sued, and the validity of whose judicial decisions cannot in such proceedings as the present be questioned." (Liversidge v Anderson  AC 206, per Lord Atkin at p 245).
"The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage." (Murray v Ministry of Defence  1 WLR 692, per Lord Griffiths at pp 703-3).
"It represents the traditional common law view. It points to a decision in the present case that the applicant is entitled to recover compensation on the ground of false imprisonment where the executive can no longer support the lawfulness of the detention."
"One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests… [A]s it is conceded that by the law of nations the supreme power in every State has the right to make laws for the exclusion or expulsion of aliens, and to enforce those laws, it necessarily follows that the State has the power to do those things which must be done in the very act of expulsion…"
"It seems clear from that case that by international law any country is entitled to expel an alien if his presence is for any reason obnoxious to it; and as incidental to this right, it can arrest him, detain him, and put him on board a ship bound for his own country."
"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
The word "subjects" needed some qualification in 1924 because aliens lawfully within this country in time of peace were accorded the same civil rights as British citizens (Johnstone v Pedlar  2 AC 262).
"… [D]oes our law's protection extend to aliens and non-patrials? There is a suggestion that because an alien is liable to expulsion under the royal prerogative and a non-patrial has no right of abode, it is less difficult to infer a parliamentary intention to deprive them of effective judicial review of a decision to infringe their liberty….
Habeas corpus protection is often expressed as limited to 'British subjects.' Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic 'no' to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed 'the black' in Sommersett's Case (1772) 20 St Tr 1. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed."
See also Lord Templeman at p 127E-8G.
"(1) … [I]ndividuals requiring leave to enter enjoy no right or presumption that they should be entitled to be at large before leave is granted;
(2) A wide discretion is given to the Immigration Officers not only whether to admit detain or release but also in respect of the investigations they are entitled to make;
(3) The relevant statutory provisions are concerned with the giving of authority to detain; actual detention is in hands of other persons;
(4) It is not contested in this case that the Plaintiff was lawfully detained at all times; and
(5) It is not contended that an invalid decision authorising detention makes the detention unlawful."
"The powers given to immigration officers by the Act are quintessentially those which are enforced by judicial review, and in the normal way if a decision to release an immigrant is improperly delayed the remedy is an order of mandamus, not to release the immigrant, but to come to a decision whether to release or not. If that decision is improperly taken the remedy is again to seek a prerogative order, this time certiorari. In both cases no personal cause of action exists which could give a right to recover damages for breach of statutory duty and no such breach is alleged."
"The essence of the allegation made is that the decision making body has 'negligently' taken into account matters it should not have taken into account by having regard to some irrelevant, and indeed if the allegation be right, misleading information, namely that contained in the questionnaire. But this cannot constitute the tort of negligence. If it did it is difficult to see why any maladministration does not give rise to a liability to pay damages at common law. In fact it is because there is no liability to pay damages for maladministration in the ordinary way that the Central and Local Government 'Ombudsmen' are required to investigate maladministration and where they find a complaint proved to exercise their discretion as to whether to recommend the payment of compensation."
"In gathering information and taking it into account, the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply."
"Lord Moulton may in the context of that case have been contemplating immunity from suit for negligence but the sentiment supports the concept of it not being fair or reasonable to impose liability for negligence in the case of an immigration officer performing his public duty."
"That condition precedent would not be fulfilled if no such intention had been formed, or if the intention had been formed in bad faith, but otherwise once notice is given in accordance with the regulations to a person liable to be deported, that person may be detained, and his detention will be lawful even if the notice is later withdrawn or set aside."
He had earlier said (at p 170) that the Home Secretary's action was "plainly not ultra vires", although it may have been irrational and therefore liable to be declared void.
"When notice has been given to a person in accordance with regulations under Schedule 18 of this Act of a decision to make a deportation order against him… he may be detained under the authority of the Home Secretary pending the making of the deportation order."
He observed that where the requirements of that paragraph were satisfied, the detention was lawful and no claim for false imprisonment could be maintained.
"A decision made by the Secretary of State in good faith against a person liable to be deported is a decision within the contemplation of the paragraph even if it later appears that it is a decision which he should not have made or which he should not have made without further consideration."
"The authorities are at one in treating it as a tort of strict liability. That strikes the right balance between the liberty of the subject and the public interest in the detection and punishment of crime. The defence of justification must be based upon a rigorous application of the principle that the liberty of the subject can be interfered with only upon grounds which a court will uphold as lawful."
i) The detention must be lawful under domestic law;
ii) As an extra requirement, domestic law must be sufficiently accessible to the individual and sufficiently precise to enable him to foresee the consequences of the restriction on his rights;
iii) Domestic law must not be arbitrary (in the sense that it was resorted to in bad faith) or disproportionate.
Since the last two months of detention in ex p Evans were not lawful under domestic law, the defence of lawful justification would have fallen at the first hurdle under the ECHR.
"Imprisonment involves the infringement of a legally protected right and therefore must be justified. If it cannot be lawfully justified, it is no defence for the defendant to say that he believed that he could justify it. In contrast with the tort of misfeasance in public office, bad faith is not an ingredient of the tort; it is not a defence for the defendant to say that he acted in good faith."
"It is contrary to principle that the executive should not be liable for illegally interfering with the liberty of the subject. The remedy of habeas corpus and the tort of false imprisonment are important constitutional safeguards of the liberty of the subject against the executive."
"In the present case, the State (through the legislature) has defined the power of detention; the State (through the executive) has detained the plaintiff in excess of that power; it creates no injustice that the State should compensate the plaintiff. It certainly does not make it just for the State to fail to compensate the plaintiff that one or more emanations of the State have misunderstood the legislation. Under the Convention, the State is already under an obligation to compensate; when the Human Rights Act 1998 comes into force it will also be under a domestic law obligation to do so."
"The rule of procedural exclusivity does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision."
"In its judgment a magistrates' court acted in excess of jurisdiction in three circumstances only if: (1) it acted without having jurisdiction over the cause; (2) if, although it had jurisdiction, it were guilty of some gross and obvious irregularity of procedure, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent."
""Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity."
Lord Justice Thomas:
Lord Justice Jacob: